BGHZ 107, 359 VI. Civil Senate (VI ZR 241/88) Bluthochdruck -decision = NJW 1989, 2616
06 June 1989
Translated by:
J. Shaw
Professor B.S. Markesinis


The plaintiff, who suffered from high blood pressure, was involved in a road accident around midnight on 28 April 1984 while driving his wife’s car. His car collided with another vehicle driven by M. The liability insurer for this car was the defendant. Soon after the accident had occurred and the police had taken the details of the accident, the plaintiff suffered a stroke. Since then, he has been unable to work and draws disablement benefit. Between the parties it is not disputed that the defendant must compensate the plaintiff for all the damages of the accident. On the basis of these facts, the plaintiff claimed from the defendant compensation for his loss of earnings, a declaration of the defendant’s continuing responsibility for the loss since the claim was brought, and damages for pain and suffering; in particular the plaintiff made the following allegations: the stroke, which occurred as a result of the rupture of a blood vessel and a resulting brain haemorrhage, was caused by the excitement brought on by the conduct of M and his three passengers after the accident and the measures taken by the police officer who was at the place of the accident in order to test whether the plaintiff was driving under the influence of alcohol. After the accident, M and his passengers approached the plaintiff in a threatening manner. One of the passengers ran at him and shouted, incorrectly, that he was driving too fast. Another of the persons accompanying M drove his vehicle to the side of the road, so that he feared that it would no longer be possible for the facts of the accident to be clarified. All four occupants of M’s vehicle falsely alleged to the police that he was under the influence of alcohol; that caused the police officer to breathalyse him, although the results of the test were negative. As a consequence of this test and the subsequent conduct of M and his fellow passengers, the shock which he had suffered as a result of the accident grew more intense. When he later drove on, he experienced symptoms of paralysis which were the symptoms of his stroke.

The plaintiff’s claim was unsuccessful in both lower courts, and his application to the BGH was rejected.

For the following


I. [According to the OLG] . . . the claim as a whole had no legal basis. A direct claim against the defendant on the basis of § 3 Nr.1 PflVG [Pflichtversicherungsgesetz = Act Concerning Compulsory Insurance] failed because the loss claimed by the plaintiff was not suffered as a consequence of the operation of the vehicle insured by the defendant (§ 10 I AKB [Allgemeine Bedingungen für die Kraftverkehrsversicherung = General Conditions for Motor Vehicle Insurance]). Furthermore, M himself was not liable to the plaintiff. There was no liability under §§ 7 and 18 StVG [Strassenverkehrsgesetz = Road Traffic Act] because the invasion of his health alleged by the plaintiff did not occur in the context of the use of the vehicle by M. There was no liability under § 823 I BGB because there was no basis for holding that M was at fault. A claim for compensation based on § 823 II BGB failed because even if there were a breach of a protective law (§§ 164 and 185 et seq. StGB = Criminal Code), a reasonable bystander would not have expected the occurrence of a stroke as a consequence of the damage inflicted upon the plaintiff.

II. The plaintiff’s appeal fails. The judgment of the OLG is correct in its result, even if not in its reasoning (§ 563 ZPO).

The claim has no basis in law. The prerequisite for a claim against the defendant on the basis of § 3 Nr. 1 PflVG is that the plaintiff has claims for compensation in respect of the alleged loss against M or the keeper of the vehicle driven by M (§§ 823 et seq. BGB and §§ 7 and 18 StVG) and that the loss is caused in the context of the operation of the motor vehicle insured by the defendant (§ 1 of the PflVG; § 10 I AKB). That is not, however, the case here.

1. A claim for compensation against M based on tort (§§ 823 et seq. BGB), which is the only way a claim for damages for pain and suffering could be justified (§ 847 BGB), has no basis in law.

(a) Loss of earnings and non-pecuniary loss on the part of the plaintiff should not be recoverable from M under § 823 I BGB simply because M caused damage to the plaintiff’s property as a consequence of the crash caused by his fault and was consequently guilty of an interference in the ownership rights of the plaintiff and because the impairments claimed by the plaintiff could be seen as consequential loss. First, the property damage caused by M to the car driven by the plaintiff was suffered not by the plaintiff, but by his wife as the owner of the vehicle. Furthermore, there is no evidence from the pleadings that the state of excitement which the plaintiff believes led to his stroke was in any way caused by his being upset by the damage to the vehicle [emphasis added].

(b) The plaintiff’s request for damages is furthermore not justified in so far as it is based on an argument that there was an invasion of the plaintiff’s health actionable under § 823 I BGB.

(aa) Following the plaintiff’s arguments, and rejecting the view of the OLG, it must be concluded that M did make a contribution to the injury to the plaintiff’s health in so far as he acted unlawfully and negligently by contravening the priority rules (§ 8 StVO = Strassenverkehrsordnung) and consequently causing the crash. For by causing the accident he led the plaintiff to become upset and thus created one precondition which, in conjunction with the consequent conduct of M and his passengers, and the attendance at the accident by the police, caused the plaintiff to suffer a critical increase in blood pressure in his brain and led to the rupture of the blood vessel and the consequential brain haemorrhage when the plaintiff later drove away from the accident [references omitted]. It is not relevant to his responsibility in tort that M did not cause the impairment of the plaintiff’s health through a physical invasion of his bodily integrity; an invasion of the plaintiff’s health can occur, as here, through a psychological impact upon the victim [references omitted].

Contrary to the view of the OLG, it is equally irrelevant to the tortious responsibility of M that the impairment to the plaintiff’s health may only have occurred because, unbeknown to M, the plaintiff was suffering from high blood pressure. For it is established case law that a person who causes loss must also take responsibility for those consequences of his actions which are the result of the fact that the victim is already suffering from some form of bodily injury or some other weakness in his constitution [references omitted]. A tortfeasor must always reckon with the possibility that a person affected by his breach of the priority rules may be a person suffering from high blood pressure. It is also not wholly unforeseeable that as a consequence of the upset caused by the accident that such a person may suffer impairment to his health. It is not necessary to foresee the precise circumstances in which this might occur or how the risk might result in the occurrence of damage [references omitted].

(bb) The linkage of the invasion of health suffered by the plaintiff and the infringement of the priority rules by M for the purposes of liability is, however, precluded by the fact that this damage in fact only occurred as a result of the conduct of M and his passengers after the accident and the events which occurred when the police attended the scene of the accident. For the traffic rule contained in § 8 StVO breached by M is not intended to provide protection against the possibility that an accident caused by a failure to observe this provision leads to the plaintiff suffering a stroke in the manner alleged by the plaintiff as a consequence of pressures experienced by the victim solely as a result of the upset occurring in the context of the aftermath of the accident.

It is also established case law that in the context of damages claims which are based on § 823 BGB it should be examined whether the event in respect of which compensation is claimed falls within the protective scope of the norm, and thus whether the risks materialised through the event which breached the rule of conduct was intended to protect against [references omitted]. This condition is not satisfied here. For the provision contained in § 8 StVO breached by M is intended, according to the basic principle set out in § 1 II StVO, to protect above all the bodily integrity of other persons; its protective scope extends, however, as is apparent from § 1 I StVO, to cover only the prevention of the risks of accidents and the prevention of injuries to health associated with primary threat to life and health. These can include those injuries which occur in the aftermath of the accident, for example in the context of salvage work or while making the accident report, which themselves constitute the realisation of one of the risks of road traffic at the scene of the accident. It is the view of this court that this argument cannot extend to cover psychological pressures associated with disagreements regarding the clarification of how the accident occurred or regarding the question of fault, such as those which were primarily responsible for the plaintiff’s stroke, leaving aside the impairment of his condition caused by the accident itself. In this case the plaintiff, himself, admitted that the breach of the priority rules by M engendered in him merely a state of general excitement which, in itself, did not represent an invasion of his health [references omitted]. The fact that this state of excitement became more intense as a consequence of the subsequent conduct of M and his passengers before and during the presence of the police, and the fact that this led to the plaintiff suffering a brain haemorrhage leading to a stroke, fall beyond the protective scope of § 8 StVO. It is not the task of this provision of road traffic law to protect the person who had priority on the highway against the psychological and physiological impairment which he might suffer as a consequence of a criminal investigation or criminal proceedings being mounted against him, or against his own need to take action in civil or criminal proceedings to recover his loss. Nor is this provision aimed at providing protection against an invasion of the plaintiff’s health suffered as a consequence of a state of excitement regarding the police attendance at the accident, whether this is caused by measures taken by the police, or by statements made by the tortfeasor or third parties which make it more difficult to clarify the issue of responsibility. Protection against detriment stemming from errors or attempts to manipulate the facts when the circumstances of the accident are being clarified is subject to separate rules; it is not included within the scope of the rule of conduct contained in § 8 StVO which is intended to ensure the safety of traffic on the roads.

Having regard to the assessment which has been made, it must be concluded that as a matter of the ascription of responsibility, the stroke suffered by the plaintiff was linked to the conduct of M and his passengers after the accident. However, even from this perspective the conduct of M cannot give the plaintiff an action for damages under § 823 I BGB. For the fact that, as the plaintiff alleges, M and his fellow passengers might have given an incorrect description of the accident to the police officer charged with making a report after the crash or might have ‘invented’ allegations about the plaintiff having driven too fast or being under the influence of alcohol does not, of itself, render their conduct unlawful. Such an attempt by those using the highway to shift the blame for an accident onto the other side does not in itself violate, in the absence of other circumstances, the standard of conduct which is to be expected of every person who uses the roads but who has no claim for compensation, after an accident. The same applies to the unsubstantiated allegation made by the plaintiff (though only before the OLG) that the passengers in the other vehicle came towards him ‘in a threatening manner’ [references omitted].

Finally, it is not possible to conclude that the conduct of M after the accident was unlawful simply because the OLG, when it was examining the plaintiff’s claims which it ultimately rejected, reached the conclusion under § 823 II BGB that M and his passengers had breached the protective laws contained in §§ 164 and 185 et seq. StGB as a result of their conduct following the accident. Quite apart from the fact that the defendant, as the insurer, could only be liable for the conduct of M and not for that of his fellow passengers (cf. § 10 I d AKB), the findings of the OLG should be viewed as findings of law, not as findings of fact, that is as a presumption of the truth of the plaintiff’s allegations. For the facts as pleaded by the plaintiff reveal no evidence of a breach of the provisions of the criminal law by M.

2. As a result, the OLG was correct to deny, on the basis of § 3 Nr. 1 PflVG, a claim for compensation by the plaintiff leading to the liability of the defendant under §§ 7 I and 18 I StVG. Such a claim, which in accordance with § 11 StVG can in any case only extend to compensation for pecuniary loss, presupposes that the invasion of the plaintiff’s health occurred in the context of the operation of the vehicle driven by M and that the loss claimed by the plaintiff is attributable to the risks associated with the operation of this vehicle. The OLG was wrong to conclude that the first condition was not present; the second requirement is not, however, fulfilled.

(a) Damage occurs ‘in the context of the operation’ of a motor vehicle where the risk which emanates from the vehicle as such has had an impact upon how the damage actually happened, and thus where the occurrence of damage has in this way been (partially) shaped by the motor vehicle. Evaluated from this perspective, the case law of this court leads to the conclusion that the condition of liability that the damage must occur ‘in the context of the operation’ of a motor vehicle must in principle be construed extensively in accordance with the broad protective scope of § 7 I StVG [references omitted].

(b) In this case, however, as was stated above in the context of liability under § 823 BGB, the accident caused by M’s operating the vehicle in breach of the road traffic rules did contribute to the stroke suffered by the plaintiff as a result of the impairment of the general condition of a victim such as the plaintiff who suffered from high blood pressure. However, as with liability in tort, the responsibility of M under §§ 7 and 18 StVG requires that the loss suffered should fall within the protective scope of the norms in question [references omitted]. Any attribution of this loss to the risk of the operation of the vehicle driven by M must, however, be denied on the same grounds as those which justified the refusal to link, as a matter of the law of tort, the loss with the wrongful breach by M of the provisions of § 8 StVO. For since liability under § 7 StVG represents, so to speak, the price for the fact that the use of a vehicle on the roads offers a permissible source of risk, then the responsibility of the keeper and the driver which is based on this provision must be limited to those losses which represent the realisation of precisely those risks which result as such from motor vehicles. It is not possible to establish the necessary internal link between the risks of operation of a motor vehicle and the loss in the form of the plaintiff’s stroke and the damaging consequences of that stroke. In this context, rather, it is a separate sphere of risk which is involved also as regards the risk-based liability contained in the Road Traffic Act, and this sphere of risk must, according to the standards imposed for this form of liability, be attributed to the general risks of life.

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