RGZ 105, 264 III. Civil Senate (III 453/22)
13 October 1922
Professor Basil Markesinis
F H Lawson and B M Markesinis

On 2 January 1920, as the plaintiff’s husband was about to alight from a tram, he was shot in the arm above the elbow by a policeman aiming at an escaping criminal. He was taken to hospital, contracted influenza (then prevalent in the hospital), and died on 18 March of a suppuration which developed in the chest in connection with the influenza. The plaintiff claims from the Prussian State under the Act of 1 August 1909 compensation for the loss arising from the death of her husband, caused by the fault of the policeman. The Landgericht granted her claim in part; the Court of Appeal rejected it completely. The plaintiff’s application for review succeeded for these


The Court of Appeal agreed with the Landgericht in finding it proved that the policeman who shot the plaintiff’s husband was guilty of a negligent breach of his official duty. Unlike the Landgericht, however, it denied the causal connection between that shooting and the husband’s death. It regarded the influenza, from which the victim died, as a mere ‘subsequent accidental illness’ and continued: At a time when the influenza epidemic was so widespread throughout Germany, no particular causal significance can be attached to the fact that at that time the influenza was fiercely raging in the hospital and especially in the ward into which the plaintiff’s husband was taken. The risk of infection was the same inside the hospital as it was outside. Moreover, it is generally accepted that in hospitals the better hygienic arrangements and the continuous medical assistance if anything reduce such risks. Further, the applicant’s case was not strengthened by the argument that the weakening of the victim’s system by the shooting affected his resistance to infection or the illness that followed it.

The applicant rightly complains that in this way the Court of Appeal makes too rigorous demands for the acceptance of a causal connection. There is no doubt that between the shooting and the death of the plaintiff’s husband a causal connection in the natural, mechanical sense does exist: the plaintiff’s husband was taken into the hospital because he was shot. In the hospital he was attacked by the outbreak of influenza and succumbed to that illness. That causal connection was not excluded by the mere possibility that he could have contracted influenza elsewhere, and also without the shooting.

Moreover, according to case-law the causal connection—the so-called adequate connection—exists here. The taking of the injured person to the hospital was an unobjectionable (even though not absolutely necessary), appropriate, and normal consequence of the injury. However, once in hospital he was, contrary to the opinion of the Court of Appeal, exposed to the risk of infection by a complaint prevalent to a particularly high degree because he could not escape from the company of the sick, as he might otherwise have done. He had to stay night and day in the ward where the influenza raged. That fact involved an enhancement of the risk of infection, according to human experience, and cannot be outweighed by any hygienic arrangements in the hospital or the care of the doctors and nurses. It must also be accepted that an injury, such as here existed, even if its cure progressed favourably, is in general not without effect on the resistance of the injured person against otherwise injurious influenza and that, therefore, the risk of an infection and its consequences is much greater than if there had been no injury. Accordingly, in agreement with the Landgericht, the shooting must be in law found to have been a contributory cause of the death of the plaintiff’s husband.

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