In order to enter a private driveway, the defendant made a sharp left-hand turn from the right-hand side of the highway. The plaintiff came round a bend behind him on a 490 cc. motorcycle, and struck the defendant’s vehicle near the left-hand kerb. The plaintiff was thrown on to the sidewalk and suffered serious injuries.

The Landgericht granted the plaintiff’s claim for damages for pain and suffering, and held the defendant liable for all other damage as well. On the defendant’s appeal, the Oberlandesgericht held that the claim for damages for pain and suffering should be allowed only as to two-thirds, and that the defendant was liable only for a like proportion of the other harm suffered by the plaintiff. The plaintiff sought to have the decision of the Landgericht reinstated and the defendant sought to have the claims dismissed. Both appeals were unsuccessful.

Reasons

It was alleged that the plaintiff could and should have foreseen the defendant’s improper left turn in time to brake or swerve and so avoid the collision. The trial judge, however, held—unobjectionably in law—that this was not established. But an accident does not constitute an ‘unavoidable event’ in the sense of § 7 II KrfzG (Motor Vehicle Act) (now StVG (Road Traffic Act)) just because the plaintiff is not proved to have been at fault in contributing to it. Supposing that the defendant, as is possible, had put out his direction indicator and was proceeding slowly, and that the plaintiff had been driving with abnormally scrupulous care, alertly and attentively focusing all his faculties on the situation (NJW 1954, 185 no. 1), then the plaintiff might, despite the unexpectedness of the defendant’s manoeuvre, have avoided the damaging collision by braking or swerving, given that his own speed was perhaps only 20 m.p.h. If in this sense the accident could possibly have been avoided by the plaintiff, the danger attributable to his motorcycle is a factor which must be taken into account in any claim he may make (BGHZ 6, 319).

It is true that some writers have criticized the decisions of the Bundesgerichtshof (BGHZ 6, 319; VersR 1953, 337) to the effect that, except in the case of an unavoidable event, the claim of the injured custodian is subject to reduction by reason of any contribution made to the accident by the danger due to his vehicle (references omitted), but despite these criticisms this senate proposes to adhere to the established case-law. If someone else as well as the custodian of a car is liable to an injured third party and the question is how the loss should be borne as between the two of them, it is quite obvious that the custodian will have to bear part of his loss. The same must apply when the custodian of a vehicle which the legislature has stigmatised as dangerous, suffers damage while in the vehicle whose dangerous nature contributed to the accident, even if he himself was not at fault, or not provably so. Theoretically one might avoid splitting the loss in this way by drawing a distinction between the capacities of custodian and occupant, and attaching strict liability only to the capacity of custodian, but this would be unduly theoretical and quite unrealistic. The danger attributable to the custody of a motor vehicle exists equally if the custodian happens to be in his own car, as passenger or driver, and so in such a case also he must bear the consequences which flow from having it in his custody. It is irrelevant that § 8 StVG exempts him from liability to any other occupant. Berchthold is wrong to draw the conclusion that even a scrupulously careful custodian will always have to bear part of the loss he suffers (see also BGH VersR 5, 251, 253), since if the event is unavoidable, the dangerous nature of the vehicle has no part to play. If the danger does fall to be taken into account, the trial judge must in each case determine whether and to what extent the loss should be divided. Even then, as Gelhaar and Wussow have pointed out with reference to decisions of this senate, the custodian is not inevitably saddled with part of his loss. As against a tortfeasor whose conduct was gross or reckless, it might be right to ignore an insubstantial contributory danger. On the other hand (and this supports the view here put forward), it would not be right to require a person who has been only slightly negligent to bear the whole of the custodian’s loss when the custodian’s vehicle made a significant contribution to the harm.

The same must apply when a custodian-occupant brings a claim for damages for pain and suffering. It is true that in JW 1931, 3315, the Reichsgericht stated that the loss should not be divided unless the custodian would have been liable to any third party injured in the accident, and it refused to use § 17 KrfzG to curtail the claim for damages for pain and suffering brought by an injured custodian who was responsible for nothing other than the custody of a dangerous motor vehicle. On the other hand, in RGZ 149, 213, the Reichsgericht held that the part of the loss which an injured custodian must bear if he himself was in part responsible was not subject to the monetary limit laid down by § 12 KrfzG. To this extent, therefore, according to the Reichsgericht, different rules may apply on the same facts depending on whether the issue is one of liability to a third person or of the duty to bear part of one’s own loss. It is certainly clear that the main reason the legislature set the monetary limit on the strict liability introduced by the KrfzG was to enable custodians of vehicles to insure themselves against liability without undue cost (see RGZ 149, 213, 215 and the reasons there given).

But the idea of so limiting the amount of a claim based on strict liability has no application when the question is whether the plaintiff should bear an appropriate part of his own harm. It would be irrational to say that the custodian need not bear any part of his loss when his claim is based on the BGB (loss of income, § 842; loss of services, § 845; damages for pain and suffering, § 847) but that his claim is reduced if it is based on the StVG when it is in any case limited in quantum (§§ 10–12 StVG). The result would be that a reduction would take place only in those very claims whose satisfaction the legislature thought particularly urgent, as the enactment of the KrfzG/StVG shows. The legislature cannot have intended this result to flow from the limitation on the amount of the defendant’s liability. It is rather for the judge whenever the situation is appropriate for a division of the loss between the victim and the person who caused the injury, to apply § 17 I, 1 StVG, which is analogous to § 254 BGB, and decide whether the victim is to bear an equitable part of his own loss.

This conclusion is logically consistent with the decisions of the Bundesgerichtshof on the question of contribution between common debtors liable for the same harm under § 17 StVG (BGHZ 6, 319, 322). The relationship between common debtors and their respective contribution claims depends exclusively on the actual facts, especially the extent to which they respectively contributed to the harm, and not on the basis of their legal liability to the victim; the adjudication of contribution claims is entirely divorced from the legal basis of the individual debtor’s liability, to the point where it is irrelevant whether the actual causes of the harm were a ground of liability to the victim (reference omitted). Now, since the same considerations apply, and the results should be the same, when one is weighing up the respective responsibility for harm as between several common debtors on the one hand (§ 17 StVG) and as between those causing and suffering harm on the other (§ 254 BGB), so in the latter case also one should take no account of the basis of liability, but only of the totality of the facts, especially the extent to which each contributed to the harm as a matter of causation (reference omitted). Just as one is to ignore the legal basis of liability in the individual case when it comes to dividing the loss (BGH VersR 5, 163), so one should ignore the question whether the harm is of such a kind that a third party could claim in respect of it. The only safe way to an equitable division of the loss is to have the judge make the custodian bear part of it by applying the standards of § 17 I, 1 StVG, as would be the result of applying § 17 StVG and § 254 BGB [reference omitted].

Accordingly, the Court of Appeal was right to hold that the plaintiff’s claim for damages for pain and suffering was also affected by the danger contributed by his motor cycle.

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