Facts

The plaintiff sues the defendant for breach of his duty of safety. On 17 May 1986, when the plaintiff was barely six years old, he was playing on an undeveloped building-plot of land belonging to the defendant and suffered serious injuries in an accident when a concrete ring on the land, about 1.2 metres broad and weighing 750 kg., fell on him. The land was readily accessible at the time. The plaintiff suffered a double fracture of the pelvis and damage to his urinary tract. The injury to his sphincter has caused incontinence, and there may be further sequelae. The plaintiff claimed DM 50,000 as damages for pain and suffering in addition to a further appropriate sum of at least DM 50,000. In addition, he claims DM 12,209.10 in respect of costs incurred by his parents in visiting him in hospital (travel DM 6,463.10, increased maintenance expenses DM 5,246 and overnight accommodation DM 500) as well as DM 40,800 lost earnings by the father and DM 9,768 as the value of the housework foregone by the mother while making the visits. For private medical treatment as an outpatient, not made good by the Krankenkasse, he claims DM 1,759.56, and a lump sum of DM 500 for incidental expenses. He also claims a declaration that the defendant is liable for any further harm, material or immaterial.

The Landgericht rejected the claim. The plaintiff’s appeal succeeded in part: the Oberlandesgericht granted the declaration, and awarded the plaintiff DM 25,000 as damages for pain and suffering plus a lump sum DM 200 for incidental costs. His further appeal was also successful in part. The case was remanded for reconsideration of the unliquidated claim for damages for pain and suffering as well as the special damages of DM 38,968.66.

Reasons

I. 1. The court below accepted that the defendant was in breach of his duty of safety to the plaintiff (§ 823 I BGB):

The defendant’s land was dangerous to children, since wedges holding the concrete ring could easily be removed and the ring set in motion. It was the dangerous insecurity of the concrete ring which injured the plaintiff. The land was readily accessible, either by a garden gate from the property leased by the plaintiff’s parents, or by a lane. Furthermore, the fence dividing it from the highway was broken at this point, and cars were actually being parked on the land.

2. On the view that the defendant’s fault was not very grave, the court below held that DM 25,000 was an appropriate sum for damages for pain and suffering, notwithstanding that the claim had been certified at first instance as worth DM 100,000.

3. There was no sufficient legal basis for the mother’s claim for the value of the housework she had been prevented from doing, and the court below held that the plaintiff must further specify and prove the other unadmitted items of loss.

II. Some of the appellant’s criticisms of the judgment of the court below are sound.

1. The grounds on which court below concluded that the defendant was liable under § 823 I BGB were quite correct. If the owner of land knows or ought to know that, notwithstanding his prohibitions, children use his land as a playground and may play with dangerous objects there and get injured by them, he must take effective steps and lasting precautions to save them from the consequences of their inexperience and fecklessness [references]. The facts found by the court below justify the conclusion that the defendant, who admitted to knowing that children often played on the land and climbed over the things on it, was in breach of this duty of safety. He should also have realised that the concrete ring which injured the plaintiff was so placed and so insecurely fixed that despite its great weight children could set it in motion, as occurred, and be exposed to great danger, and it should have been obvious that notwithstanding the danger, children would play with so inviting an object.

2. As to the material loss claimed, the court below was correct to reject the claim in respect of the father’s loss of earnings and the value of the housework the mother was unable to do. However, the total rejection of the claims for travel costs, increased maintenance, and overnight accommodation was not justified.

(a) The law of tort is based on the principle that a claim may be brought only by the person whose interests are protected by the rule infringed, and then only to the extent that he personally suffers harm. Only in the exceptional cases provided by §§ 844, 845 BGB may there be compensation for economic losses resulting ‘indirectly’ from the invasion of the interests of others. The Bundesgerichtshof has, however, regularly made an exception for the cost of visits by close relatives to the sickbed of the injured party and, because of their intimate connection with the cost of the victim’s recovery, treated them as part of the injury to his health (most recently BGHZ 106, 28 [30] = NJW 1989, 706; NJW 1990, 1037 = VersR 1989, 1308).

(b) We adhere to the principle of these decisions, especially as it has long become established in practice. It remains the case, however, apart from the exceptional cases where a third party has a statutory right to sue (§§ 844, 845 BGB), that the victim’s claim for damages in tort basically covers only compensation for harm suffered by him personally, so claims for expenditure by a visitor depend essentially on who the visitor is. The mere fact that a third party is affected economically is not enough. Clearly no claim lies in respect of visits by persons not in the near family who attend out of a sense of social or similar duty. The rule of tort is not intended to compensate for such expenditures. But even as regards the expenses of those within the class of ‘near family’ there are limitations. It must always be borne in mind that such expenses, which do not cost the injured victim himself anything, are only exceptionally and on special factual grounds chargeable to the person causing the injury, for otherwise the door would be opened, contra legem, for the compensation of mere economic harm suffered by persons only ‘indirectly’ affected by the tort.

Previous decisions have therefore always restricted compensation to claims by the ‘nearest family’ in respect of visits to a patient actually hospitalised, for only such visits can properly be regarded as both necessary for the recovery of the victim and also intimately connected with the cost of his cure, and so distinguished from expenses incurred either in law or in fact by those ‘indirectly’ affected as a result of the injury to the victim, which are not compensable under the law of tort. Indeed, the only visiting costs incurred by close relatives which can be compensated consistently with the Code are those which are medically necessary for the recovery of the patient in his existing condition, and only those which are unavoidably incurred. Where there is no such medical necessity, hospital visits even by close relatives cannot be compensated, however desirable as regards the psychic or physical condition of the patient, and the same is true of expenses which might have been avoided. Here the general rule laid down in §§ 249 ff. BGB is not the sole consideration; the limits must be more tightly drawn because the law of tort is in principle restricted to the ‘direct’ victim. Previous decisions of this Senate which go any further than this will no longer be followed.

(c) The detailed result of this in relation to the holdings below which are criticised by the appellant is as follows:

(aa) Travel costs form an expense necessarily involved in hospital visits, provided the cheapest means of transport is used and other economies observed. The court below regarded such expenses as harm to the plaintiff only to the extent that they had been met by the Krankenkasse, but as the appellant argues, this is inconsistent with § 287 Code of Civil Procedure, as the court did not ask why the Krankenkasse limited its payments or whether its limits were in line with the criteria of tort law as explained. The vouchers tendered by the plaintiff in support of this claim seem an adequate basis for evaluation under § 287 Code of Civil Procedure, at any rate so far as the number of visits is concerned.

(bb) Exceptionally a claim may be made for overnight accommodation in connection with visits, provided it is unavoidable. The documentation of such expenses tendered by the plaintiff is sufficient to permit evaluation under § 287 Code of Civil Procedure.

(cc) The cost of meals taken by close relatives while visiting hospital out of town depends essentially on the individual needs of the visitor. These determine whether in fact the cost of meals was ‘greater’ than those taken at home. In order to respect the non-compensability of the loss incurred by ‘indirect’ victims, compensation here must be limited to the unavoidable increase in the cost of meals. Only such increase is intimately enough connected with expenditures for the cure of the primary victim to be brought within § 823 I BGB. From this point of view the court below must evaluate the harm under § 287 Code of Civil procedure, on further evidence supplied by the parties, if necessary.

(dd) As to the claim for DM 40,000 in respect of the father’s loss of earnings, the following applies: This Senate has repeatedly held that loss of earnings suffered by the visitor is capable of being regarded as part of the cost of cure of the injured party for which the person causing the injury must pay, subject to the general duty to mitigate damage, which requires, inter alia, that a self-employed person change his hours of work within reasonable limits (see NJW 1985, 2757 = VersR 1985, 784 [785]). Recovery for such losses is however limited to those so closely related to the cost of curing the victim that they can be seen as being truly costs of the visit; examples might be the loss by an employee of remuneration or perquisites if he can take time off work only on unpaid leave and cannot make it up later, or loss by a self-employed person directly attributable to the hospital visit and incapable of being made good in any other way. Beyond this, loss of income resulting from the fact that visiting hospital made the work more difficult cannot be treated as part of the victim’s costs of cure to be made good under the law of delict, for this would, contrary to the Code, amount to liability for harm suffered by persons only indirectly affected.

In the present case, according to the plaintiff, the father, in employment as a manager, lost income because the hospital visits hindered him in developing a parallel practice as an independent accountant and tax adviser. Such a loss cannot be treated as part of the loss to the plaintiff which has to be made good. Leaving aside the question whether it was medically necessary for the patient to have the father by his side at the very time the latter needed to devote to his practice, losses such as these which are attributable to the fact that the visits to hospital left less time for the rapid development or extension of his business cannot be regarded as costs of the visit in the sense mentioned. The same would be true of delay in advancement or preferment in office. Such economic losses are harm suffered by third parties which is not compensable by the law of delict.

(ee) Nor can interruption of housework by the mother be taken into account. The appellant refers to the decision of the Senate of 10 October 1989 (VersR 1989, 1247), but in that case the expenditure claimed was in respect of nursing the victim, an increase in his need which was compensable under § 843 BGB. Here the plaintiff claims compensation for the time his mother could not spend on housekeeping because she was visiting him in hospital. In accordance with the principles just laid down for treating lost time at work as one of the costs of the visit, compensation in tort cannot be given when work lost through the visit can be made up before or afterwards. This was obviously possible in this case, since no substitute home help was employed.

( ff ) In rejecting the plaintiff’s claim for damages in respect of the cost of private medical treatment the court below insisted on too stringent a proof of the expenditures and thus misapplied § 287 Code of Civil Procedure. Whether a person who has statutory health insurance may claim the cost of private medical treatment depends on the circumstances of the individual case (VersR 1970, 129; VersR 1989, 54), and the decisive point is whether a reasonable man in the position of the victim would regard such private medical treatment as necessary. The nature of the injury and the victim’s standard of living are especially relevant, but the court below did not consider these points, nor did it investigate the plaintiff’s assertion that doctors had advised him to go to a ‘special clinic’ for private medical treatment.

(gg) The fact that the court below allowed the plaintiff a lump sum in respect of incidental expenses of only DM 200 discloses no errors of law in the plaintiff’s disfavour, and his appeal made no further mention of it.

3. The appellant is correct in arguing that as regards the quantum of damages for pain and suffering the court below misapplied § 287 Code of Civil Procedure.

(a) It is true that the judge of fact has a good deal of discretion in determining damages for pain and suffering, and his award cannot normally be criticised simply as being too high or, as here, too low. But this judicial discretion has its limits: the judge must show that in trying to reach a figure appropriate to injuries of that kind and duration he took all the relevant circumstances into account, and he must respect rules of law, canons of logic and the teachings of experience. The judge must also state the factual basis of his evaluation so that it may be seen that he has kept within these limits (invariable holdings, most recently NJW 1989, 773 = VersR 1988, 943).

(b) The appellant is right to complain of the way the court below dealt with his claim for damages for pain and suffering. This is especially true as regards the declaration of the Landgericht on 21 August 1989 when it gave full reasons for adopting the figure of DM 100,000 as the value of his claim under this head. On the plaintiff’s appeal, the court below agreed that this sum was appropriate, thereby adopting the reasons given, which thus ceased to be the mere assertions of the plaintiff, as the court below later held in the judgment under appeal. While it was not finally bound to this sum, the court should certainly have indicated in the judgment under appeal why it had come to so very different a conclusion on unchanged evidence. If in the absence of different evidence a later evaluation of the damages differs widely from an earlier one, the law of procedure as well as candour to the parties requires the court to indicate at least the critical points of difference. Only so can a court on appeal ascertain whether the court below regarded its earlier judgment as lying outside the discretion proper to the judge of fact or whether both sums lay within it (see NJW 1989, 773 = VersR 1988, 943). Since such considerations are lacking in the judgment of the court below, it must therefore be vacated as inconsistent with § 287 Code of Civil Procedure, without prejudice to the power of the court on remand, if it gives sufficient reasons, again rejecting the claim for unliquidated damages for pain and suffering.

Notes to Case 58

1. This line of cases demonstrates a degree of judicial creativity which Common lawyers do not often ascribe to civilian judges. To understand the problem let us restate the basic stance of German tort law: negligently inflicted pure economic loss is not recovered under § 823 I BGB. Relational economic loss of third parties, consequent upon injuries to one of the interests of another - the direct – victim are also not covered by § 823 I BGB. The BGH recently emphasised the importance of this general rule. (NJW 2001, 971.) The case concerned a claim for economic loss brought by the parents of a young man killed through the defendant’s negligence. Because of his death, the farm run by the victim ceased to operate and this, in turn, caused pecuniary loss to the parents. Given there was no interference with the right of an “established and operating business” since the accident did not involve a direct interference (see Ch. 2 A (e)(iii)), and since this was not the type of loss envisaged by §§ 843 ff. BGB, the suing parents were denied recovery. However, in some cases interfering with a person’s physical integrity may cause economic loss to third parties and it would not be “fair, just and reasonable” to deny this person any recovery. This was recognised by the fathers of the BGB; and they introduced limited exceptions to the above-mentioned general rules found in §§ 843-846 BGB (wrongful death situations: see Ch. 2 Section A 2.a.). The most important is that the tortfeasor is liable to those of the dependants of the deceased victim who were entitled to receive maintenance from him. A different and, in one sense, the reverse situation, is illustrated by case 51. The victim’s injuries prompt close relatives to come to his aid in various ways such as visiting him in hospital, helping him cope with his disabilities and otherwise looking after him. As the present case demonstrates, if the recovery period of the victim is long, the relatives who provide this assistance may suffer considerable losses. However, the fathers of the BGB did not provide for this eventuality as they did for the cases envisaged by §§ 843-844 BGB. Unfortunately these exceptions, being by their very nature exceptions to a given rule, cannot be applied by analogy to a different situation. Nevertheless the BGH has got round this difficulty by pretending that the costs incurred by the relatives can be seen as being part and parcel of the injury to the victim, himself.

2. English courts have experienced similar difficulties in establishing a duty of care in comparable cases. (See Markesinis and Deakin Tort Law (4th ed. 1999) pp. 754 ff.) They also analyse the problem as one of the extent of the duty of care owed to the ‘direct’ victim. It should be noted that in England these cases are usually discussed in relation to the principle of res inter alios acta. (See McGregor on Damages (16th edn. 1997) para. 9-18; Lewis, Deducting Benefits from Damages (1999) para. 1.10) The general rule appears to be that services provided by close family members (especially nursing care) do not diminish the loss of the direct victim (here the loss is analysed as that of the victim: see Liffen v. Watson [1940] 1 KB 556.) More recently, a source of difficulties has arisen in connection with the question whether there is an obligation to account to the third party. Such an obligation (which - not surprisingly - has been found to stem from a trust) proceeds on the footing of a more realistic view and accepts that the victim is in fact recovering a damages in respect of a third party’s (financial) loss. (See Hunt v. Severs [1994] 2 AC 350, which makes recovery dependant on such an obligation, and, earlier, Lord Denning’s approach in Cunningham v. Harrison and Others [1973] QB 942.) This latter aspect does not appear to have surfaced in the German case law, presumably because recovery is limited to losses sustained by close relatives.

3. German courts have allowed recovery of travel expenses, cost of staying at a hotel (and the like) and lost earnings, caused by the visits to the hospital. Even the cost of a babysitter has been held to be recoverable (For references to the rich case law see, Emmerich JuS 1992, 75). The present – restrictive – decision, however, shows that the BGH feels uneasy with the current state of affairs, largely because of the doubtful theoretical basis of such claims. It is thus at pains to stresses the exceptional nature of the recovery. Accordingly, this tends to be limited in the following way. First, costs incurred by close relatives by visiting the victim (travel, overnight accommodation, increased maintenance costs, loss of earnings) can be included as part of the cost of the victim’s treatment and claimed under § 823 I BGB provided such visits are medically necessary and the expense unavoidable. The guiding (legal) principle seems to be that of causation. Secondly, loss of earnings and housework done for the victim is compensatable only if the work could not be done before or after the visit. Finally, further economic losses are not compensatable. Whether these restrictions introduce greater consistency into the rich case law remains open to doubt. Thus, some authors have criticised the decision for being overly restrictive and argued that we have not yet heard the last word on this matter. (See, for instance, Grunsky JuS 1991, 907).

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