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Case:
BGHZ 56, 163 VI. Civil Senate (VI ZR 78/70) Schockschaden-decision = NJW 1971, 1883 = VersR 1971, 905, 1140
Date:
11 May 1971
Translated by:
J A Weir
Copyright:
Professor B. S. Markesinis

On 6 March 1965, when he was sixty-four years old, the plaintiff’s husband was fatally injured in a collision with the defendant’s motor vehicle. The plaintiff was fifty years old at the time. In this suit she claims damages for the injury to her health which she suffered through the death of her husband.

The Landgericht allowed the claim in full, the Oberlandesgericht in part. The defendant appealed with permission, and his appeal was allowed. The judgments below were vacated, and the case remanded to the Court of Appeal.

Reasons

A . . .

2 (a) . . .

(b) The Court of Appeal was wrong to find that the plaintiff suffered any real injury to her health as a result of hearing of the accident (see BGH VersR 1966, 283, 285 ff.; OLG Freiburg, JZ 1953, 705, 709).

Apart from a few special instances not here in point, our law consciously rejects any claim for harm due to psychical pain unless it results from injury to the plaintiff’s own body or health. This is a policy decision of the legislator. It does not, however, prevent our granting an independent claim to the exceptional person who is ‘traumatized’ by being involved in an accident, or hearing of one, and who in consequence suffers real damage to body or mind. Nor, if we leave aside the cases of ‘purposive neuroses’ and supervening causes, for which special rules have been developed, is it an objection to granting such a claim that the only reason the victim’s reaction was so severe was that he had a pre-existing organic or psychical weakness which was triggered by the accident. The opposite view is taken by Stoll in his paper for the 45th German Juristentag 1964, 20, but we cannot agree with it, if only because such an unusual reaction normally lies outside the victim’s control as well as the defendant’s.

On the other hand it is a matter of common knowledge that the pain, grief, and fright arising from a very negative experience can have a very marked effect on one’s physiological system and one’s ability to cope. Yet to treat such disturbances as invasions of health in the sense of § 823 I BGB would be inconsistent with the binding decision of the legislator (Stoll, idem, 19 ff.). Except in cases where the injury was intended by the actor, liability for harm psychically occasioned, even though it may be adequately caused according to the traditional formula, must be limited to cases where the man in the street, and not only a medical practitioner, would describe it as injury to body and health [reference omitted]. Under certain circumstances, therefore, injuries which are medically ascertainable but do not amount to a ‘shock’ to the system will go uncompensated. Accordingly, no claim can be made in the normal case of deeply felt grief, which, as everybody knows, may have quite serious effects on a person’s general well being.

(c) In the light of these principles, the opinion of the Court of Appeal cannot stand.

The Court of Appeal laid weight on the expert’s finding that ‘the plaintiff naturally suffered severe psychic shock on first hearing of the death of her husband’. But the court read too much into this. The court had formally asked the expert to report on whether the plaintiff had suffered ‘a severe psychic shock which altered her personality and made her depressed, unduly excitable, sleepless, tearful, and apt to shiver on the slightest occasion’, taking these terms from the written evidence of Dr C, the plaintiff’s general practitioner, evidence of which the expert was somewhat critical. In his reply the expert simply confirmed in general terms that there had been a ‘severe psychical shock’, though it is doubtful, in view of what he said immediately thereafter, whether he intended this to constitute a medical finding. As to the other symptoms about which he was asked, he made no positive finding, but rather indicated that he himself had not observed them. It would require stronger evidence than this before the Court of Appeal could properly hold that the plaintiff had suffered an injury to health sufficient to ground a claim.

In everyday speech the phrase ‘severe psychical shock’ denotes a violent temperamental reaction which may have nothing in common with an illness of any kind. Medical men do not use the notion of shock to describe a psychopathological condition. Used to describe a pathological condition (apart from the special case of shock therapy) ‘shock’ denotes simply an acute disturbance of the circulation [reference omitted] which can result from experiencing an accident or, more rarely, hearing of one. This is naturally of a transitory nature, though it can lead to lasting organic damage. It is by no means clear that the expert believed this to have occurred. A person who experiences an accident, and less often a person who hears of one, may also suffer psychopathological effects. Doctors call this ‘neurosis’ (not necessarily a purposive neurosis of the kind for which no compensation may be given) or in serious cases even ‘psychosis’ [reference omitted]. The expert’s affidavit does not suggest that he was testifying to any illness of this kind. It is not enough that he did not say there was none: a positive finding is necessary or the plaintiff will fail to meet her burden of proof.

IV. To the extent, therefore, that it grants the plaintiff a claim for damages on her own account, the judgment under appeal cannot be sustained.

When the Court of Appeal re-examines the matter it will need to be convinced, before it can allow the plaintiff’s claim even in part, that on hearing of the accident she not only experienced the normal reactions of pain, grief, and depression, but directly suffered a ‘traumatic’ injury to her physical and psychical health. Further expert evidence may be required, and if the expert testifies to such a condition, it will be necessary to ask to what extent he is relying on the evidence of the general practitioner, which is inadmissible in its present form.

B. I. If, after further investigation, the Court of Appeal holds that the claim should be admitted, the question of the deceased husband’s contributory fault will arise. This must be dealt with in a different manner.

1. The Court of Appeal held that in cases like the present one cannot apply § 846 BGB by analogy, and in so holding it was consciously deviating from a view laid down by the Reichsgericht (RGZ 157, 11; RG DR 1940, 163) and supported by some scholars [reference omitted]. We agree with the Court of Appeal on this point: the opinion of the Reichsgericht is unacceptable in the form in which it was expressed. It was certainly right to emphasize that the basic rule of law is that only the direct victim of a tort may sue, a rule to which exceptions are made by §§ 844 and 845 BGB in favour of surviving dependants and persons entitled to services. But it was in error to treat the claim by a third party who suffers injury to his own health when someone else is injured or killed as if this were another case of ‘indirect injury to a third party’ and to apply § 846 BGB to it by analogy. The difference between this case and those in §§ 844, 845 BGB is essentially that here the third party is affected in one of the legal interests specified in § 823 I BGB and that he is therefore a direct victim with an independent claim of his own under that section. Claims by the indirect victim under §§ 844, 845 BGB presuppose that the primary victim’s harm resulted from a tort done to him (BGH VersR 1961, 846, 847) and that is why § 846 BGB provides that any fault on the part of the primary victim which contributed to the harm suffered by the third party must be taken into account in any claim the third party may bring under §§ 844, 845 BGB. This provision is perfectly sensible in relation to claims brought under §§ 844, 845 BGB, but it cannot apply to an independent claim brought under § 823 I BGB, for it must be irrelevant to a claim for harm done directly to the third party that it occurred by means of an injury to someone else. Indeed, the third party’s rights may arise regardless of whether the primary victim of the accident had or has any claim for damages at all [OLG Munich NJW 1959, 819d; other reference omitted].

2. Yet we must agree with the result reached by the Reichsgericht, at least in cases of the kind before us, that in considering the personal claim of the indirectly injured widow one must take account of any contributory fault of the deceased husband. This, however, results from an analogical application of § 254 BGB, itself a specific application of the more general principle of law contained in § 242 BGB (BGHZ 4, 355).

(a) This is quite clear in relation to a claim for damages for pain and suffering (Schmerzensgeld; § 847 BGB), to which equitable principles apply. The Bundesgerichtshof has held (VersR 1962, 93) that a claim for damages for pain and suffering, unlike a claim for material damage, may be reduced because the victim was especially vulnerable to harm by reason of his bodily or psychical constitution, and that the personal contributory fault of the victim, which does not arise in this case, is only one of the factors to be taken into account in estimating the damages which are equitable in the circumstances (BGHZ 18, 149, 157). The same must be true of other factors in the victim’s area of responsibility which contribute to the harm, such as a close personal relationship to the primary accident victim, as in this case.

(b) But even in cases of material harm the result reached by the Reichsgericht is correct. Where, as here, injury to health is caused at a distance, so to speak, the contributory fault of the damaged must be laid to the plaintiff’s account. For here the accident to her husband was only able to cause the harm supposedly suffered by the plaintiff because as a result of their close personal relationship his tragedy became hers. One cannot imagine a person suffering in this manner on hearing of a fatal accident to a total stranger; indeed, if it happened, it would be so unusual that one would decline to impute it to the defendant on the ground that it was unforeseeable. But if the critical reason for the plaintiff’s suffering this injury to her health was her close personal relationship to her husband, it is only fair that her claim should be affected by his fault in contributing to the accident. We must apply by analogy the basic idea of § 254 BGB, that a person’s claim for damages must be reduced to the extent that the occurrence of the harm was due to a contributory factor from the plaintiff’s sphere of responsibility. In this connection we must make a further observation. If the husband’s death had been solely attributable to his failure to take care of himself, the plaintiff would have had no claim whatever for compensation for the consequent injury to herself. A person is under no legal duty, whatever the moral position may be, to look after his own life and limb simply in order to save his dependants from the likely psychical effects on them if he is killed or maimed: to impose such a legal duty, except in very peculiar cases, for instance, wherever a person commits suicide in a deliberately shocking manner, would be to restrict a person’s self-determination in a manner inconsistent with our legal system.

It will be seen from this that unsatisfactory results follow from the view adopted by the Court of Appeal and some writers, that the primary victim’s contributory fault is not to be taken into account when shock damage is caused at a distance. We have seen that, contrary to the view expressed by the Reichsgericht (RGZ 157, 11, 14) and by some of the writers, a tortfeasor cannot claim contribution under §§ 840, 254 BGB from the heirs of the primary victim, since the primary victim is not liable to the shock victim at all, much less as a common debtor. It follows that unless our present view is adopted, the tortfeasor would owe the shocked widow a full indemnity for her lost earnings even if the husband was so much more to blame for his own death than the tortfeasor that in a suit by the husband the tortfeasor would be wholly exonerated under § 254 BGB. This would be quite unacceptable.

Now it is true that in principle when a tortfeasor is sued he bears the risk of there being no solvent joint tortfeasor from whom he can claim contribution. But there are exceptions. For example, the courts have held that if, by reason of personal relationship with him, the victim releases one tortfeasor from liability in advance, the other tortfeasor should be protected (BGHZ 12, 213). In our case the third party has not been exonerated by release or by capricious conduct on the part of the creditor, but it is none the less true that the primary victim has, though involuntarily, had an adverse effect on the health of the shock victim in respect of which he is not liable. Once again, in these peculiar cases, the harm is caused only because of the very close personal relationship between the plaintiff and the primary victim, thanks to which the plaintiff adopts as her own the harm done to another, and the loss of his life becomes a loss, a serious loss, to her. In such a case, where it would be wrong to require the primary victim or his heirs to make contribution to the tortfeasor, it is only fair that the primary victim’s causal contribution to the accident should be borne not by the stranger who triggered the harm but by the dependant who was hurt only because of her personal relationship with the primary victim and her identification with him. It was equitable considerations such as these that led the legislator to enact § 846 BGB though, as we have said, it covers a different case. In relation to that paragraph the Protokolle (vol. 2, II, 638 ff.) explain that to treat the third party’s claim against the tortfeasor as entirely independent is too theoretical and logically extreme, and that to apply that view strictly would lead to unjust and inequitable results; the claims of a dead man’s survivors result from his death, and if his careless conduct conduced to or accelerated his death, it is only right, in view of their relations with him, that the survivors should have to bear the consequences.

The claim for shock damage which arises in this distinctive manner is a judge-made claim, and though the Court of Appeal would like to extend it beyond the limits set by the Reichsgericht, we are not persuaded by any of the objections which its position on this question has elicited. It only remains to say that, contrary to what is stated in a number of the books, the Reichsgericht was always perfectly clear (see RGZ 162, 321) that cases of shock damage are cases of direct injury to a legal interest protected by § 823 I BGB and not simply instances of indirect harm of the kind covered by §§ 844, 845 BGB.

(c) The present case does not raise the issue of how the decision would be if the occurrence of the harm was wholly or partly independent of any personal relationship, or indeed how far a tortfeasor might be liable at all if the persons suffering the damaging reaction were third parties in no way related to the primary victim.

 

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