BGHZ 20, 137 VI. Civil Senate (VI ZR 352/54) Neuroseschäden -decision = VersR 1956, 305
29 February 1956
Professor B.S. Markesinis
K. Lipstein

The plaintiff, born in 1911, suffered a fractured skull when he was twelve years old. On 2 April 1940, while riding a motor cycle, he collided with a railway belonging to the defendant mining company and suffered an injury to the right side of his forehead coupled with a concussion. By a judgment which has the force of res judicata it was held that the defendant is liable to pay three-quarters of the damage suffered by the plaintiff. Up to 31 December 1944, the defendant made to the plaintiff periodic payments.

The plaintiff contends that as a result of the accident he became permanently unfit for work and demands a monthly payment of DM 300 from 1 January 1951 until he reaches the age of sixty-five. The defendant alleges that all the effects of the accident had long disappeared and, in particular, that the plaintiff’s ability to work is no longer restricted.

The claim was rejected by the District Court of Essen and by the Court of Appeal of Hamm. A second appeal was also unsuccessful for the following


1. . . .

2. . . .

3. . . . the question is whether the Court of Appeal, relying on its own findings and of the observations of the expert, Professor Dr K, rightly rejected the plaintiff’s claim. The appellant denies this and refers to the well-known practice of the Reichsgericht in the matter of accident neurosis. He contends that according to this practice the existence of a causal nexus must be admitted between the accident of 2 April 1940 and the condition of the plaintiff which, while constituting a neurosis inspired by the device to obtain periodical payments, was nevertheless one which paralysed the plaintiff’s working capacity and power of mental resistance.

It is true that contrary to the previous practice of the Reich Insurance Office [reference] the Reichsgericht held in principle that a causal connection exists even if the accident was suffered by a person who, owing to his neurotic and labile condition, could not resist sufficiently purpose-and-desire-inspired fantasies. In particular, the Reichsgericht pointed out repeatedly that it is not possible to limit liability to pay damages to physically ascertainable injuries and to exclude nervous or emotional disturbances caused by the accident on the ground that they are due to a special predisposition of the victim. According to the Reichsgericht, a tortfeasor who has injured a person weakened by bad health cannot expect to be treated as if the victim had been healthy. It made no difference whether the fact of bad health was caused by a physical ailment or by an emotional weakness based on his personal make-up [reference].

This point of view was consistently opposed by the medical profession; the dispute was further seriously complicated by the fact that the two sides relied on different notions of causality. In the face of these attacks and the change in the practice in matters of social insurance the Reichsgericht adhered to its view and pointed out, in particular, that a court must always determine in accordance with legal considerations whether a causal nexus exists. Nevertheless, in special cases the Reichsgericht approved a refusal to grant damages [references] and showed in its decision [reference] a clear tendency to restrict liability in the light of a ‘purely external nexus’ between the accident and the neurotic condition. Further, the Reichsgericht sought to counter an excessively broad liability by relying on § 254 BGB. This Division, in its decision of 8 July 1953 [reference], agreed in principle with the practice of the Reichsgericht and affirmed the possibility that an adequate causal connection can exist between an accident and a ‘psycho-reaction’ initiated by it.

It would be unnecessary to reopen this question if it were evident that the plaintiff consciously practised deception in simulating the existence of complaints . . . However, the observations of the Court of Appeal in connection with the expert evidence appear to permit only the conclusion that the conduct of the plaintiff borders on simulation and conscious aggravation, but yet that it is primarily to be characterized by the fact that the plaintiff, who is emotionally labile, influenced by purpose-and-desire-inspired fantasies had acquired and retained the fixed idea that he suffered from the consequences of an accident and . . . the fluid transition from intentional to automatic effects is characteristic [of this illness]. The exaggerated symptom results finally in a childish psychotic state akin to pseudo-dementia, in which the patient remains caught. It is therefore impossible to reject a claim for damages in reliance on § 254 BGB without further considerations; contributory negligence could only be held to exist if it could be said that a neurotic person is able to control his will in response to the requirements of the situation and to resist effectively his wishful fantasies. Especially those whose neurotic tension makes them take refuge in the fantasy that they are sick and are entitled to claim against the community or against the tortfeasor to have their livelihood guaranteed are unable to exercise this control and to offer this resistance [reference].

This Division reaffirms the principle that a tortfeasor must also pay compensation for any damage resulting from emotional reactions of the victim if the accident constituted the adequate cause. The fact alone that a certain behaviour is interpreted as a psychogene reaction does not necessarily rule out a connection between the occurrence which caused the accident and the condition which inhibits the ability to work and to resist. Much as the courts must familiarize themselves with the new ideas of medical and psychological sciences about the nature and the causes of neurotic conditions of behaviour, it must not be forgotten that the question of causality is a legal question, and from the legal point of view causality is not restricted to the functioning of the body and its organs. The attempt to restrict liability for neurosis on the ground that these are ‘outwardly connected only’ does not supply a test for achieving a correct delimitation. If this should mean that the existing complaint and inhibitions would in all probability have manifested themselves even if the accident had not occurred, the court in the exercise of the power conferred by § 287 of the Code of Civil Procedure to assess the evidence quite independently, in particular the conclusions of the medical experts, can deny the existence of a causal nexus altogether. If, on the other hand, it would appear in favour of the plaintiff that his emotional condition which impedes his integration into working life would not have arisen without the occurrence of the accident, the causal nexus cannot be denied, even if the emotional disposition of the plaintiff was an important contributory factor.

If, therefore, it is useless to attempt to limit liability for neurosis by reference to considerations of causality, it is necessary nevertheless to restrict liability for other reasons. In according a claim for compensation to a victim of a corporeal injury, the law wishes to assist him and to facilitate his speedy recovery. It would be contrary to the purpose of the claim for damages if the fact that another must pay the damages would render integration into social life and obligations more difficult or even impossible. For this reason medical opinion points out regularly that the legal regulation of damages must not result in supporting the flight into illness of neurotics set on obtaining damages by way of pensions and in assisting their ‘infantile regression . . .’ [reference]. If the expert evidence shows that the psychological state of the plaintiff, especially his apathy, is to be explained primarily by his—admittedly unconscious—aim to obtain an advantageous settlement of his livelihood or as a fixation on an imaginary legal position—the accident forming an excuse for avoiding the struggle of daily life—it is equitable not to attribute these consequences to the tortfeasor. For the latter cannot be required to contribute to the perpetuation of a condition which, in the end, is harmful to the physical and mental health of the plaintiff. For this reason claims of neurotics with a fixation on asserting legal rights and damages by way of pensions must be set a limit inspired not by the absence of a causal nexus but by the purpose of compensation owed by equitable considerations. As the First Division of the Federal Supreme Court has pointed out appositely [reference], similar considerations moved legal theory and practice to restrict liability for damages to the adequate consequences of the occurrence which caused the damage, although the Code does not lay down such a restriction. If the principle of liability is not to be extended excessively, as it would if the court were to follow the test of strict causality, liability to pay damages must also be limited correspondingly in the present case. Thus the justified interests of social medicine are also satisfied.

Naturally, only a very detailed and careful assessment of the plaintiff’s personality will make it possible to determine correctly the manner and the causes of his neurotic condition. For this purpose, it will be particularly important to establish the boundary between the emotional disturbance caused by the gravity of the accident, the resulting shock, or the physical medical treatment and that which is inspired, following the ensuing legal position, by fantasies of demands [reference].

4. Even if the Court of Appeal has not considered the decisive legal problems correctly in every respect, its findings suffice to enable it to reject the claim for damages in respect of loss of earning capacity . . . The Court of Appeal was therefore correct in the result in rejecting the claim of the plaintiff for damages in respect of loss of earning capacity.

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