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Case:
BGHZ 18, 286
III. Civil Senate
(III ZR 84/54)
= JZ 1956, 177
Date:
17 October 1955
Note:
with approving note by K. Sieg
Translated by:
F.H. Lawson and B.S. Markesinis
Copyright:
Professor Basil Markesinis

In 1946 the husband and the father of the plaintiffs had to undergo the general inoculation against typhus, which was carried out in virtue of an ordinance of the Oberpräsident of the then province of Hanover of 22 January 1946 with the approval of the British military government. He had three inoculations in all, after which he suffered an illness, in the course of which a malignant swelling appeared. On 27 February 1948 he died.

The plaintiffs claimed compensation from the defendant State on the ground of its breach of official duty and—in a subsidiary way—for public sacrifice in being deprived of their right to support by the death of their breadwinner. They alleged that the death of their husband and father was caused by the typhus inoculation and the doctor was to blame for the death.

The lower courts applying the rules on sacrifice for the public good declared the claim justified in principle but otherwise dismissed the action.

The defendant’s application for review failed for these

Reasons

I. …

II. In agreement with the Landgericht the Court of Appeal finds it proved, on the basis of the evidence adduced, that the typhus inoculations applied to the deceased produced a staphylococcus suppuration which within 11/2 to 2 years developed into a malignant swelling of sarcoma appearance, from which death resulted. Against this interpretation of the evidence no doubt is raised by the applicant. An attack is made on the view taken by the Court of Appeal that the inoculation constitutes not only an incontrovertible condition in the physical sense (conditio sine qua non) for the death, but also the cause in the legal sense, i.e. an adequate condition for the occurrence of the death. That attack is, however, unfounded. In this connection it is of importance—as the Court of Appeal conclusively observed—that the inoculation led to the death not through the intervention of independent acts of third persons or the deceased himself, but that death ensued without the co-operation of any further intervening causes. Admittedly the findings of the Court of Appeal must lead to the conclusion that a staphylococcus suppuration only seldom results from a typhus inoculation and also, in particular, that the development of such a suppuration into a fatal sarcoma belongs to the class of rare medical phenomena. All the same, neither such a suppuration nor its further development into a fatal sarcoma can be regarded as circumstances outside all medical experience which, according to the case-law of the Reichsgericht, further developed by the Bundesgerichtshof (cf., e.g., BGHZ 3, 261, 265–7) could not be described as an adequate casual connection. It must be noted that the question of adequacy between condition and consequence cannot be answered in a purely logical, abstract way by numerically computing the frequency of the occurrences of such a consequence, but that in a value-judgment those out of the many conditions in a physical sense must be excluded which on a reasonable view of things cannot be regarded as circumstances giving rise to liability; in other words, the limit must be found by a value-judgment ‘up to which a liability for the consequences of a condition can be equitably imputed to its originator’ (BGHZ 3, 267). In making such a value-judgment it must be of importance (for the purposes of setting the limits of liability) whether the originator of the condition consciously took into account the more or less remote possibility of damage resulting from it or would not have acted otherwise if he had thought of the possibility of such damage. In that case the limit of liability may be set relatively wide. There would have been no decision not to order a general typhus inoculation if a possibility—though extremely rare—of death had been envisaged. Accordingly, the typhus inoculation (carried out in virtue of an official ordinance) must be imputed to the State as the cause creating the death, even though the manner in which the inoculation led to the death belonged to the class of exceptional medical phenomena.

Moreover, for the following reasons a liability-creating causal connection between the inoculation and the death cannot be called in question: That an inoculation—whatever be the kind—leads to the death of the person inoculated does not lie beyond the bounds of experience. That is the ground for example for § 6 of the North Rhine–Westphalian Act on Inoculation Injuries of 10 February 1953 (GVBI 166). If, therefore, an inoculation has directly caused a death, i.e. without the co-operation of further intervening causes, an adequate causal connection between inoculation and death must be said to exist irrespective of the precise manner in which it came about (e.g. through infection, as in this case, or because of a particular predisposition of the inoculated person).

III. The applicant goes on to object that the Court of Appeal granted to the plaintiffs a claim for compensation, as only indirectly injured, by an analogous application of § 844 BGB. The Senate, however, shares the Court of Appeal’s opinion.

The right to compensation is, indeed, governed by the principle that only the person directly injured is entitled to compensation. None the less we have here to do with the exceptions contained in §§ 844, 845 BGB. These exceptional provisions, which in the case of a person’s death afford compensation to persons who suffer indirect damage, correspond to the quite general opinion prevalent before the BGB came into force, which developed at a very early date in modification of Roman law and had already found a place in the positive law of different countries (cf. for the historical development RGZ 7, 139, 141–4). Parties of the kind of interest here, who have suffered only indirect damage are allowed damages not only in the case of culpable unlawful acts but also where the duty to compensate rests exclusively on strict liability (§ 3 II Haftpflichtgesetz: § 10 II StrVerkG; § 21 II LuftVerkG of 21 August 1936). Further, the principles laid down in §§ 844, 845 BGB apply, if not generally, certainly partly to the law of contract by virtue of express provisions (§ 618 III, § 62 III, § 76 I BGB) and are to that extent regarded as capable of an analogous application (RGZ 167, 85, 89; BGHZ 5, 62 ff., with further references). Likewise, it is generally recognized that these principles are also to be applied in the sphere of public law (RGZ 11, 22, 23 and 112, 290, 297); Enneccerus-Lehmann, Recht der Schuldverhältnisse (1954) 971). Our law is accordingly widely governed by the principle that, where compensation is payable to the injured party for bodily injury, compensation must also be afforded in a case of death to those deprived of their legal right to maintenance. This principle, according to what has been said, cannot without further ado be applied to all cases in which compensation would have to be paid for a mere bodily injury (e.g. not simply in the field of pure contract law). If, however, in general a claim for compensation is afforded for violent attacks on bodily integrity, then within the scope of compensation claims a corresponding application of § 844 BGB to killing cannot be refused. The state of facts that gives, outside all contractual relations, a claim for compensation on the ground of sacrifice for the public good for attacks on bodily integrity are from the points of view of interest here so close, both in law and in fact, to the states of fact in which compensation is to be paid for similar damage under §§ 823 ff. BGB or on the basis of strict liability that those who are legally entitled to support in case their breadwinner is killed cannot in any circumstances be denied redress for the loss of their right to support. The legal result is unacceptable that, on the one hand, interference by a public authority with corporal integrity leading to an injury must be compensated while, on the other hand, if the interference leads not only to corporal injury but to death, and the person concerned has made a far bigger ‘sacrifice’ the relatives entitled to maintenance, who are only affected indirectly but particularly hard by this sacrifice should be left wanting. Such a result would also, as the Court of Appeal has already conclusively remarked, be incompatible with the principle of a social law-abiding State (Art. 20 GG) and would clash with the constitutionally guaranteed protection of the family (Art. 6 GG). The Court of Appeal, therefore, rightly awarded to the plaintiffs (i.e. the widow and the sons of the deceased) compensation on the ground of sacrifice for the public good in compliance with § 844 BGB.

The amount of compensation to be awarded to those entitled to support in accordance with the general rules on sacrifice for the public good by the analogous application of § 844 BGB, already limited by § 844 to the actual loss of support cannot—as the applicant would wish—be further limited quite generally by the courts, to conform to the corresponding rules of social insurance law. That can only be done by express legislative provision, such as is, for example, contained in § 6 of the North-Rhine–Westphalian Act on Inoculation Injuries.