- BGH NJW 1991, 3275 VI. Civil Senate (VI ZR 2/91) = VersR 1991, 1293
- 17 September 1991
- Professor B.S. Markesinis
- J. Shaw
The plaintiff Land brought a claim for damages by way of the right of subrogation in respect of injuries suffered by K who was injured in a road accident on 11 February 1962. At the time of the accident, K was employed by the Land as a police officer. As a result of the consequences of the accident, K had to take early retirement on 1 February 1964. The defendants in the action were the insurers of R (the other driver), whose responsibility for the accident is not in dispute. As a result of a declaratory binding judgment dated 9 January 1969, the defendants are obliged to compensate the plaintiff inter alia for the costs which the latter will incur up to 30 November 2000 in respect of maintenance payments which it must make to K. The amount of the compensation payable is the difference between what K would have earned as a police sergeant and his earnings as a computer programmer. This is because since July 1964 K has been working as a programmer at the firm of T. Soon afterwards K was earning more in his new job than as a police officer. On 1 March 1982, however, he left the employment of T and joined the firm of S, owned by his brother. The intention was that after about one years experience working for this firm he would take over the management of a newly established subsidiary company of S. Soon after opening, this subsidiary had to cease trading as its economic prospects were poor. K left the employment of S on 30 September 1983. Subsequently, he was employed as a sales representative for a publishing company, and then as an insurance agent. Since 1984 his income has been less than that of a police sergeant. The plaintiff therefore sought to recover in respect of the maintenance payments made between 1984 and 1987, based on the difference between what K actually earned and the earnings of a police sergeant, namely DM 101,219.69.
The LG gave judgment for the plaintiff; the OLG rejected the defendants appeal. The defendants appeal to the BGH was successful.
For the following
I. The judgment of the OLG is based on the assumption that were it not for the accident, K would have remained in the police force and during the period of time in question would have had the earnings of a police sergeant. The claims for loss of earnings brought by the plaintiff by way of the right of subrogation (§ 99 NRWBG) were losses resulting from the accident. An adequate causal link exists between the loss and the accident. Developments such as those which have occurred in a case like the present one, whereby the professional activity initially taken up is subsequently abandoned with the result that the victim has a lower level of earnings, are not wholly improbable. There were therefore no grounds for the defendants to be exonerated from the duty to make good the damage resulting from Ks loss of earnings according to the principles which have been developed by the case law on the protective scope of the norm and on the breaking of the chain of causation.
II. The judgment of the OLG is incorrect in law. The defendants appeal must succeed and the claim must be rejected.
1. The OLG is correct to affirm that the pre-requisites are satisfied which would normally suffice for the defendants to be liable, such that they would be responsible for the loss of earnings in accordance with the provisions of § 823 I and § 842 BGB read in conjunction with § 3 of the Act on Compulsory Insurance (PflVG). Thus it is not in dispute that the defendants are bound to make good in full the loss of earnings suffered by K as a result of the accident. In contrast to the view put forward at the oral hearing on behalf of the applicants, it must also be assumed that Ks accident is a scientific and factual cause of the loss of earnings for which the claim has been brought. For the OLG has establishedand its underlying procedure has not been called into question by this appealthat this loss would not have occurred but for the road accident. The judgment of the OLG is also correct in holding that there is an adequate causal link between this loss and the accident. It is not wholly improbable (to use the general definition [references omitted]) that a person injured in an accident who can no longer exercise his earlier profession because of the injuries he has suffered and must therefore earn his living in a different way, may also give up this professional activity, even if it is better paid, in order to seek greater job satisfaction elsewhere or in order to earn more, but that the result of the further change in job may be that his earnings fall behind what he was earning previously. Such a chain of events lies within the sphere of what experience has indicated can be expected to occur.
2. These general preconditions for liability will not, as this court has repeatedly stated, suffice in every case as the basis for the tortfeasors duty to make good a particular consequence of the accident. Even though the loss may have been adequately caused by the accident, there may not, in exceptional cases, be the necessary internal connection between the infringement of the legally protected interest and the resulting loss as defined by § 823 I BGB for which the injured victim claims compensation required to generate a duty to compensate on the part of the defendants. If, as appears from the evaluation so far made of the facts, there is no more than a purely external, so to speak coincidental connection between the conduct which caused the injury and the consequential loss for which recovery is sought, then there is no relevant justification for attributing responsibility for this consequence of the original accident to the tortfeasor [references omitted]. Such is the case here.
(a) The necessary connection, such as is required for there to be a duty to compensate on the part of the defendants, with the range of risks to which the defendants, through their tortious conduct, subjected the victim, may be missing, in particular where the victim himself decides to take a certain course of action and thus himself has been the true cause of the consequential loss for which he now seeks recovery. In such a set of circumstances, an evaluatory assessment can lead to the conclusion that the loss thereby caused belongs exclusively to the normal risks of life of the victim himself. Thus it is recognised that the causal connection with the original tortious act is broken where conduct of the victim which causes the loss is wholly unusual or inappropriate [references omitted]. The same may apply where a decision of the victim which brings about the loss is so far removed from the risk created by the tortfeasor and is embedded within the victims own sphere of risk such that the tortfeasor cannot legitimately be made liable for this consequence. It was with this reasoning and in the same circumstances as those at issue here, in which the victim of the accident changed job and thus suffered loss, that this court decided that further consequential loss fell outside the sphere of risk for which the defendant was responsible, provided that the change of professional activities was such that the accident was no more than the external trigger for this development (NJW-RR 1991, 854).
Such an exception will only apply subject to strict conditions. The principle of full compensation which applies to the law of damages requires that such an evaluation can only be undertaken in exceptional cases. It is necessary that there is a clear break which is externally visible, which shows that the injured person has accepted as his own the risks resulting from his decision to pursue a different professional goal [reference omitted].
If in a particular case there are unequivocal factors which indicate that with his decision to change careers the victim separated his future professional activities from the accident, then the principle of full compensation does not require the victim to be exonerated from the negative consequences of his career choice or the tortfeasor to take the burden of those consequences which, on an evaluatory assessment, have nothing more to do with the injury which was suffered or with the career change which this brought about, simply because the victims career took a different path as a consequence of the accident and there is thus a causal connection with the loss. Where there is such a change of career, the victimwho may benefit from increased promotion and earning opportunities without being asked to account for these [references omitted]acts at his own risk. He is not protected by the liability of the tortfeasor against the effects of all the incorrect vocational decisions he may make or against all the misfortunes which may occur from the moment of the accident to the time when he ceases work.
(b) In the case in question, K took up a post as a programmer in Firm T after the accident; he worked there for nearly 18 years. Soon afterwards, he earned more than in his previous job as a police sergeant. It is not claimed, nor is it the case, that K did not feel wholly valued in his new job or that he did not have the same social standing as in his previous job [references omitted]. Ks decision to leave Firm T in 1982 and to switch to his brothers Firm S was not for instance based on any continuing effects upon his health of the road accident which occurred long before, but was simply based on Ks wish to take up a new job which promised success and higher remuneration. These circumstances, taken as a whole and evaluated as this court is entitled to do on the basis of the findings of fact of the first instance court, make it apparent that there is a break in the chain of causation between the road accident on 11 February 1962 and the professional failures of the plaintiff after 1982. By taking a decision, which was no longer influenced by the accident, to leave his established job of 18 years with Firm T and to switch to his brothers firm, K decided to take his subsequent professional fate into his own hands, as would have been the case if any employee of Firm T, regardless of whether he or she had suffered a road accident, had decided to change jobs. So long as he was earning the level of salary paid by Firm T, K was suffering no loss of earnings as a consequence of the accident. There is evidence that this would not have changed up to the end of working life. If, in these circumstances, K were to feel the need to change jobs, then he was free to do so; however, there is no question of him making the person who caused an accident which happened 20 years earlier responsible for his professional failures which were caused by a decision by K which was brought about neither by the injuries caused in the accident, nor by any alleged lesser value of his work for Firm T. The road accident and Ks subsequent employment at Firm T which was brought about by the accident were only relevant to his renewed decision to change jobs and work for Firm S to the extent that were it not for the accident he would have shied away from the possibility of working in his brothers business, given his permanent position in the public service as a police sergeant. This circumstance alone does not change the position as regards the factors set out above which indicate clearly that K was acting on his own responsibility, and does not undermine the argument that the chain of causation is broken between the road accident and the loss of earnings which is claimed. It follows that the disadvantageous consequences can no longer, with regard to the accident, be construed as damage arising therefrom.
(c) Contrary to the view put forward by the respondent in its argument, it is not necessary to reach a different conclusion on the grounds that his professional situation with Firm T might have been a contributing factor in Ks decision to move to his brothers business and that consequently it was necessary to establish the facts further in this respect. It is not necessary to decide whether the tortfeasor will always be liable in respect of the loss of earnings suffered by the victim which might occur considerably later after his forced change of job as a result of a reorganisation by his new employer. For the decision of the OLG does not leave it open as to whether the reason for Ks move to his brothers business was attributable to his professional situation with Firm T, but rather it stated in the grounds for decisionand these were not challenged in the appealthat K gave up his job as a programmer in order to take up a senior post in another business. In addition, as was apparent from the facts presented in the OLG judgment, the plaintiff, himself, did not even argue that K would no longer have been able to work for Firm T when it moved its data processing department, in which he worked, to the town of W; on the contrary, the plaintiff argued that the reason for Ks move to his brothers business was that K did not want to move to W. Whether this would suffice as a ground for imposing the burden of the consequential loss of earnings which would have resulted from Ks refusal and the subsequent change of job upon the person who caused the accident can be left open in this context since, as was said, the OLG found that the reason for Ks change was his decision to take up a senior post in his brothers business. The professional misfortunes which resulted from this decision are, as stated here, no longer attributable to the acts of the tortfeasor.
Notes to Cases 76-94
1. The twenty cases reproduced above deal with various aspects of causation: cases 89, BGHZ 20, 137, and 80, BGHZ 3, 261, contain oft-quoted definitions of the adequate cause theory; cases 85, BGHZ 27, 137, and 86, BGHZ 58, 162, provide the leading examples of the operation of the scope of the rule theory of causation; case 78, RGZ 155, 37, deals with the problem of predispositions, while no. 89 discusses the thorny question of accident neurosis; case 87, OLG Stuttgart NJW 1965, 112, looks at the issues associated with rescues; case 92, RGZ 83, 15, deals with the plaintiffs duty to mitigate his loss and so on. All these points have been developed in section A of Chapter 2, 5, above; and excellent collections of American materials can be found in: Franklin and Rabin, 293-381; Epstein, 363-459; Henderson and Pearson, 127-174; 521-575; Posner, 543; Prosser, Wade, and Schwartz, 252-355 etc. Dobbs, The Law of Torts, 405-492, nowadays provides one of the clearest treatise accounts. All of these also give abundant references to the rich periodical literature, so these notes can be kept to a minimum.
2. The literature may be extensive and some of the problems intellectually fascinating, but causation must be approached with the following warning in mind:
The problem [of causation] is a difficult one, but the length of the treatment in this casebook and the amount of time allocated it in most courses may perhaps give an exaggerated impression of its importance. In the great majority of negligence cases, the problem does not arise at all; it comes up only in the fraction of negligence actions that involve unusual fact situations. (Prosser, Wade, and Schwartz, 349.)
This down-to-earth remark applies equally to German and American law.
Prosser et al. also state in their case-book that The principle task of the court is to do justice as between these parties in their present situation. For this purpose, a weighing evaluative process is required, rather than a clear-cut rule of law. (pp. 349-50) This is not so different from the point the German Federal Court made in its famous judgment of 23 October 1951, BGHZ 3, 261, (case 80) where, after reviewing the many variants of the adequate cause theory, it concluded that the answer must, in the end, be found in common sense and a reasonable choice between competing policy factors. Once again Americans and Germans are thus not so far apart. For in both these countries academics have not managed to conceal their fascination with the subject which, in the end, they are forced to admit is of relatively small practical value and should be approached in a common-sense way (Hart and Honoré, ch. 2).
3. The differences between adequate causation and foreseeability have been discussed above (Ch. 2, section 2.A 5(b)). But foreseeability, to quote Prosser et al again (ibid. 350), is an accordion concept, depending upon the detail and precision with which foresight is required. In modern times it has thus been stretched (over-stretched in some cases, see, for example, Meah v. McCreamer  1 All ER 367), so that it is legitimate to enquire whether it has lost much of its usefulness as a device controlling liability. Was not that one of the reasons why the Re Polemis rule  3 KB 560 was abandoned in England (but not the USA; see Friendly J.s remarks in Petitions of Kinsman Transit Company 338 F. 2d 708 (1964)) by the Wagon Mound (No. 1)  AC 388? In Germany, von Caemmerer has reached the same conclusion about the effectiveness of the adequate cause theory (Das Problem des Kausalzusammenhangs Gesammelte Schriften I, 395, 402, 408); and the German Federal Court is not tuning down its doubts about the concept of adequacy in general (for example see BGHZ 79, 259). Not unnaturally, the search for more normative theories of causation can thus be found in both systems, though once again the similarity between the views of Rabel and Green is, to say the least, coincidental but uncanny. Such theories, as we have seen, can help keep liability under control; but they can also lead to irreconcilable decisions: cf., for example, De Haen v. Rockwood Sprinkler Co. 258 NY 350, (1932); Di Caprio v. New York Cent. R.R. Co.,131 NE 746 (N.Y.1921); Kernan v. American Dredging Co., 355 U.S. 426, 78 S. Ct. 394 (1958) and, of course, the classic English case of Gorris v. Scott, LR 9 Exch. 125 (1874). Little wonder that in view of such ambiguities and uncertainties some authors have expressed open scepticism about the utility of the notion of causation (see, for example, Coase, The Problem of Social Cost 3 J. Law and Econ. 1, 2 (1960); Calabresi, The Cost of Accidents 6, n. 8 (1970). But can terms like cheaper cost avoider avoid causal language?
4. In view of this, the selection of cases translated above more than usually reflects personal tastes and predilection. But even here a note of warning must be sounded. The judgments reproduced usually deal with one facet only of the problem selected for inclusion and discussion. For example, take the rescue case reproduced above (case 87, OLG Stuttgart NJW 1965, 112). This obviously invites comparison with Wagner v. International Ry Co. 133 NE 437 (N.Y.1921). The result is the same, since the policy behind the judgments is the same. But the terminology is different (causative language instead of duty of care). The use of the one rather than the other does not really matter, as most American books which discuss the problem say quite categorically. (In any event, terms such as duty, foreseeability, adequate causation in these cases barely conceal policy dictates.) But the difference in literary style cannot be passed unnoticed. Cardozos romantic imagery has justly been immortalized; dry causative language, on the other hand, can only make the law appear even more remote from real people and their problems than most of us perceive it to be. But the equivocation between concepts can be found in both systems; and once grasped, makes their comparison much easier in so far as one does not get too hung-up by concepts and notions.
Giving a rescuer an action is right only under certain circumstances. The German judgment, along with other different systems, hints that the solution will be different if his intervention is rash or the result of pure intermeddling with the affairs of others. Other problems arise. What, for example, if the person rescued negligently puts himself in a position of danger? What if the rescuer injures the rescued person or a third person? What about the rescuers rescuer? In the casuistic Common law, most of these problems have been litigated (see Prosser, Wade and Schwartz, 3313); in German law the answers are usually canvassed in the literature; but in practice the solutions, again, should not be different, since the same policy issues are at work in both systems. The references given in the principal German case confirm this.
5. Foreseeability and rescue have also been considered in a novel context that has arisen, in part, because the law has not kept up with the rapid forward leaps of medical technology. The point can be easily put: should a medical practitioner who culpably removes the sole kidney of an injured child be liable for the damage which a close relative (typically mother or father) suffers by donating one of his kidneys? Case 88, BGHZ 101, 215, and Canadian law (Urbanski v. Patel, 84 DLR 3rd 650, 671 (1978)) have said yes to such claimsthe courts in the USA have decided otherwise. (See Sirianni v. Anna 285 NYS 2d 709 (1967); Moore v. Shah, 458 NYS 33 (1982); Ornelas v. Fry, 727 P. 2d 819 (Ariz.1986).) What are the arguments for and against recovery?
First, there is a hint, but no more than that, to suggest that the donors intervention may be unforeseeable and unexpected. This must have been particularly true when cases like Sirianni v. Anna (1967) were decided when organ transplants were still rare. This argument, however, is unlikely to carry much weight today when, as the Canadian Court put it in Urbanski v. Patel, a kidney transplant is an accepted remedy in [cases of] renal failure.
A second argument, considered in Moore v. Shah, was that foreseeability alone is not enough to lead to the discovery of a duty of care and thereby to the imposition of liability. This is certainly true as far as English law is concerned though it is somewhat surprising to see it coming from the pen of American judges. For, as Professor John Fleming has put it, In California [at least] foreseeability has for most purposes become a sufficient test for duty (The American Tort Process (1988), 118). Equally surprising is the fact that American judges, who are in practice quick to usurp the (inactive) legislatures role, are in this context suggesting that if a remedy is needed it should come from the legislator (Sirianni v. Anna at p. 713).
A third objection considered by the Moore court is that the imposition of liability would extend the physicians liability beyond manageable limits since they could not foresee each and every person other than his patient who might conceivably be affected by his negligence. But quite apart from the fact that the floodgates argument has never held out much appeal in instances involving physical injury, the fact is that in these cases one is only concerned with a limited and usually identifiable group of close relatives who, for medical reasons (tissue matching), or from an understandable moral compulsion, are, in practice, the only ones likely to come forward in order to save the injured primary victim. In any event, the floodgates argument seems to be effectively countered by the criteria which the German courts say must be evaluated ad hoc before the rescuers intervention is deemed worthy of support.
The fourth objection is that in the view of the American courts this situation is incompatible with Cardozos phraseology in the Wagner case. There Cardozo had talked of the act of rescue, if only it be not wanton, is born of the occasion; and wanton was in the kidney cases interpreted to mean wilful, later elaborated into wilful, intentional, voluntary. Do you think that is what wanton means? Since every rescue, even one attempted on the spur of the moment, is intentional and voluntary, should not wanton here be taken to imply reckless?
Fifthly, in the USA the rescue doctrine was not applied to the present situation on the grounds that the rescuer/donor had time to reflect on his action. How does the German court counter this point? Which view do you find more convincing?
Finally, the sixth objection against recovery is the presence of consent on the part of the donor/plaintiff. With respect, however, the argument is misleading. For no one is saying that the kidney was removed without consent; if it had been, there would be an action for battery! What one is saying is that the defendants negligence placed the donor in a position in which, morally and socially, he felt compelled to act the way he did. Indeed, wider policy considerations should encourage such donations, not penalize them by not rewarding them. The German court, influenced by such motives, had no doubt that consent could not in this case be used as a defence. Do you agree with its view or do you prefer the American reasoning? How much has policy influenced the outcome of those cases? Which view do you think the English courts should/will adopt?
6. The problem of accident neurosis is represented in this selection by two cases only (no. 89, BGHZ 20, 137, and 90, BGHZ 137, 142) though many have reached the courts. It is best understood if read in conjunction with the cases 1-3 on nervous shock annotated above. The difference here, however, is that the victim, as primary victim, does not need to fulfil any additional criteria (ties of love and affection etc.) before he can recover. The main problem in these cases is to exclude such psychiatric illness as is too remote and ought not give rise to a cause of action. Generally speaking, the tortfeasor has to accept that the victim has a predisposition for the illness; i.e. the harm 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 in the case of 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. At the same time, it is clear that the law has to impose some limits to the extent of liability. German courts have developed two major exceptions to recovery. The first concerns the so-called rent neurosis (Rentenneurose. Rent must here be understood in the sense of periodic payments which is the form that many injury awards take in Germany). In these cases the claimant (whose illness is not in doubt), in his desire for financial security, merely takes the accident as a welcome opportunity to avoid the hardship of having to earn his livelihood in his profession. Awarding compensation in such a case would be counterproductive and would hinder the claimants recovery (see case 89 above, BGHZ 20, 137 and BGHZ 56, 163). The main problem here is of course to prove that that is the case. The second exception concerns cases where the accident concerns a minor incident (Bagatelle). If the psychiatric illness is not due to a clear predisposition of the victim, and there is a clear disproportion between the accident and its consequences, liability will, again, be denied (see BGH NJW 1997, 1640). For a useful summary of the case law see case 90, which also emphasizes that the two exceptions mentioned above must be construed narrowly. This case also shows that the BGH, unlike its common law counterparts, is increasingly taking psychiatric illnesses seriously (see Schiemann JZ 1998, 684). Given the limitations of space we cannot go into more details; but this is also regrettable since the interaction of law and medicine is here, as elsewhere, fascinating. The medical aspects of this problem are discussed by a consultant neurologist in a book which is intelligible even to non-specialists (Trimble, Post Traumatic Neurosis (1981)); and one of the points made there is that attitudes towards this problem are changing. Thus, while during the nineteenth century stress was put on organic material changes, during the greater part of our century the emphasis has shifted to psychological interpretation of the symptoms. More recently, however, there is a certain return towards more organic interpretations as the functioning of the human brain becomes better understood. The notion that in most of these cases plaintiffs are not guilty of malingering may (subject to what has been said in relation to the Rentenneurose), in part, explain the greater willingness to provide compensation. Certainly medical science has shown that illness following injury seems susceptible to manipulation by compensation factors. Clearly there is here more room for interdisciplinary work (incidentally, the BGH justified its more victim-friendly attitude in BGH NJW 1998, 810 by referring to new medical research). By the way, the same interest in the increased ability of medical science to explain and understand these complaints is also evidenced in the (English) Law Commissions learned report entitled Liability for Psychiatric Illness (Consultation Paper No 137, 1995). But this new learning has still failed to budge English judges from their fears of endless litigation. The result? English law on the subject is in a hopeless tangle from which, some judges seem to think, only the legislator can save it.
7. Case 81, BGHZ 132, 164, deals with a different question: under what conditions can liability be imposed if the victim brings the injury upon himself. The aspect of the question we wish to consider has arisen in cases where law enforcement officers are injured while pursuing the perpetrators of crime. Two points must be considered.
In such cases, the first obstacle is to establish in what circumstances does the tortfeasor owe a duty of care to his pursuer. For, as the BGH stated, a suspect is not under no legal obligation to hand himself over to the authorities. The German court suggested that it was not the flight, as such, that created liability but the manner in which it was executed. We have already noted in the context of the nervous shock cases (see notes to cases 1-3, above) that although there is no duty of care to abstain from injuring oneself, the situation might be different where self-harming also causes injuries to another person. Conversely the suspect - assuming the position of the BGH is correct - has no duty to help the police to arrest him. But if he seeks to escape the pursuit, he is under an obligation to do this in a manner that will not endanger the health of the pursuing officers. Since, as is clear to him, it is their duty to enforce the law and to arrest him, the suspect owes them a duty of care not to provoke a dangerous pursuit. The problem has been identified above (Ch. 2, section 2.A 5(a)) as one of causation while the BGH prefers the language of objective attribution, objektive Zurechnung. (The older case law had the assumption was that the chain of causation was interrupted, see Emmerich JuS 1996, 846) This may be more a matter of terminology than substance. Nonetheless, it is remarkable to note how much effort the court expended in trying to define the circumstances under which a duty of care would arise. Equally interesting is the fact that it did not openly analyse the problem as one of causation even though the theory of the protective scope of the rule can be framed as a problem of legal cause. This indicates yet again how interchangeable the different approaches really are (scope of the duty owed, duty of care, and causation). One obvious advantage of approaching the case on the basis of § 254 BGB (mitigation) is that it allows a partial reduction of damages (as was actually held in the present case). A causative analysis on the other hand could entail an all or nothing result. (See for a similar approach in English cases, Hart and Honoré Causation in the Law (2nd edn. 1985) p. 141.
The second issue raised by the case is how to weigh the interests involved. It is not necessary to repeat the reasoning of the court, which repays careful reading. Suffice it to say that the BGH requires that the polices decision to pursue is not wholly unreasonable (which is determined by a comprehensive balancing of interests). Additionally, it must be shown that the loss was caused because of the increased danger situation which inherent in the pursuit and was not part of the general risks of life. (allgemeine Lebensrisiko). (For details see Teichmanns note in JZ 1996, 1181.) The notions are interesting; indeed, they make much sense. But, as always, the devil lies in the detail.
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