Tort Law — Causation

Date Citation Note
11.11.1997 BGHZ 137, 142 VI. Civil Senate (VI ZR 376/96) = NJW 1998, 810 Predisposition leading to consequential harm Claim for compensation
§ 249 BGB
10.11.1994 BGHZ 127, 378 III. Civil Senate (III ZR 50/94) Contributory negligence Failure to undergo remedial surgery Case note
§ 133, 157, 166, 242, 278, 631-635 BGB
15.03.1994 BGH NJW 1994, 1592 VI. Civil Senate (VI ZR 44/93) Contributory negligence
Reliance on a surveyor’s report
Failure to undergo remedial surgery
§ 254 BGB
17.09.1991 BGH NJW 1991, 3275 VI. Civil Senate (VI ZR 2/91) = VersR 1991, 1293 Claim by employer (by subrogation) of victim of road accident for loss of earnings under §§ 823 I and 842 BGB, and § 3 Compulsory Insurance Act
Change to new job in which earnings increased
Further job change for betterment, resulting in prospect not materialising
Earnings became less than in original job
Adequate causal link between loss of earnings and accident, but own decision broke chain of causation
Such exclusions however only in exceptional cases
§§ 249, 823, 842 BGB
16.02.1972 BGHZ 58, 162 VI. Civil Senate (VI ZR 128/70) Gehweg -decision = NJW 1972, 904 = JZ 1972, 559 See JZ 1972, 551 and VersR 1972, 560 for important articles by Deutsch Dutch army lorry collided with car; road blocked; other untraced cars damaged footway driving over it
Claim for damage to it against State (on basis of NATO armed forces statute) under § 829 and Art 34 GG
Adequate causal connection as foreseeable
Liability under § 7 StVG and lorry still in operation
Deliberate and unlawful action by car drivers imputable to lorry driver but not provoked or compelled by him
Not in his sphere of duty, nor preventable by him, nor due to his driving or operational hazard of lorry
§ 823 BGB
§ 7 StVG
29.01.1969 BGH NJW 1969, 789 I. Civil Senate (I ZR 18/67) = VersR 1969, 406 Claimant's agent agreed garaging of its car with hotel; arranged with third party; watches left in car disappeared
Claimant could claim under Drittschadensliquidation regardless of whether defendant could have known of its interest
Contract included boot contents
Burden on defendant to prove cause of loss (§ 282)
Contributory fault of agent under § 254
If harm not preponderantly caused by one party, assess degree of fault of each
Factors in this assessment
§§ 254.ff, 688 ff. BGB
24.11.1964 OLG Stuttgart NJW 1965, 112 (5 U 91/64) = VersR 1965, 296 = JZ 1966, 189 Defendant under influence of alcohol crashed car causing fire; claimant rescued occupants
Damages for pain and suffering under §§ 823 I and II and 847
Defendant adequately caused claimant's injury
Claimant's act did not prevent causal connection
Justifiable, not too remote, and did not need to be in performance of legal or moral duty
§§ 823, 847 BGB
14.03.1961 BGHZ 34, 355 VI. Civil Senate (VI ZR 189/59) = NJW 1961, 655 = JZ 1961, 602 with approving note by Flume First defendant with claimant’s consent allowed second defendant (known to have no licence) to drive car; lost control and claimant injured
Contrary to prior case law, no real consent or justification arose from claimant acting at own risk, but good faith required that claimant should not act inconsistently with own prior conduct, so value judgement required under § 254
Factors to be assessed here, especially young age of claimant
§§ 107, 242, 254, 823 BGB
22.04.1958 BGHZ 27, 137 VI. Civil Senate (VI ZR 65/57) = NJW 1958, 1041 = JZ 1958, 742 with an approving note by Boehmer Claimant's motor cycle collided with car; car driver negligent, and claimant convicted of speeding but acquitted on rehearing
Could not recover from car driver's widow costs incurred in defending himself
Not within area of protection of rule
Claim for economic loss not covered by § 823 I, nor by § 823 II with § 13 StVO
§ 823 I BGB
29.02.1956 BGHZ 20, 137 VI. Civil Senate (VI ZR 352/54) Neuroseschäden -decision = VersR 1956, 305 Motor cyclist collided with railway owned by defendant; head injury for which periodic payments ordered for 4 years
Claim for payments until retirement
Claimant emotionally labile but neurotic condition, and fantasy of sickness and need for guaranteed livelihood caused by accident
§ 254 only applicable if claimant can control will
Not equitable to attribute consequences here as contrary to purpose of claim if compensation prevents integration into social life
§§ 249, 823 BGB
17.10.1955 BGHZ 18, 286
III. Civil Senate
(III ZR 84/54)
= JZ 1956, 177
Victim innoculated against typhus under government ordinance; died of suppuration becoming malignant
State liable for breach of official duty and public sacrifice in deprivation of support
Innoculation adequate cause of death: would still have been ordered had a death been envisaged
Rare, but within medical experience
§ 844 applied by analogy to allow relatives to claim
Required by social law-abiding state (Art 20 GG) and family protection (Art 6 GG)
§§ 249, 844 BGB
§§ 74, 75 Einl. Preuß. ALR
25.09.1952 BGHZ 7, 198 III. Civil Senate (III ZR 322/51) = NJW 1953, 700 = VersR 1952, 430 Children claimed for death of mother after abortion by doctor; had pierced womb and left afterbirth there; not hospitalised until haemorrhage found
No inference of carelessness but lack of after care could ordinarily have produced harm
Adequate cause under § 287 ZPO even if occurrence of harm not beyond reasonable doubt and regardless of prospects of avoiding it
Consent inoperative if contrary to §§ 134 or 138
Deliberate injury to body and infringement under § 823 II of protective enactments §§ 213 and 218 StGB
Pregnant woman also protected
Defendant liable for consequences even if not his fault
Consent relevant under §§ 254 and 846
§§ 242, 287 ZPO, 254, 823 BGB
§ 218 StGB
24.04.1952 BGH NJW 1952, 1010 III. Civil Senate (III ZR 100/51) = VersR 1952, 352 Victim struck by vehicle, necessitating leg amputation; died 8 years later from artillery fire as not able to reach shelter
No adequate causal connection between laming and death as not equitably attributable
Exhaustive rules not possible as based on § 242
New, independent and unforeseeable event
§ 249 BGB
§ 287 ZPO
§ 7 KrfzG
23.10.1951 BGHZ 3, 261 I. Civil Senate (I ZR 31/51) Klappschuten -decision = VersR 1952, 128 Two ships let through lock side by side, as incorrect width given by master of first; ships stuck together; lock staff raised water level too fast in absence of lock keeper; second ship sank; insurer claimed from owner of first
Incorrect information conditio sine qua non of later events
Traeger's causation theory tempered by equity
Causer of accident usually answerable for results of later even unskilful conduct, but would optimal observer have foreseen conduct of lock staff or did it break causal connection?
§§ 823, 831 BGB
§ 4 BinnSchG
29.04.1942 RGZ 169, 117 VIII. Civil Senate Claimant knocked down by lorry; arthritis and sciatica ensued caused in equal shares by accident and predisposition
To be treated as entirely due to accident even if could have been caused by another event which actually happened
Predisposition only important in so far as it would reduce earning capacity on its own
26.04.1937 RGZ 155, 37 VI. Civil Senate (VI 395/36) Claimant suffered accident, causing harm, especially to nerves, impairing her earning capacity
Nervous predisposition did not prevent liability
Claimant's pregnancy conditioned present state, otherwise would probably have recovered
Accident adequate cause of claimant's state
Pregnancy did not break causal connection
§§ 249, 842, 843 BGB
§§ 144, 287, 379, 402 ZPO
22.06.1931 RGZ 133, 126 VI. Civil Senate (VI 46/31) Claimant hit by automobile when crossing road; failed to look but co-defendant driver could still have avoided accident
Adequate causation by claimant
Causation and fault of both parties to be balanced against each other under § 9 Automobile Act and § 254
§ 254 BGB
§ 9 KrfzG
§ 254 BGB
§ 9 Kraftfahrzeuggesetz
13.10.1922 RGZ 105, 264 III. Civil Senate (III 453/22) Claimant's husband shot by policeman aiming at escaping criminal; taken to hospital, caught influenza (prevalent in hospital and elsewhere) and died
Prussian state liable for negligent breach of official duty
Adequate causal connection despite possibility of contracting influenza in other ways