Abstract

Immanent tensions of tort law vibrate apparently with greater amplitude regarding the so-called ‘loss of life’ claims of secondary victims (family members) for non-pecuniary damages. The loss of a loved one cannot be expressed in terms of money, yet tort law attempts to do so. Deterrence and punishment are basically alien to civil liability (at least in the civil law tradition), but there is an element of punishment involved. It is impossible to serve two masters; nevertheless, both predictability of law and individual justice are sought at the same time. There is a constant fear of unfounded claims, yet there is also a tendency to release the surviving family member(s) from the burden of proving feelings that are difficult to quantify (if possible at all).

In this paper, a multi-dimensional model is created for a better understanding, based on those tensions and the possible combinations of solutions provided by the legal systems to them. While some contrasts are highlighted (eg first, having legislative acts according to which particular relatives are entitled to compensation and in what particular amount; or on the contrary, leaving matters to the discretion of the trial judge; and second, whether the degree of relation matters and/or emotional proximity is crucial), reference is also made to the still unanswered basic questions, such as what actually is the loss to be compensated: the grief and sorrow felt in itself, the aggravation of the claimant’s own life (among others, loss of guidance, care and companionship), the loss to the integrity of the family as a value, or finding the energy to deal with the loss and therefore not investing in other constructive purposes or life goals?

The analysis of the author’s own legal system, ie of the Hungarian approach, recently rich in variety, and some additional comparative remarks provide the first test of the model and allow some general conclusions.