BGH NJW 2001, 3127 VI ZR 198/00 (Stuttgart)
03 July 2001
Translated German Cases and Materials Under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
Translated by:
Raymond Youngs
Professor B.S. Markesinis


I. The appeal court has left open whether the defendant was at fault in relation to the accident. It has likewise left open the question of whether limitation of the defendant's liability simply followed directly from § 104 (1) of the SGB (Social Code) VII because the claimant had taken part as an employee in the defendant's business in the sense of § 2 (2) of the SGB VII in the activity which led to her injury or had been integrated in the defendant's business. In any case, the defendant was entitled to privilege from liability under § 106 (3) alternative 3 of the SGB VII, because the accident had occurred in a temporary business activity on joint business premises, and the defendant could at the most be charged with negligence. The limitation of liability in accordance with § 106 (3) of the SGB VII did not only apply in the relationship of several employees of the businesses involved to each other, but also in the relationship between an employee suffering harm and the entrepreneur of the other business, and thus here the defendant.

II. The appeal judgment withstands the arguments of the appeal in law in the end result.

1. The appeal court correctly assumes that - even if the claimant's subsidiary activity was not an activity for the defendant's business so that liability was directly excluded under § 104 (1) of the SGB VII - it was anyway a case involving the temporary joint business premises of the claimant's husband's undertaking and the defendant's undertaking in the sense of § 106 (3) alternative 3 of the SGB VII. This is because the business activities - on the one hand an attempt by the defendant to terminate a pregnancy by means of an ultrasound probe and on the other hand the detention of a horse by holding its rear leg - were activities which were consciously and intentionally connected and associated with each other. They each complemented the other, and the claimant supported the defendant, who could not carry out his activities without the horse being detained by another person (see, as to the prerequisites for joint business premises in the sense of § 106 (3) alternative 3 of the SGB VII [references omitted]).

2. In the end result the appeal court has correctly let the defendant have the benefit of privilege from liability in connection with temporary business activities on joint business premises in accordance with § 106 (3) alternative 3 of the SGB VII. Contrary to the appeal court's view, however, there is no exclusion of possible liability on the part of the defendant for personal injury to the claimant on the basis of negligent behaviour simply because the undertaking's liability on injury to a person insured by another undertaking on joint business premises would in principle be excluded under this provision. As the Senate has decided in its judgment of the same day in the case [reference omitted], such an extensive meaning cannot be attributed to § 106 (3) alternative 3 of the SGB VII. It is only the insured entrepreneur who carries out a temporary business activity on joint business premises himself in the sense of § 106 (3) of the SGB VII, and thereby harms a person insured by another undertaking, who benefits from the release from liability.

a) This follows from the sense and purpose of the provision, the justification for which is (only) found in the so-called community of danger (Gefahrengemeinschaft) (reference omitted). According to this, those who act as wrongdoers in close contact with each other obtain an advantage by the exclusion of liability. They must, on the other hand, accept as victims in return for this the disadvantage that they themselves cannot claim compensation for their personal injuries against the direct wrongdoer. Other viewpoints which have a role to play in the cases of §§ 104 and 105 of the SGB VII (preservation of industrial peace, and replacement of liability and compensation by payments under accident insurance financed by the entrepreneur [reference omitted]) cannot apply here [reference omitted] and cannot therefore justify an exclusion of liability which applies generally even for the entrepreneur.

b) The wording of the provision also bears this interpretation. Even the entrepreneur can be a "person carrying out activities for his undertaking" if he personally performs business activities temporarily on joint business premises. The statute does not use the concepts of the entrepreneur and the undertaking synonymously. That follows, for example, from § 136 (3) of the SGB VII, which defines the entrepreneur using the concept of the undertaking.

c) This interpretation is also in harmony with the system of the SGB VII as a whole. Over and above what is provided in the earlier regime in the RVO (Reich Insurance Order), the entrepreneur is included in the accident insurance in many cases as the insured (see §§ 3 and 6 of the SGB VII). He may thereby obtain claims for payment against the accident insurer. But this also means that the entrepreneur as a victim cannot under § 105 (1) of the SGB VII as a rule make any claims in civil law against the wrongdoer who acts within his business. § 105 (2) of the SGB VII widens this to include even uninsured entrepreneurs. On the ground, amongst other things, of the concept already mentioned of the community of danger, the regime of § 105 (1) of the SGB VII applies reciprocally for other persons active in business. That means it does not only apply to them as victims, but it simultaneously provides them with privilege as wrongdoers. That did not need to be arranged here in the same way for the entrepreneur himself, merely because his liability is limited in such cases anyway under § 104 (1) of the SGB VII (although there on other grounds). If this reciprocal limitation of liability of insured persons carrying out activities in a business in close association with each other (which also extends to the entrepreneur) is now extended under certain prerequisites in accordance with § 106 (3) alternative 3 of the SGB VII to persons from various undertakings carrying out activities and coming into contact with one another, it is consistent with the system to include insured entrepreneurs carrying out activities on the joint work premises as well.

3. Finally "insured persons from several undertakings" have also temporarily carried out business activities with the claimant and the defendant on the joint work premises. The claimant was insured for her husband's undertaking with the agricultural professional association (Landwirtschaftlichen Berufsgenossenschaft). The defendant was - as the appeal in law no longer questioned at the oral hearing - insured voluntarily with the professional association for the health service and welfare care (Berufsgenossenschaft für Gesundheitsdienst und Wohlfahrtspflege) for the veterinary practice undertaking.

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