BGHZ 55, 176 VIII. Civil Senate (VIII ZR 61/69) Jungbullen-decision
11 January 1971
Translated by:
Mr Raymond Youngs
Professor B.S. Markesinis

On 7 June 1964, the plaintiffs, husband and wife, were severely injured in a collision between their motor car and that of the defendant, who was solely to blame. At the time of the accident, the plaintiff wife was six months pregnant. On 16 September 1964 she gave birth to a child, the third plaintiff, who was a spastic because he suffered from brain damage. The parties disputed as to whether this was caused by the injury to the mother. Both instances below allowed the claim. A second appeal by the defendant was unsuccessful for the following


A. . . .

B. The action by the third plaintiff for a declaration

I. The Court of Appeal has assumed without discussion that the plaintiff could demand damages under § 823 I BGB for injury to his health, although he was not yet born at the time when the defendants committed the tort. Clearly the Court of Appeal relied on the decision of the Bundesgericht of 20 December 1952 [reference] which had no hesitation in applying § 823 I BGB, even if a child which was born with a defect was not even conceived when the tort was committed against the mother.

This approach, which was adopted by the judgment appealed against, must be applied. In the present case, too, the plaintiff must be treated as ‘another person’ in the meaning of § 823 BGB, whose health was injured by the defendant; for the purpose of this provision establishing liability the plaintiff is a ‘human being’ even if he was injured before birth en ventre sa mère [references]. Similarly § 25 of the Nuclear Energy Act of 23 December 1959 refers to injury to a human being, but includes in this term also those who have suffered injuries to their health before birth and even before their conception [references]. The fact that the plaintiff suffered the injury to her health before birth cannot be determining if these preceding processes provided by nature and by creation are considered in their own setting.

The objections against applying § 823 BGB, which are mainly conceptual, must and can be overcome; true, in cases of this kind it does not assist that the liability of a tortfeasor does not presuppose the existence at the time of his action of the object, the violation of which leads to liability (distance tort). In the cases now under consideration the (illegal) act injures the foetus directly; the only ‘distance’ consists in that between this injury and the moment in which the injuries to health become apparent when the child is born, that is to say the moment in which the object of the liability first reaches its existence. In particular, difficulties arise in applying § 823 BGB if it is considered that at the time of the injury the foetus was not yet a human being and cannot therefore be regarded as ‘another person’ [references].

Nevertheless, no objections exist against applying § 823 BGB, a view shared in the literature, albeit for a number of different reasons [references].

1. The provision of § 823 BGB protects the right of a human being, once born, to the integrity of his body and his health; nobody is allowed to injure the health of a human being. It is unnecessary in the present case to consider the question as to whether in the case of an injury to the foetus the protected interest is the health and corporeal integrity of a person alive (later on) or whether a right of a foetus to integrity and health is to be recognized [references]. In the present case the issue is not one of compensation for damage which the foetus has suffered—if it were to be granted limited legal personality (see § 844 II BGB, second sentence)—but the injury to health which the child has suffered, being born alive but sick [reference]. In these circumstances it is only necessary to take into account in favour of the tortfeasor that this claim for damages does not arise, if no live birth occurs [references], or if the injury to the foetus has disappeared by the time of the child’s birth and has therefore not affected the health of the newly born. It is also clear that the claim for damages only comes into being with the birth, irrespective of the conceptual ground on which it is based (see reference). Apart from this, the fact that the injury was suffered by the foetus before a human being came into being and before legal personality was acquired does not preclude the application of § 823 BGB. This cannot be doubted, not only if, for instance, the tortfeasor injures a pregnant woman intentionally or if the injury is caused by a professional mistake of a gynaecologist who examines her or of the midwife or the doctor etc., in the course of the birth, but also before its conception. The foetus is destined to enter life as a human being; it is identical with the child born subsequently, a fact of nature which the law concerning liability must take into account. Therefore an injury to the foetus becomes an injury to the health of a human being, at least upon birth, for which the tortfeasor must pay damages under § 823 BGB.

2. Nor do any doubts against the applications of § 823 BGB arise in the light of the legal system as a whole. In this connection it need not be considered that by the prohibition of abortion, i.e. of its destruction, criminal law provides a certain protection for the foetus. The fact that a mere injury to the foetus, which is in issue here, is not punishable does not exclude the view that a human being is protected in private law at least as far as a claim for damages is concerned, if an injury to his health is derived from preceding damage inflicted during his embryonic state. Even at that stage of his development he is exposed to dangers and to biological damage which result later on in injuries to his health in the meaning of § 823 BGB; he therefore requires protection. Private law protects developing human beings by numerous special provisions. It accords therefore with its spirit if for the purposes of the law relating to liability in tort developing life is also capable of being injured, with the result that the human being who is born subsequently has the same rights to damages as the person who is injured only at the moment after he has seen the light of day.

II. . . .

1 . . .

2 (a) . . .

(aa) . . . If the Court of Appeal should have assumed that the damage alleged by the child was only a ‘reflected damage’ resulting from the injuries which the defendant has inflicted upon the mother, it would have been wrong in law. The claim for damages in issue in this case is a claim of the child and not part of the mother’s claim for damages [references]. As regards legal liability, two injured parties stand side by side, with the result that each claim must be examined separately [references]. . . .

(b) . . .

III. On the basis that the paralysis of the plaintiff child was caused by the accident, the consequences must also be attributed to the defendant.
It cannot be doubted that these consequences are connected by a link of adequate causation with the accident for which the defendant is to blame. It is impossible equally to fault the view of the Court of Appeal that the defendant’s negligence extended not only to the injuries suffered by the mother but also to those of the embryo and therefore of the child. This does not follow simply because the defendant is to blame for having injured the mother and is therefore liable for all consequential damage suffered by her. However, the child need not prove that the defendant could foresee the possibility of injuring a pregnant woman or an embryo as such. It need not be considered here whether this means that mother and child constitute a ‘unit of life’ [references]. It suffices to render the person liable who inflicted the injury if he should have realized the possibility of a damaging result in general; it need not be foreseeable what form the damage would take in detail and what damage might occur [references].

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