According to German liability law a defendant is liable for consequential harm which has only arisen because of the special condition of the plaintiff. A psychological susceptibility, which leads to disorders and consequential harm - perhaps incapacity to work - which would not have occurred with the vast majority of human beings, can be included in these individual conditions. In principle, the plaintiff - according to the egg shell rule - has to compensate for such consequential harm, although the present decision makes it clear that such a special psychological condition can be taken into account to reduce the level of damages which the defendant has to pay. But the case law has applied two exceptions to the principle that the defendant has to compensate for such consequential harm. (1) Liability can be excluded for insignificant injuries (minor injuries) which can only lead to such consequential harm on the basis of the special psychological condition of the plaintiff. (2) A particular psychological defect i.e. the uncontrollable desire for premature income payments (so-called compensation neurosis) should not be attributed to the defendant in every case, so that an incapacity for work on the basis of such a compensation neurosis does not necessarily represent compensatable harm. The present decision seems to place limits on the assumption of such a "wish neurosis" too easily.

[Heading and summary of legal issues omitted]

BGH judgment of 11th November 1997 - VI ZR 376/96 (Hamm)

Facts:

The plaintiff is claiming compensation for a traffic accident of the 3rd February 1986, for the consequences of which the defendant has to assume liability as the liability insurance undertaking. In the accident, the car insured with the defendant struck the front of the plaintiff's car obliquely and damaged the side of it substantially, as a result of which the plaintiff who was wearing a seatbelt struck his head on the door frame. A radiological examination in a hospital outpatients department, in findings that are not conspicuous in simple neurological terms, established bruising of the skull with trauma associated with the twisting of the cervical vertebrae but without external injuries or signs of concussion. According to the opinion of the doctor there was a five-day unfitness for work and outpatient GP care would suffice. Subsequently the plaintiff claimed for further physical impairment and symptoms of immobility, which he traced back to the injuries suffered in the accident. On the basis of these disorders in 1987 he gave up a furniture business which he had carried on since 1982. By his claim he asks for refund of his loss of earnings of 3360 DM per month (less monthly payments of pension insurance), and compensation for pain and suffering over and above the pre-trial payment of 7000 DM, for which he regards a total sum of 50,000 DM as reasonable. He also seeks a declaration that the defendant was under a duty to provide compensation for future harm, insofar as the claims have not passed to the Department of Social Security.

The Landgericht rejected the claim. The Court of Appeal rejected the plaintiff's appeal. His appeal in law led to quashing of that judgment and reference back.

Reasons:

1. The Court of Appeal, in contrast to the Landgericht, does not regard the plaintiff's claims for compensation for harm as time barred. But it considers that neither his inability to earn nor his further physical infirmities are, in tort terms, traceable to the road traffic accident.

The problems in the region of the lumbar vertebrae were the subject of a predisposition or based on degenerative prior harm. Whether this also applied to the problems in the region of the cervical vertebrae could be left undecided as these problems were in any case not based on organic changes caused by the accident. It was instead a case of psychogenic physical disorders. According to the convincing report of the expert witness, the plaintiff had already suffered before the accident from a so-called narcissistic personality disorder which in combination with work and partnership problems had been activated by the accident. The plaintiff had thereby accentuated and extended the problems, which had originally come into existence through the accident injury, in connection with which wishes for security and compensation had played a role. Although the defendant had in principle to be responsible even for adverse psychological effects of the consequences of the accident, and the plaintiff's special susceptibility to harm had also to be accounted for by him, boundaries were nevertheless set to such a liability. Thus case law had denied liability for compensation neurosis or wish neurosis because the plaintiff in his neurotic striving for assistance and security merely took the accident as a pretext for evading the difficulties and burdens of a working life. This was the case if the psychological consequences of the accident had only been produced purely coincidentally by the accident and could possibly also occur in the same or a similar manner through other trivial causes. That was the state of affairs here. As it had been a case of an accident with only quite trivial consequential injuries, the psychological reactions of the plaintiff were in gross disproportion to this cause and were therefore not comprehensible. The plaintiff's existing personality disorders (as well as his work and marriage situation) would also have led to this reaction through other events unavoidably occurring in everyday life, so that the infliction of harm had formed at most a crystallisation point for a wish neurosis. As no further consequences of the accident were to be expected, the request for a declaration could also not be complied with.

II. These deliberations do not stand up to the arguments of the appeal in law.

1. [Paragraph relating to limitation issue omitted].

2. The appeal in law does not question the assessment of the plaintiff's physical harm by the Court of Appeal. However, it successfully claims that the reasoning by which the Court of Appeal has denied attribution in tort terms of his psychological harm is not in accord with the case law of this Senate. The Court of Appeal is, nevertheless, correct in its legal approach when it says that the defendant must in principle also be responsible for adverse psychological effects which have the effect of extending liability, provided there is sufficient certainty that this consequence would not have occurred without the accident [references omitted].

In the judgment of the Senate of the 30th April 1996 [references omitted], which is of fundamental importance for the attribution of psychological harm, this Senate explained that the attribution of such harm was not defeated by the plaintiff's particular susceptibility as a result of physical or mental anomalies or dispositions. This was because the defendant had no claim to be put in the same position as if he had injured a person who had been hitherto healthy. But the Senate has set out in more detail in this judgment and in the judgment of the 25th February 1997 [references omitted] the cases in which boundaries are set to the attribution in tort law of such harm. The Court of Appeal has failed to recognise the principles developed here. In the case in dispute it confirmed the prerequisites for an exception from liability on the basis of insufficient findings of facts. In this connection the deliberations of the Court of Appeal do not clearly reveal whether it is denying an attribution of liability from the point of view of the triviality of the harm or of a wish neurosis. However, in both cases the reasoning is not able to support the contested judgment.

a) The Court of Appeal emphasises that it is a question of an accident with quite insignificant consequential injuries and the psychological reaction of the plaintiff to this is in gross disproportion to the cause and not comprehensible. It is true that it is considering here a category of cases for which, according to the principles explained in the judgment of the Senate of the 30th April 1996 [references omitted] the attribution of the harm can be excluded can be excluded in tort. These are cases in which the event causing the harm is quite insignificant in the sense of being a triviality.

aa) The appeal in law however correctly contests the assumption that the accident in question is to be regarded as a trivial matter in the sense of those principles. As this limitation of liability is obviously an exception from the attribution in liability law of harm connected to the accident, strict requirements must be made for the assumption that the case is trivial. The deliberations of the Court of Appeal do not reveal that it was conscious of this principle. The findings of fact cannot support the assessment of the event causing the harm as completely insignificant.

It is true that account must be taken in this respect only of the primary injury suffered by the plaintiff in the accident. This cannot however be described as insignificant in the sense of trivial harm. The Court of Appeal proceeds on the basis of bruising of the skull with trauma associated with twisting of the cervical vertebrae. Even if these injuries can be healed organically without consequences, they were not in any case, when they arose, as insignificant as would be necessary for an exceptional case in the sense explained. When deciding if the injuries are so insignificant that they can exceptionally involve the exclusion of liability for harmful psychological consequences, the same principles must apply as those which the Senate has developed for the denial of compensation for non-material harm in accordance with § 847 BGB in relation to trivial injuries. This denial, likewise, only applies in exceptional cases. According to these principles, compensation can be denied in the case of insignificant injuries of body or health without substantial prejudice to lifestyle and without lasting consequences. It must only be a case of passing interference with the body or with mental health, typical in daily life and frequently arising from other reasons than a special case of harm. This, therefore, means interferences, which are quite insignificant not only in their intensity but also in the type of primary injury involved. They will normally not make a lasting impression on the plaintiff because he is already accustomed to being exposed to similar disturbances to his situation because of community life with other human beings [references omitted].

But the established injuries of the plaintiff here obviously go beyond such a model of harm, as is evident from the fact that bruising of the skull with trauma associated with twisting of the cervical vertebrae is not typical of daily life. It is always connected with a special case of harm. Here the injury also unquestionably had as its consequence an incapacity for work on the part of the plaintiff, which lasted several days.

bb) If (contrary to the opinion of the Court of Appeal) one accordingly cannot proceed in the case in dispute on the basis of a completely insignificant occurrence of harm, attribution of liability for harmful psychological consequences is not excluded simply on this account. Therefore the further objection of the appeal in law that the Court of Appeal failed to consider that the defendant had encountered a special predisposition of the plaintiff to harm is immaterial. In this respect it is certainly correct that attribution of harmful psychological consequences can exceptionally be justified if the occurrence causing the harm has encountered a special predisposition to harm on the part of the plaintiff and not merely his general susceptibility to the development of neuroses. This is true even where the harm is trivial in the sense explained, according to the principles in the Senate's judgment of the 30th April 1996. This follows from the fact that psychological harm is in principle equated with physical harm as to which the defendant must likewise accept a special predisposition to harm on the part of the plaintiff.

The allusion to the special predisposition to harm in the literature has been understood to the effect that an attribution of liability is ruled out in cases of insignificance and special predisposition to harm on the part of the plaintiff [reference omitted]. This rests on a misunderstanding of the last-mentioned judgment of the Senate, because according to this such susceptibility can on the contrary exceptionally lead to an attribution of liability. There is of course only room for this additional criterion of special susceptibility to harm if there is some question of excluding liability on account of the triviality of the harm. This is however not the case here.

b) The appeal in law also successfully contests the view of the Court of Appeal that the plaintiff had a wish neurosis and therefore an attribution of liability could not follow. This assessment is not supported by sufficient factual findings, as the appeal in law correctly argues.

aa) The Court of Appeal seeks to rely on the case law of this Senate. According to this, the attribution of harmful psychological consequences is ruled out if the plaintiff has a compensation neurosis or wish neurosis. The plaintiff would thus be using the accident merely as a pretext in his neurotic striving for assistance and security in order to evade the difficulties and burdens of the working life [references omitted]. The denial of compensation for harm in the case of such neuroses is based on the idea that the psychological disorder obtains its character from a conscious or unconscious "wish" idea to safeguard one's life or exploitation of an assumed legal position. It is so prominent that the necessary attributable connection with the accident cannot be affirmed. This is so despite the fact that a direct causal connection between such neuroses and the preceding accident exists.

From this starting point, the appeal in law correctly claims that the necessary finding for the assumption of a wish neurosis, i.e. that neurotic striving for assistance and security played a determining part in the degeneration of the plaintiff's mental health, is lacking. It correctly points out that the expert Dr. P has merely stated in his opinion that in the face of the plaintiff's work situation in 1986 the possibility could not be dismissed that, besides the remaining symptoms which the expert had discussed in detail, psycho-dynamic desires for security and compensation had played a role. That does not suffice for the assumption of a wish neurosis, especially as the Court of Appeal has made no further findings in this direction beyond [referring to] these statements of the expert. The Court of Appeal's view was that because of the plaintiff's personality disorders and his marriage and work situation, he could have had the same adverse reaction to other unavoidable occurrences in everyday life. This could acquire significance in the legal sense of a hypothetical development of the harm or supervening causality only if the relevant findings of the Court of Appeal were free from procedural errors. However, the appeal in law refers to the fact that the work and marriage difficulties of the plaintiff had first resulted from the neurotic disorder induced by the accident and the plaintiff had also stated this to the expert. The Court of Appeal will therefore have to investigate this further.

bb) Moreover, the appeal claims that the Court of Appeal has inferred from the statements of the expert that the infirmities are based on a narcissistic disturbance of the plaintiff's personality. These are to be traced back to so-called near-conscious conversions, so that one should not proceed on the basis of a wish neurosis but on the basis of a conversion neurosis. In this respect also the appeal in law reveals extensive doubt about the judgment under challenge.

In the face of the statements of the expert about the neurotic condition of the plaintiff, the Court of Appeal would have had to examine whether the degeneration of his psychological condition does not rather indicate a conversion neurosis in which a mental conflict is changed into physical disorders [references omitted]. Such a neurosis is likewise based on an adverse effect of the accident, which is unconsciously taken as a pretext to compensate for latent inward conflicts, even if, unlike wish neurosis, not actually in respect of the wish not to have to work any more. Here therefore in principle an attribution of the causal connection takes place [references omitted]. Accordingly, it could be decisive for the assessment of liability whether the neurotic condition of the plaintiff is decisively shaped by "wish" ideas.

The expert in the current case on the one hand proceeded on the basis of an - admittedly near-conscious - conversion with the plaintiff, but on the other hand also addressed his wishes for security and compensation as components in the formation of the neuroses. The Court of Appeal ought not therefore simply to have denied the attribution of this neurotic condition to the event causing the harm, but should have subjected this condition to comprehensive elucidation - perhaps by additional questioning of the expert.

A further elucidation of the matter is, according to the above, necessary. In undertaking this, the Court of Appeal will certainly not be able to ignore the fact that according to recent psychological findings, frequently even in cases in which at first a compensation neurosis has been assumed, the wish for compensatory income has certainly been a symptom, though not the substantial or only decisive pathogenic factor. Even with psychologically abnormal behaviour of this kind, the personality structure of the person affected, as well as the adverse effects or substantial stresses in the personal area which could come to the surface through an accident, played a significant role [references omitted].

The appeal in law claims these complicated psychological interrelations in this case and on the basis of the findings of fact so far they cannot simply be dismissed. In the face of these interrelations it may be asked how, in accordance with the exact understanding of the plaintiff's neurotic disorder which is needed, a susceptibility on the part of the plaintiff to "wish" ideas which has possibly been established operates. Taking these considerations into account, it should follow that the disorders asserted by the plaintiff have their foundation not only in unconscious"wish" ideas but also in a conversion-neurosis-type development. But attribution in tort law can still not be denied from the point of view of either compensation neurosis or wish neurosis.

III. The judgment of the Court of Appeal was therefore to be quashed and the matter referred back to the Court of Appeal for further elucidation, in connection with which the Senate making the decision has made use of the possibility of § 565 I 2 ZPO.

The Court of Appeal at this point on the legal basis described and after the further findings to be made might conclude the defendant to be liable for the harm based on the plaintiff's neurosis. It will then have to be taken into consideration that his special psychological characteristics and within this framework also possible "wish" ideas contributing to the neurotic development can be of importance for the calculation of the harm. This is to be ascertained, as to the sum involved, in accordance with § 287 ZPO within the framework of compensation for pain and suffering as well as in connection with the loss of earnings. In calculating compensation for pain and suffering fairly, according to the constant case law of the Senate [references omitted] a special susceptibility to harm on the part of the plaintiff can be considered; this also applies to his psychological disposition and the risks based on it. In ascertaining the loss of earnings, the judge has to undertake a prognosis of the usual course of events, as they would have developed without the accident, taking all points of view into account which were available at the time of the last oral hearing (§ 252 BGB). In this respect it is not only a question of the assessment of possible supervening causalities but also of the ascertainment of harm as such on the basis of the facts of the case as it would probably have presented itself in the future.

Within this framework, it is important to ascertain whether (and with what probability) comparable harmful effects would have sooner or later occurred because of the original psychological condition of the plaintiff even without the actual accident. One must also take into consideration the risk which existed for the plaintiff's future work situation through possible unconscious "wish" ideas as they - as has been revealed in the neurosis - were built into the plaintiff's psychological make-up. In order to elucidate these risks and to obtain a sufficient factual basis for the assessment of the chances for and limitations to the plaintiff's career path, the judge of fact needs to obtain expert advice. He must therefore discuss the questions relating to this in detail with the expert and seek to clarify them.

On the basis of such findings of the facts of the case serious risks may give rise, with a probability which suffices for the purpose of the application of § 287 ZPO, to fears of a substantial strain on his work options in the long term, even independently of an accident. This is because of plaintiff's the inclination to adverse neurotic effects from the various vicissitudes of life and, in some cases also, an unconscious striving to withdraw himself from the "battle of life". The judge of fact must consider this in the prognosis that has to be undertaken for the loss of earnings. This can be important both for the duration as well as for the level of loss of earnings. Just as with difficulties in prediction because of a business life which shows little structure [references omitted], here also consideration can be given to a percentage deduction from the business receipts to be expected without risks of this kind.

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