RGZ 169, 117 VIII. Civil Senate
29 April 1942
Professor B. S. Markesinis
F H Lawson and B S Markesinis

On 20 January 1937 the plaintiff (a chimney-sweep) was struck down by a lorry owned by the second defendant and driven by the first; he suffered various injuries. The accident was caused by unlawful driving on the part of the first defendant, who was convicted of an offence under § 335 StGB. The plaintiff claims damages for this accident; he demands RM 6000 for pain and suffering and RM 1725 for loss of earnings until 30 June 1938 and monthly payments of RM 100 from 1 July. The Landgericht allowed the claim in general but fixed the damages for pain and suffering at RM 3000. On appeal by the defendants, the Oberlandesgericht reduced the damages for pain and suffering and the compensation for the period until 30 June 1938 to one-half, the monthly payments for the period from 1 July to 31 December 1938 to RM 50, from 1 January 1939 to 30 June 1940 to RM 17.50, from 1 July to 30 November to RM 10.50, and from 1 December 1940 onwards to RM 7.50.

On the plaintiff’s application for review, the Landgericht’s decision was restored as regards the capital payments claimed; as regards the monthly payments the case was sent back to the Oberlandesgericht for these


The defendants no longer object to the order obliging them to pay compensation for the damage done by the accident; nor is any doubt cast on the first defendant’s conviction. The dispute between the parties is limited to whether the pain and suffering and loss of earning capacity are to be traced to the accident. While the Landgericht recognized this to the full extent, the Oberlandesgericht, on the basis of a fresh expert opinion of University Professor Dr von G, adopted a division of percentages. According to that opinion, the plaintiff suffered from a disease called arthrosis deformans (deforming arthrosis with degeneration of the joints), which is to be traced to a predisposition. But, in addition, down to the end of 1938 there were signs of so-called arthritis which arose from the accident. Moreover, sciatica on the left side, which also occurred down to the end of 1938, was produced by a predisposition but was brought into the open as an illness by the accident. According to the expert’s opinion, the sick state of the plaintiff was traceable in equal shares to his predisposition and the accident. With this predisposition the plaintiff’s illness was suddenly brought into the open by the accident which he suffered; besides, experience shows that those signs appeared in much greater degree, developed more quickly, and resulted as a rule in a more protracted illness than if it had developed only from the predisposition. Accordingly, the expert holds that down to the end of 1938 the illness was due about 50 per cent to the predisposition, the rest to the accident. Afterwards, when the arthritic complaints faded away, he traces the plaintiff’s condition as 75 per cent to his predisposition and only 25 per cent to the accident. According to his opinion even without the accident, which brought it into the open, his illness would conceivably have broken out in the course of 1937 or 1938 from some other cause (by catching a cold or the like). In accordance with this opinion, the Oberlandesgericht awarded to the plaintiff, who had had to employ an assistant because of his illness, only half the damages for pain and suffering, assessed at RM 3000, and half of the expense of employing assistants in 1937 and 1938, and as regards the monthly payments demanded for the following period only 25 per cent of his shortfall, which it assesses at 70 per cent of the payments demanded.

The applicant for review rightly takes objection to this partition of the damage suffered by the plaintiff. The Court of Appeal misunderstands the concept of causal connection, as it has been shaped by the writers and the courts. The court has to answer the question of causal connection not only according to the view of the medical expert but independently by having regard to the relevant legal prerequisites, which may lead to deviations from the medical view (JW 1938 (no. 4), 105; SeuffArch. 95, no. 9). It is recognized that even illnesses that are brought to light by an accident, only because there was a predisposition thereto in the injured person, are treated by the law as consequences of the accident to their full extent; anyone who commits an unlawful act against a person in weak health has no right to be treated as though he had injured a completely healthy person (RGZ 151, 283; 155, 41; SeuffArch. 95, no. 9). The causal connection between the act of the person inflicting the damage and the damage is also not excluded because the particular consequence that followed from the injurious act could have occurred through another event that definitely happened later on (RGZ 141, 365; 144, 80 and 348; similarly Kommentar zum ABGE 4, n 1d to § 1294). For that other event, the occurrence of which without the injurious act of the first defendant the Court of Appeal regards as certain in agreement with the expert opinion (catching cold and the like), would not have deprived the first defendant’s act of its causal responsibility for the damage; instead that act has prevented the second event from being itself the cause of the damage. The accident to the plaintiff, which induced the illness, must, therefore, be looked upon as itself causing the damage that occurred in full even if the consequences could have been produced without the accident by a cold or the like because of the plaintiff’s predisposition—an occurrence which the Court of Appeal took into account without more ado.

The plaintiff’s predisposition is important only in so far as, like advancing old age, in course of time and without the intervention of anything particularly inducing illness, reduces earning capacity and so influences the amount of damage. Only with this limitation is it right for the appellate judge to form the opinion that, where symptoms of illness are brought to light by an accident which triggered them off, the person to blame can be made liable only for the portion of its consequences that can be traced to it but not for those that are brought about by the predisposition. A partition of the consequences of an accident by percentages, as where the injured party shares the blame, is quite impossible in such cases.

In the present case the damage to the plaintiff consists in his no longer being able to undertake the heavier work of chimney-sweeping, in particular climbing up the chimney and therefore being greatly hindered in the exercise of his craft since bent chimneys (Schiefkamine) are common. To carry on with his business he has had to employ an assistant. It is a question of how long the plaintiff would have been able to expect to carry on his business without help but for the accident, and when therefore his predisposition would, even without the accident, have made it impossible for him to attend the cleaning of Schiefkamine. According to the expert’s opinion the arthritic symptoms which made him unable to work are traceable to the accident. These symptoms, which must be judged to be a development of the pre-existing arthrosis—which did not affect his ability to work—lasted until the end of 1938. Since then only the arthrosis remains to which, though its effects were exacerbated by the accident, he is substantially predisposed. Hence it can now be said that the damage sustained by the plaintiff down to 30 June 1938 is traceable to its full extent to the accident and must, therefore, be made good by the defendants. The same applies to the damages the plaintiff claims for pain and suffering. The judgment appealed against, which remains unaltered in so far as it orders payment by the defendants, must therefore be modified as regards the damages for pain and suffering and the amounts claimed for the period down to 30 June 1938. As concerns the monthly payments for the period from 1 July 1938 onwards, further elucidation is needed up to what time the plaintiff might have been expected, without the accident, to be in a position to devote himself without assistance to his occupation, and from what date the natural development of his predisposition to arthrosis would have made it impossible for him to carry on his business without assistance. Up to that moment he must be awarded the monthly payments that he claims, the Court of Appeal having fixed the cost of an assistant at over RM 100 a month; for the subsequent period (irrespective of the amounts already awarded him with final effect) he has no longer a claim.

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