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Case:
BGH NJW 1975, 1886 VI. Civil Senate (VI ZR 95/74) = VersR 1975, 945
Date:
27 May 1975
Judges:
Professor B.S. Markesinis
Copyright:
K. Lipstein

The plaintiff owned a chicken-farm. The hens were housed in a building where they were arranged in so-called batteries. The first defendant supplied the plaintiff with concentrated chicken feed. On 8 September 1969 the second defendant, employed by the first defendant, delivered ten tons of chicken feed loaded on a lorry which was equipped with two tanks in which the feed was contained. The chicken feed was to be deposited in a silo attached to the building. The walls of the silo consisted of chipboard sheets of a thickness of 20 millimetres. On the outside of the silo, a feed-pipe leading to within 70 centimetres below the roof turned vertically into the silo and terminated at a distance of 1.25 millimetres from the opposite chipboard wall. The second defendant connected the tanks of the lorry with the feed-pipe by means of a hose-pipe. Using a compressor attached to the lorry, he blew the feed into the feed-pipe in order to deposit the feed in the silo. The force of the pressure broke the chipboard sheets of the opposite wall and the escaping feed was deposited on the adjacent roof of the building which collapsed under the weight. Many laying hens were killed or had to be destroyed. The plaintiff claimed damages in respect of the damage to the roof and to his livestock.

The Court of First Instance allowed the claim and the Court of Appeal of Aldenburg rejected an appeal by the defendant. Upon a second appeal the judgment below was quashed and the case referred back for the following

Reasons

I. The Court of Appeal left it open as to whether the first defendant is liable in contract, as the Court of First Instance has held. Instead it found that the first defendant was liable under § 7 I of the Road Traffic Act because an object belonging to the plaintiff had been damaged ‘in the course of operating the defendant’s motor vehicle’. According to the Court of Appeal, the necessary connection existed in space and time between a certain operational use or installation and the accident, at any rate if, as in the present case, a load was discharged from a vehicle with the aid of a motor, thereby causing an accident.

II. These conclusions cannot be maintained in face of the objections raised by the appellant. It is impossible to accept the view of the Court of Appeal that the accident occurred ‘in the course of operating a motor vehicle’ in the meaning of § 7 I of the Road Traffic Act.

1. According to the so-called engine-orientated view, which was enlarged by the traffic-orientated view first put forward by the Reichsgericht [reference] and subsequently adopted and developed by the Bundesgerichtshof [reference] in respect of certain cases, a motor vehicle is ‘in operation’ if its motor has been started and moves the vehicle or one of its operational parts. To that extent, as the Court of Appeal states correctly, it makes no difference whether during the operational activity the motor vehicle is located on a public highway or (as here) on private land (building site [reference]; works compound [reference]).

As a result of technical developments, the motor power of motor vehicles is being used not only to transport persons and goods, but also for other works processes which can hardly be regarded as merely loading or unloading goods for transport. Thus many specialized vehicles exist today which are constructed for special tasks but serve ordinary purposes at the same time. The heavy goods lorry of the defendant was also such a specialized vehicle, since it was fitted with special containers for transporting feed and was provided, inter alia, with a mechanical installation for discharging it. If an accident occurs in the course of employing operational installations of such special vehicles which do not serve directly the purpose of transport, it is not obvious that such an accident has occurred ‘in the course of operating a motor vehicle’ in the meaning of § 7 of the Road Traffic Act. In the present case, this cannot be said to have happened, contrary to the view of the Court of Appeal.

(a) The Court of Appeal, too, states that the question is whether the accident is still to be regarded as arising from the operation of the motor vehicle. According to the Court of Appeal the test is whether the accident was ‘closely connected in space and time with an operational process’ of the heavy goods vehicle (for this notion see the decisions of this Division [reference]). This formula indicates, in the first place, that a link of adequate causality must exist between the operation of the motor vehicle and the actual damage. However, the meaning of this formula is not completely expressed thereby. To that extent it only defines a minimum requirement for a causal link to exist. In addition, the effect caused by the operation of the motor vehicle for which damages are to be paid must be covered by the meaning and the purpose of the rule creating liability, i.e. by the protective range of § 7 I of the Road Traffic Act [references]. It is insufficient for the Court of Appeal to argue that the process of discharge falls within the sphere of operation of the lorry because the compressor employed for the purpose of discharging the load was impelled by the motor of the lorry. This establishes only the causal link between the operation of the motor and the damage which, however, cannot be in doubt. On the other hand, contrary to the opinion of the Court of Appeal, the occurrence is not to be attributed to the operation of the lorry, against the danger of which § 7 I of the Road Traffic Act is to provide protection, as the appellant correctly points out.

(aa) It is true that in accordance with the recent practice of the Courts of Appeal the discharge of a vehicle with the assistance of its motor constitutes a use of an operative installation corresponding to the purpose of the vehicle and therefore takes place ‘in the course of its operation’ [references—all concerning either the loading or discharging of oil by a tanker lorry]. These decisions are frequently cited in the literature, albeit without a more detailed discussion of possible objections against them [references]. This Division has expressly left the question open in the cases which have come before it hitherto on appeal from the Courts of Appeal of Nürnberg and Hamm as to whether an accident caused on the occasion of oil being loaded or discharged by a road-tanker can be also attributed to the operation of the latter in the meaning of the Road Traffic Act [references]. The decision of this Division dated 25 April 1956 [reference] also does not show any other attitude in principle. It is true that this Division held that a ‘close connection in space and time with the operational process’ existed in the case where a motor lorry dropped its load on a rubbish dump with the help of its engine power and thereby caused an accident. However, in that case, too, this Division observed that no need arose to decide whether such a connection ‘always’ exists when damage is caused on discharging a motor lorry.

(bb) Whether, as in the present case, an accident caused in the course of the unloading of a specialized motor vehicle with the assistance of its engine is still to be attributed to the operation of a vehicle in the meaning of the Road Traffic Act depends upon the answer to the question against what perils § 7 of the Road Traffic Act is to provide protection and whether the user of this ‘operative installation’ which led to the accident still falls within this range of protection. Naturally only such perils are involved which emanate from the motor vehicle in its capacity of an engine serving transport (see §§ 1, 2 of the Road Traffic Act). As soon as a connection no longer exists with the purpose of the motor vehicle as a means of transport in traffic, and the motor vehicle is only used as a means of performing work, the danger emanating specifically from a motor vehicle used for its natural purpose has ceased to exist. (See also the Reichsgericht [reference omitted], concentrating on the nature of a motor vehicle as a means of transport.) Since our legal system does not know a general principle of strict liability for operating engines supplying power at work, § 7 of the Road Traffic Act cannot be applied to accidents which occur in consequence of technical processes which cannot any longer be reasonably connected with the character of the engine employed as part of a motor vehicle. As this Division has already stated in its decision of 10 January 1961 [references] it is not decisive that the engine of the motor vehicle has been started up if this is done independently of an operational process characteristic of a motor vehicle for purposes other than moving it [reference]. In the case referred to, the engine of a moped served only to operate its lights which were required as a source of illumination for purposes other than to drive the moped (but see critically Boehmer [reference]).

In what circumstances the power of the engine and the operational installations of the vehicle driven by it have lost their connection with the latter’s function as a means of transport and with road traffic, with the result that from the point of view of legal liability only the function of the engines as a source of power is in issue, can only be determined in the individual case, having regard to all the circumstances. If, as in the present case, the engine is used for purposes of unloading, it will be decisive whether the damage was caused by the special construction of the vehicle and the operational installations connected therewith (as for instance in the case of discharging a load with the help of a tipping-device; see the decision of this Division of 25 April 1956 [reference] or in the case of a towing vehicle equipped with a crane or of a vehicle for transporting long loads which is provided with a grip [reference]) or whether its function as a source of working power was predominant, as for instance in the case of a mobile building-crane.

If the present case is examined in accordance with these principles it follows that it is not to be regarded as part of the operation of a motor vehicle if feed is blown into a silo with the engine of the motor vehicle running the compressor. The occurrence of damage is entirely independent, both technically and legally, of the specific peril emanating from a motor vehicle, be it even a specialized vehicle. Instead, the only peril is that flowing from the engine providing power for work, which is supplied by the engine of the motor vehicle. The damage thus caused does not come within the range of protection provided by § 7 of the Road Traffic Act.

(b) The traffic-orientated approach to the term ‘operation’ in § 7 of the Road Traffic Act does not lead to any different conclusion. It was developed for the protection of those involved in traffic in order to cover the after- effects of the perils created by a motor vehicle present in the area of public traffic, even if the motor vehicle which had been put ‘in operation’ had come to a standstill [reference]. A dangerous situation of this kind has not occurred in the present case. The motor vehicle was standing on private land belonging to the plaintiff and did not represent an obstacle for other users of the road in the place where it stood.

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