RGZ 91, 21 III. Civil Senate
05 October 1917
Translated German Cases and Materials under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
Translated by:
Tony Weir
Professor Basil Markesinis

The male plaintiff is a senior assistant on the railways. When he was moved to J, he was provided with accommodation which had previously been used by Dr., the station supervisor. A few months after moving in, his daughter, the female plaintiff, contracted tuberculosis, and had to go on a voyage for her health. The plaintiffs attribute this illness to the fact that the dwelling was infested with tuberculosis bacilli, Dr.'s wife having had pulmonary trouble, and hat the defendant state failed to disinfect the dwelling until five or six days after they moved in. They therefore claim damages for the loss attributable to the disease, not all of which may have manifested itself.

The Landgericht allowed the claims. The Oberlandesgericht rejected the defendant's appeal in respect of the male plaintiff's claim, but allowed it in respect of that of the female plaintiff, whose claim was therefore dismissed. The female plaintiff's appeal was allowed, and the defendant's appeal was dismissed.


On the basis of the evidence, the Court of Appeal concluded that the female plaintiff became ill because the service dwelling in which she lived had been infected with tuberculosis bacilli during the illness of Mrs. Dr., but it held that the only person to whom the defendant was liable was the male plaintiff: he had a claim, based on an analogous application of paras 618, 278 BGB, for the damage he had suffered through his daughter's illness. The court said that the delay in disinfecting the house was due to the fault of Dr. D, the railway doctor appointed by the defendant who attended to Mrs. Dr. It was the duty of Dr. D to inform the railway authorities of all cases of tuberculosis which came to his notice in his capacity as railway doctor, and if he had performed this duty, the house would have been disinfected at the right time. But the Court of Appeal disallowed the female plaintiff's claim for damages on the ground that she had no contractual or similar relationship with the defendant, and that her claim in tort failed because the defendant, having adduced exculpatory proof under para. 831 BGB, was not liable for Dr. D.

So far as the male plaintiff's rights are concerned, the Court of Appeal was correct in the result but wrong in the reasons, and so far as the female plaintiff's rights are concerned, it was wrong in both regards.

Since the male plaintiff is an official, the solution must be looked for in public law; and since there are no relevant texts, it must depend on the principles which emerge from the nature of the case in the light of the legal ideas which control decisions in analogous relationships subject to private law. It is established by the Reichsgericht that the state and other bodies of public law owe their officials a duty of care such as is implied into the contract of employment by para. 618 BGB. Thus it has been held that under the Prussian Law on Conditions of Service of Teachers in Public Schools of 3 March 1897, local authorities are bound to ensure that the accommodations they provide for teachers are safe and properly maintained, and that they are liable for any injury or illness caused to the teacher by culpable breach of this duty (RGZ 71, 243). This duty of care is closely related to the fact that the accommodation is provided so as to enable the occupant to perform his service obligations or to perform them more easily. Being required to use the service dwelling for the performance of his duties, the official can expect the local authority to protect him adequately against defects in the dwelling which imperil his health. This leads to the conclusion that in respect of official accommodation the state owes the same duty of protection to the dependants whom the official is entitled to lodge in the dwelling as to the official himself. For if the official is bound to use the accommodation provided, so, too, are they, in the interests of maintaining the family community.

So far as the official himself is concerned, the protective duty owed to him means that he can hold the state responsible for its breach, not only when his own health suffers but also when he suffers loss through injury to the health of a dependant. Just as the official's entitlement to compensation when his own health is affected is based on the application of para. 618 BGB by analogy so, when a dependant's health is affected, private law powerfully suggests that the dependant has a claim for damages as well as the official himself. If a landlord is responsible for unhealthy conditions on the leased premises and a member of the tenant's family suffers thereby, the tenant can sue the landlord under para. 538 BGB for the consequent harm he may suffer (RGZ 77, 99, 101). But in addition the dependant himself can normally sue the landlord for his own harm (though not for his pain and suffering). Unless very peculiar circumstances indicate a different conclusion, the tenant of a family dwelling who concludes a lease must be taken, as the landlord must know, to intend to obtain the maximum protection for the members of his household and to acquire for them the same rights in relation to the safety of the premises as he himself enjoys against the landlord (para. 328 BGB). If the landlord's contractual duties are not extended in this manner, injured dependants would be restricted to claiming in tort, and would not have the benefit afforded to the tenant by paras 278, 538 BGB, that the landlord is strictly liable for any defects in the premises existing at the time of the contract. To give such different rights to the tenant and to his dependants is offensive to proper legal sentiment and false to the tenant's purpose in contracting, for, as the landlord is bound to know, he wants his dependants to be as well placed as himself to sue for damages. so, too, in the contract of employment of private law where the employer provides the employee with a family house so as to facilitate the rendering of the contractual services, the employee must be taken to intend the employer to assume the duty, as regards the condition and maintenance of the living quarters, to protect his dependants from danger to life and limb to the same extent as himself (para. 618 BGB) and to have them acquire rights of their own to this effect. Now if an official who is directed to live in service quarters could not claim from the state protection against dangerous defects in the living premises for those dependants who are entitled to stay in the dwelling, and if his dependants did not have a claim of their own to that effect, there would be an intolerable difference in the treatment of cognate legal relationships in public and in private law. Such differential treatment would be all the more unjustifiable as the official and his dependants do not have the freedom of choice which is open to the tenant or employee and their dependants, but are bound to use the accommodation provided. This extension to the dependants of the state's duty of care is also in line with the development in public law of the state's duty to look after the family of its officials. It is one of the benefits to which officials are entitled, not by way of contractual counter-performance for their services, but as a means of assuring their position in life.

In the case for decision the state has failed to satisfy its duty of care, since it failed to take steps to ensure that its service accommodations were disinfected sufficiently soon after the departure of an occupant in whose family tuberculosis had broken out. The rules certainly provide that in such a case the stationmaster is to undertake the disinfection. A duty is also imposed on railway doctors and supervisors to inform the railway authorities of any cases of tuberculosis in the family of railway employees which come to their knowledge. If this duty is performed, the railway authorities would be in a position to give the stationmaster due notice of any required disinfection. But if no such notification is given, as may easily happen, the regulations make no provision for securing the object in question. The dangers to which officials are exposed in the absence of such notification is such that the defendant should have provided for steps to be taken which would permit the premises to be disinfected at the right time, possibly by making inquiry of the station doctor before assigning accommodation to a new occupant.

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