RGZ 155, 37 VI. Civil Senate (VI 395/36)
26 April 1937
Professor Basil Markesinis
F H Lawson and B S Markesinis

[The facts of the case are not entirely clear but what appears to have happened is that the plaintiff suffered from morbid disturbances which impaired her earning capacity. The part of the judgment that is reproduced here discusses a causal point, namely whether her state is due to the defendant’s negligence or should be attributed to her nervous disposition induced by her pregnancy.]

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4. The plaintiff submits the opinion and report of the director of a university women’s clinic and has nominated him as a witness. Although a judge of fact is entrusted with the choice of experts the Court of Appeal in the present case has rejected the request with a reasoning extracted from the factual content of the opinion, but which is legally objectionable. That reasoning is, according to the final sentence of the opinion, that the plaintiff’s present state is conditioned by the pregnancy that produced twins. The expert’s explanation must however be understood in its context. He says: the possibility remains open that the lady, affected mentally and bodily by the accident, was burdened by the beginning of the pregnancy, in which she was carrying twins, to quite an exceptional degree; but one can best account for the plaintiff’s condition by assuming that she had received severe damage by the accident, especially to her nerves. Moreover, there were also some slight bodily changes. So the opinion says: ‘If the lady with her delicate constitution had not become pregnant, all consequences of the accident would probably have been made good. However, her present state is conditioned by the pregnancy, especially as she was carrying twins.’ It would follow from this that the accident was still one condition of the plaintiff’s present state. The pregnancy would indeed have affected the course of her state of health; but her present state would not have come into existence without the accident. That the causal connection was broken by the pregnancy cannot be said: the cause of her present state can still be adequately linked to the accident.

5. The Court of Appeal further admits that the origin of nervous disturbance which really existed, is to be traced to the accident, that the plaintiff, however, had a nervous predisposition and that it combined with her fantasies to affect the extent of the disturbances. The Court of Appeal is only willing to take all these disturbances into account down to the end of July 1933, in assessing medical expenses relying for that on the opinion of the expert K. Indeed, he too admits that the accident precipitated in the susceptible patient a lively ‘mental reaction’ with various morbid excitable states, but is of the opinion that the accident was not responsible for the plaintiff’s especial mental disposition which was at the root of her nervous disturbance. This view is based on a legal error. If any accident strikes a person in a weakened state of health and the consequences have been so serious because of that state of health that his earning capacity is diminished, the law treats that diminution entirely as a consequence of the accident; in other words: anyone who commits an unlawful act against a person in weakened health has no right to be placed in the same position as if he had injured a person in perfect health.

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