Facts:

The plaintiff was injured in a traffic accident on 31 October 1988 owing to the negligent driving by the first defendant of a car insured by the second defendant. There can be no doubt that the defendants are liable for all the harm suffered by the plaintiff in consequence, including a broken nose, a fractured elbow, damage to the tendons in his left arm, bruising to the right side of his sternum, and dislocation of the tarso-metatarsal joint in his left foot. The last-mentioned injury involved loss of function, great pain and the need to wear orthopaedic footwear. These problems continue. The main issue between the parties is whether the plaintiff was bound to mitigate the damage by submitting to an operation, namely arthrodesis or fusion of the affected joint, which could improve his condition.

For his pain and suffering the plaintiff claims DM 25,000 (over and above the DM 15,000 already paid before trial) and instalment payments of DM 250 per month; for material harm he claims DM 7,316; he also seeks a declaration that the defendant is liable to him for all material and immaterial harm resulting from the accident except in so far as such claims have vested in third parties such as his social insurer.

The Landgericht ordered the defendant to pay DM 10,000 as further damages for pain and suffering and DM 5,416 for further material harm; it granted the declaration sought except as to expenditure which would have been avoided if the plaintiff had proceeded to the arthrodesis of the joint in his left foot. On appeal the plaintiff obtained an increase of DM 1,800 in damages for his material loss, but failed as to further damages and instalment payments in respect of pain and suffering; the restriction in the declaration was upheld. On the plaintiff's further appeal the judgment of the Oberlandesgericht was vacated in part and the case remanded.

Reasons.

I. According to the court below the fact that in refusing to proceed with the arthrodesis which was medically recommended the plaintiff was in breach of his duty to mitigate his loss must affect the damages for pain and suffering and the declaration of liability; the operation was one which he could be expected to undergo, and it was his duty to proceed with it.

The court accepted the evidence of its appointed experts, Professor H and Dr. G, to the effect that if the plaintiff did what several doctors had recommended and proceeded to the operation, there was a 90% probability of significant betterment in his condition, with diminution of pain and improvement in function. The operation was not unduly risky; arthrodesis might possibly lead to stress on adjoining joints in the foot, but it was unlikely that there would be overstraining of knee and hip or damage to the other leg and the spine. It is true that for six days after the operation there would be considerable pain, but this could be allayed by normal analgesics and reduced to a level regarded as tolerable by the average patient. The plaintiff's objections to the position adopted by the experts were held unpersuasive: most of his quotations regarding the risks of the operation were said to be taken out of context from literature based on research conducted long ago and in view of subsequent improvements in surgical techniques were no longer reliable.

Given this failure to mitigate his damage, the lump sum of DM 10,000 as further damages for pain and suffering was fair and sufficient. To award instalment payments as well would not be right: the plaintiff's injuries were not serious enough, and if they were awarded the proper capital sum granted below would have to be curtailed, which the plaintiff did not want. In view of the plaintiff's failure to undergo the recommended operation, the declaration of the defendant's liability must remain qualified.

Some of the appellant's criticisms of the judgment below are cogent: the reasons given by the court do not support its conclusion that the plaintiff was in breach of his duty to mitigate his loss under § 254(2) BGB.

1. It is true, as the court held, that under certain circumstances a victim of injuries who fails to proceed to an operation which he can be expected to undergo and which would improve his condition may be held to be in breach of his duty to mitigate his loss under § 254(2)(1) BGB and have his damages reduced accordingly. But this can only be the case if the operation is simple and safe, relatively painless and predictably curative or highly beneficial [references, including NJW 1989, 2332 on burden of proof], and an operation is not rendered mandatory just because one or more doctors conclude, after weighing up the benefits and risks, that it is desirable and so advise the victim: it is insufficient that the operation be medically indicated.

2. In holding that the plaintiff was in breach of his duty to mitigate the damage the court did not apply the right test, as one can see by considering the evidence of Prof. H and Dr. G on which the court relied.

a) Neither from the experts' written opinions submitted at first instance nor from their oral explanations before the Landgericht was the court entitled to conclude that the operation was "simple". Arthrodesis involves intervention in the structure of the foot, its bones and joints, and according to the experts any operation on the tarsus must affect the joints close to it. One cannot describe such an operation as "simple".

b) The court below did not give sufficient weight to the fact that the plaintiff cannot be expected to go through with an operation which is likely to cause considerable pain. The experts' statement that "one must expect serious pain for up to six days" after the operation indicates that it involves a degree of pain clearly in excess of that which is the inevitable and normal result of surgical intervention.

This being so, the court below should not have been satisfied with the statement of Dr. G that medication could reduce the pain to a level regarded as tolerable by the average patient. Before the court could properly conclude that the plaintiff should undergo so painful an operation it should have sought further evidence on the nature and intensity of the pain, discovered what was meant by "controllable by normal analgesics" and "tolerable by the average patient", and sought particulars of the nature and possible side-effects of the medicaments in question.

c) That the recommended operation was sufficiently likely to procure a "significant improvement" in the plaintiff's condition is a conclusion which the court could properly reach on the expert evidence, which put at 90% the chance that the plaintiff would be essentially freed from pain. Since absolute guarantees of beneficial results can never be given in medical matters, it lies within the prerogatives of the judge of fact to conclude from such a statement by a specialist that the chance of significant improvement is sufficiently great, even in the present case where experts agree that orthopaedic footwear is still required in 30% of cases and that even if the operation is a success the plaintiff's working capacity will be only 85% (as opposed to 75% without the operation).

But the appellant is right to criticise the court's failure to take due account of the risks, which the experts agreed must be offset against the probable success of the arthrodesis. The reports demonstrate that the operation may result in stress to the neighbouring joints. If non-trivial sequelae can be foreseen, the operation should not be assumed to be risk-free, and here one cannot wholly discount the risk that Sudeck's acute bone atrophy may develop. The court should not have dismissed these worries with the simple observation that stress to the knee and hip joints and damage to the other leg and spine were unlikely. In treating as conclusive the experts' view that the operation was to be recommended the court did not apply the correct test: one certainly cannot hold that an operation is one which the victim must undergo on pain of being held in breach of his duty to mitigate just because the doctors, "after considering the risks, the age of the patient and the prognosis", decide to recommend it.

3. The appellant is also right to object to the fact that as regards the risks inherent in the proposed arthrodesis the court below relied exclusively, without seeking further elucidation, on the reports which the appointed experts laid before the court of first instance. The court should have engaged with the objections raised by the plaintiff as regards such risks, and it was a fault of procedure not to do so.

a) In his appeal to the court below the plaintiff referred to numerous articles from the medical literature which contradicted the points made by the appointed experts and suggested that in several respects he was at particular risk in the operation. For example, he maintained that the risk of infection was particularly high in the case of operations on the foot, and also that it appeared from the literature that arthrodesis of this joint caused a significant number of cases of pseudoarthrosis. He also referred to the fact that he already suffers from arthrosis in his ankle joint which renders any operation on the foot especially delicate. To substantiate these concerns he produced a report an orthopaedic surgeon, one Dr. E.

b) The judge of fact must take seriously any criticisms which a party may make of reports by experts, even those appointed by the court [references], especially when the criticisms are supported by a report from the party's own expert [references]. The court below did not meet these procedural requirements.

c) Although there is no indication that the court itself possessed adequate specialist knowledge, it held that the literature adduced by the plaintiff was based on research done so long ago that improvements in surgical techniques had rendered their findings unreliable. But the question whether or not the views and research adduced by the plaintiff were still authoritative and whether operative techniques had indeed improved so as to counter the risks previously known to exist was one which could be properly answered only by an expert. Since the court's experts Prof. H and Dr G were involved only at first instance and never had sight of the objections of the plaintiff or the statements of his chosen expert, the court was bound, as indeed the parties requested, to seek further expert opinion, possibly by hearing it during the appeal.

4. The court below held that the supposed failure of the plaintiff to mitigate his loss under § 254(2) had a significant effect on his claim for damages for pain and suffering and on his claim for a declaration. Its judgment as to the latter therefore cannot stand, nor can its dismissal of the plaintiff's claim for a further capital sum for pain and suffering.

It also rejected the claim for instalment payments for pain and suffering, but the plaintiff's appeal against this must fail. The court cannot be criticised on review for refusing to grant such instalment payments although the plaintiff continues to suffer impairment: instalment payments should be granted in addition to a lump sum only in the case of the most serious injuries, which the plaintiff feels anew every day [references].

NOTE to RGZ 83, 15 ff. and BGH NJW 1994, 1592 ff.

These decisions deal with a claimant's duty to mitigate his loss. In the context of physical injuries, this may require him to undergo an operation if (a) it is likely to improve his condition and (b) he can properly be expected to submit to it. In refusing to treat as conclusive the recommendations and opinions of medical men as to the benefits and risks involved in such an operation, the Bundesgerichtshof has here tightened the criteria applicable to (b).

For further details in English see B. S. Markesinis, W. Lorenz and G. Dannemann, The German Law of Obligations, vol I, The Law of Contract and Restitution (1998), ch. 8, esp. 661 ff. See, also, vol II, The Law of Tort, 3rd ed. (1998), pp. 914 ff.

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