BGHZ 97, 14 - VI ZR 48/85 (OLG Stuttgart)
14 January 1986
Professor Basil Markesinis
Raymond Youngs, Senior Research Fellow at the Institute of Global Law

Summary of facts:

The claimant claims compensation for injuries suffered in a road traffic accident on the 10th January 1981, from the first defendant as keeper and driver of the motor car involved and the second defendant as insurer of it.

The dispute is not about liability but only about whether the claimant can demand the anticipated costs for removing abdominal scars resulting from an operation to the small intestine which was required by the accident. She cannot yet decide whether to have this operation because of its uncertain outcome, but she claims its cost assessed at 10,668 DM on the basis of private report obtained by her. The defendants are prepared to pay for an operation actually undergone by her, but not merely fictitious costs.

The Landgericht and the Oberlandesgericht rejected the claim to payment of 10,668 DM. The appeal in law by the claimant was unsuccessful.



II. The appeal court correctly assumes in this case that the claim to compensation under § 249 sentence 2 of the BGB for accident injuries suffered also covers, in principle, expenditure on the cosmetic removal of a scar caused by an accident, even if no further disturbance of functions results or even is merely feared from the scar. As the Senate has already stated in its judgment of the 3rd December 1974 (reference omitted), those means are to be put at the disposal of the victim which are necessary in order, if possible, to restore his physical integrity in this respect. The appeal court is however of the view that the claimant's claim to payment is not well founded at the present time, for the following reasons.

According to § 249 sentence 2 of the BGB, the victim could admittedly demand, instead of restoration, the sum of money necessary for it. In the case of a physical injury, however, this claim would assume a firm and recognisable intention on the part of the victim actually to rectify the injuries inflicted on him and / or their consequences. That was lacking here. On the harming of non-material interests - as with harm to persons - one would have to assume a commitment of the costs of restoration to their purpose if the provisions of § 253 of the BGB were not to be circumvented.

Over against this, the appeal in law takes the view that the victim is completely free in the use of the means placed at his disposal. A sum of money which is paid for a necessary operation would not have to be used by him for this purpose. He could therefore even demand compensation for the costs of a fictitious operation.

The deciding Senate - in agreement with the courts of earlier instance - cannot accept this.

1. When a motor vehicle is damaged, the Senate has admittedly approved in principle a claim to compensation for the so-called fictitious costs of repair (references omitted). Contrary to the view of the appeal in law, it has however not so far recognised in principle in the case of harm to persons a claim by the victim to compensation for fictitious costs. The decision of the 3rd December 1974 (reference omitted) expresses no view on this subject...

In the published case law of the courts of first instance, the compensatibility of fictitious costs of cure is variously dealt with...

In the academic literature opinions are also divided...

2. The provisions of § 249 sentence 2 of the BGB are the basis of the claim for compensation made by the claimant. According to this sentence, when a person is injured or a thing damaged, the victim can demand, instead of the restoration of the former state of affairs as required under § 249 sentence 1 of the BGB, "the sum of money necessary for this".

a) The deciding Senate has, since the seminal decision of the 23rd March 1976 (reference omitted), granted this claim to payment of the necessary costs of restoration to a victim when his motor vehicle is damaged in cases where right from the outset he has no intention at all of having the vehicle repaired. He intends to deal with the situation in some other way, perhaps by continuing to use the unrepaired vehicle or, as in that case, by giving it, unrepaired, in exchange on the purchase of a new vehicle. The Senate saw the justification for this awarding of "fictitious" repair costs in the victims's freedom of disposition, which it previously accepted by reference to the history of the provision's origin (references omitted). According to this, the victim is in principle free to decide whether he really wants to apply for this purpose the sum necessary for the restoration in accordance with § 249 sentence 2 of the BGB, or whether he wants to use it in some other way. Whether the person suffering harm makes the decision about use of the compensation money for some other purpose only after receipt of the money, or whether he has already acted accordingly before the payment, makes no difference in this connection.

All the cases in which the Bundesgerichtshof has accepted this freedom of disposition by the victim related to claims to compensation because of damage to objects (references omitted). In cases of this kind, the victim's decision about how he uses the sum of money (and, associated with this, his total or partial relinquishment of the right to restoration to which this sum of money relates) does not in substance amount to anything more than a disposition of property with a view to a transfer of the loss within his assets. The need for repair of the damaged object finds expression only within the assets of the victim and it remains expressed in these alone, regardless of how he decides to use the sum of money (reference omitted). If he has the object repaired, he will have to bear the necessary costs of this. If he disposes of the object while unrepaired, he will obtain appropriately lower proceeds from the sale. Even if he continues to use the object while unrepaired, his assets will remain burdened in so far as the value of the damaged object is smaller than that of the undamaged object. The state of the victim's assets is restored again by payment of the necessary repair costs (reference omitted). How the victim then actually structures his assets - whether he repairs the object, buys a new one or makes dispositions of a completely different kind - is his affair, which is, in principle, no concern of the tortfeasor.

b) This freedom of disposition on the part of the victim in relation to the sum of money due from the tortfeasor for restoration purposes cannot be transferred to personal injury. In this case, restitution in kind, for which the victim can demand a sum of money under § 249 sentence 2 of the BGB, is directed to the restoration of physical integrity and therefore to the removal of non-economic loss. To understand a victim's relinquishment here of a right to restitution as a mere disposition of assets, appropriately valued by the sum of money from § 249 sentence 2 of the BGB, is by the nature of the case out of the question. The decision of the victim not to submit himself to medical treatment - perhaps because of the risks associated with this or the doubtful outcome - and to continue to live with the untreated injury relates to a different plane to a disposition of assets with a sum of money from § 249 sentence 2 of the BGB. The decision is in principle no more commensurable with such a disposition than is the injury itself with which the victim remains burdened. The law grants him monetary compensation for this in the form of damages for pain and suffering.

The victim who is relinquishing any kind of treatment can no more claim from the tortfeasor costs of treatment for a form of restitution which he simply does not want, than he can demand from the tortfeasor under § 249 sentence 2 of the BGB the costs of a (dearer) operation when he decides in favour of (cheaper) conservative treatment. If the victim demands the costs of treatment even though he does not want to have the treatment carried out, he is in reality demanding compensation for the continuing impairment of his health. The legal order only grants compensation of this kind to the victim in accordance with § 253 of the BGB subject to the prerequisites of § 847 of the BGB. If the victim were to be granted the fictitious costs of medical treatment which is not carried out, this would lead to evasion of § 253 of the BGB. In the cases in which the prerequisites of § 847 of the BGB are not present for the granting of damages for pain and suffering, the victim would receive such damages when they are not awarded to him under the law. In other cases he would be able to increase damages for pain and suffering awarded to him in accordance with § 847 of the BGB in a manner not provided for by the law. For the reasons explained, in personal injury cases the victim cannot in principle have any freedom of disposition in relation to the use of the costs of restoration. Instead, the costs of restoration in the personal injuries field are committed to their purpose.

Therefore the victim can only demand costs of treatment under § 249 sentence 2 of the BGB if he has the intention of actually having the treatment carried out.

2. As a rule this intention will emerge simply from the need for treatment of the injury and the measures taken for its treatment.

In the present case the appeal court has, however, not been able to establish that the claimant will have the removal of the scars carried out...

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