OLG Stuttgart NJW 1965, 112 (5 U 91/64) = VersR 1965, 296 = JZ 1966, 189
24 November 1964
Professor Basil Markesinis
F H Lawson and B S Markesinis

The defendant drove his car, in which were two workmates, down a street in Heilbronn. Unfit to drive because he had a blood–alcohol proportion of 1.80, he drove into a stationary lorry. In the collision his car caught fire. The plaintiff, who saw the accident from his parents’ petrol station, hurried with an extinguisher and, together with a passer-by, rescued the defendant and his two passengers from the burning car . . . He suffered severe burns and was unable to work for two weeks.

The defendant’s insurer paid compensation for the pecuniary damage, but denied liability to pay for pain and suffering. The Landgericht rejected the claim, but the plaintiff succeeded on appeal for the following


In so far as compensation was awarded to the plaintiff for his material damage, the judgment was not attacked by the defendant. The plaintiff has appealed against the rejection of his claim to be compensated for his pain and suffering.

Contrary to the view of the Landgericht, the plaintiff is also entitled to be paid for his pain and suffering in delict under §§ 823 I, II, and 847 BGB. The finding that the defendant’s driving while unfit to drive did not afford an adequate cause for the plaintiff’s injury cannot be accepted. Admittedly, it is not every conditio sine qua non that constitutes an adequate cause, but only such a one as, generally and in accordance with an objective judgment or experience, is apt to produce such a consequence, or one that in general appreciably enhances the possibility of its occurrence, and therefore adequate causes do not include conditions which according to general human experience are completely irrelevant to its occurrence that according to common opinion they cannot reasonably be taken into account. All the same, the finding cannot be accepted that in the present case the bodily injuries to the plaintiff lay outside what was to be normally and objectively expected as a consequence of the accident. It is of course true that it occurred here only because of a further act, due to the free decision of the plaintiff, namely his intervention in order to rescue the defendant and his passengers. That does not, however, exclude an adequate causal connection between the unlawful act and the consequences. It is not correct that where there is an independent and voluntary intervention by a third party an adequate causal connection can only be recognized to exist if the intervention served to ward off an especial danger to the public and therefore was in performance of a legal or moral obligation. Admittedly in RGZ 29, 121 and 50, 223, where an adequate connection was held to exist between the insufficient securing of a team of horses drawing a vehicle and the injuries to a person who tried to hold them up, attention was directed to the fact that the rescuer had acted in performance of a legal or moral duty. In RGZ 50, 223 attention was also expressly directed to the fact that the injured party had intervened to avoid a threatened accident to persons in the village street, and especially children coming out of school precisely at that moment. Nevertheless the Bundesgerichtshof in NJW 1964, 1363, when holding that an adequate causal connection existed between the conduct of a hit-and-run driver and an accident to a pursuing driver caused by an increase of speed, expressly said that the recurrent allusion in those decisions of the Reichsgericht to the fact that the rescuer’s intervention had been in accord with a legal or moral duty should not be understood to limit liability to such cases, but only to show that in such cases the intervention of the self-sacrificing third person is nearly always automatic, so that the injuries suffered in doing so were undoubtedly adequate consequences of the wrongful act. In the above-mentioned decision, the court drew the conclusion that in less threatening situations it turns on the circumstances whether the situation produced by the wrongdoer is generally to be considered apt to produce rescues by third persons and, if so, in the present form. In the case then decided the court went on to say that after a sufficiently serious traffic accident it is not at all unusual for other drivers to take up the pursuit of a hit-and-run driver independently, and that such traffic camaraderie, even if it may not reach the level of moral duty, is a fact which prevents us from regarding such a pursuit of the escaping driver as the quite improbable and gratuitous intervention of a third party in the causal continuity. Thus, one may start from the position that even where such an intervention is the immediate cause, an adequate connection may be held to exist between the damage and the event that was the initial occurrence, if the conduct of the third person was justifiable. It is therefore irrelevant that in the present case the plaintiff was not expected to assist and, therefore, under no legal duty to help. It can also be left undecided whether there was a moral duty to rescue. In any case there was a justification. Indeed morally his conduct was of a high standard. Although in the circumstances his intervention required considerable courage and intrepidity, one cannot agree with the Landgericht that the possibility of it must have appeared to an observer so remote that it could not reasonably have been taken into account . . .

Moreover, one cannot agree with the judgment under appeal in regarding the injury to the plaintiff as not an imputable consequence of the defendant’s unlawful act . . . It shows a misunderstanding of Larenz’s position in invoking his opinion that even where there is an adequate causal connection between the rescue by the plaintiff and the defendant’s unlawful act, that act must be regarded as a meaningless condition of the rescue and the ensuing injury to the plaintiff, which must no longer be imputable as a consequence of the unlawful act, since although the defendant could in any case be blamed for negligence in relation to the plaintiff’s injuries, the latter bears the full responsibility for his deliberate conduct and therefore a quite predominant share of responsibility falls on him. As the plaintiff in his grounds for appeal aptly says, Larenz was merely upholding the view that even where several persons caused, because they one after another provided conditions for the eventual consequence, one of them can be regarded as its author because he intended the act as his own and thereby reduced the condition that the others provided to the status of an indifferent and legally meaningless condition; side by side therefore with the responsibility of the one who deliberately produced the consequence by his unlawful act, that of another person who merely provided an adequate condition, even though he acted negligently, appears meaningless, so that the consequence cannot be imputed to him as his act. Thus, the Landgericht failed to see that the plaintiff, who, as has already been explained, had a justification for his deliberate intervention, and whose conduct was of a high moral order, acted neither contrary to law nor in blameworthy fashion. Moreover, it failed to see that Larenz, when referring to the above-mentioned decisions of the Reichsgericht in RGZ 164, 125, expressly said that the free but faultless act of a third party did not exclude the imputation to the one who had provided an adequate condition . . . Further, the defendant was also to blame for the damage to the plaintiff through his negligence, because it was foreseeable not only objectively, as has already been said, but subjectively, and here also, just as objective foreseeability is required for an adequate causal connection, infrequent and exceptional consequences are to be taken into account and only quite remote possibilities are to be left out of account. Such a remote possibility, however, as has already been discussed in connection with the intervention of the plaintiff, was, neither objectively nor, from the defendant’s point of view, subjectively, in question.

The defendant, therefore, is liable for the damage suffered by the plaintiff under § 823 I and II BGB. The plaintiff, therefore, is entitled to damages for pain and suffering under § 847 BGB. Admittedly, in the cases decided by the Bundesgerichtshof (NJW 1964, 1363) only compensation for material damage was dealt with and not pain and suffering. There was no question at all of personal injury to the driver pursuing the hit-and-run driver, but only damage to his car. This, however, seems immaterial. What is essential is that the court affirmed liability for a delict.

It follows that where a person suffers personal injuries he can claim damages for pain and suffering. Moreover, the Reichsgericht, in the case already mentioned of the rescue of passengers from a burning vehicle (RGZ 164, 125), expressly awarded damages for pain and suffering to the injured rescuer against the objection of the defendant.

Since the plaintiff’s claim for damages for pain and suffering is based on an unlawful act, there is no need to go more deeply into whether a claim for damages for pain and suffering also lies under the head of negotiorum gestio. [Discussion followed about the amount of damages for pain and suffering.]

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