About 9 p.m. on 5 September 1952 the plaintiff was riding his moped out of town on V. St. He crossed the intersection with I. St., and was about to pass the E. gas station on his right when the defendant E. drove out of the gas station in his Opel Olympia 1937 and turned right into V. St. in front of him. In overtaking E.s car, the plaintiff got between the tramlines in the middle of the highway. He overtook E.s car but had not yet regained the right hand side of the road when he collided head-on with B.s Mercedes 170S, 22 metres before the intersection with E. St. The plaintiff suffered serious injuries in the collision, and his left leg had to be amputated.
The plaintiff asserts that E. came out of the gas station right in front of him, so that he was forced to overtake. In doing so the plaintiff had to get between the sets of tramlines in the middle of the road, because E.s left hand wheels were over the right hand tram lines by reason of cars parked on the right hand side of the road. The plaintiff took some time to overtake because E. accelerated as he was doing so, and he was therefore unable to regain the right hand side of the road in due time. The defendant B. had also crossed the tramlines while overtaking a car in front of him, and would have seen the plaintiff if he had been paying proper attention.
The plaintiff claims compensation from the defendants for one-half of the damage he suffered, and the defendants answer that the accident was entirely due to the plaintiffs fault.
The Landgericht dismissed the claim against E., and granted the claim against B. as to one-fifth of the total damage.
On appeal by the plaintiff and B., the Oberlandesgericht held that both defendants were liable under the Strassenverkehrsgesetz (StVG) for two-fifths of the total harm, and that the defendant B. was also liable under the Civil Code (BGB) for two-fifths of the amount claimed by the plaintiff.
The defendants appeals were allowed in part, the Bundesgerichtshof holding that while each defendant was liable for one-fifth of the total damage, they were not together liable for more than one-third.
The Court of Appeal was right to hold that the defendant E. was liable for one-fifth of the plaintiffs total damage, so E.s appeal on this point must be dismissed. B.s appeal equally fails in so far as it argues that he is not liable at all.
The Court of Appeal then added together the two liabilities for one-fifth each, and consequently held the defendants jointly liable for two-fifths of the total harm (four-fifths of the amount actually claimed by the plaintiff, for he claimed for only one-half of his harm). The defendants are right to object to this.
1. The Court of Appeal was right to start out by weighing the plaintiffs contributory fault against each of the defendants separately, and correctly applied § 254 BGB first as between the plaintiff and E., and then as between the plaintiff and B. This separate apportionment is necessary because the plaintiff has an independent claim for compensation against each defendant. Each defendant is responsible for providing an adequate cause of the harm, and has thereby met the conditions of statutory liability (§ 823 BGB, §§ 7, 18 StVG). Had the plaintiff sued only one of the defendants, he could claim only one-fifth of his total damage (= two-fifths of the sum actually claimed). The fact that he sued both defendants in one suit does not justify an apportionment under § 254 BGB on the basis that the responsibility of the two defendants should be treated as a unit and compared as such with that of the plaintiff.
Where several persons have caused harm, there is only one case where it is right to combine their spheres of responsibility and thus make each responsible for the contribution to the harm made by the others, and that is when the requirements of § 830 I, 1 BGB are met, namely that the various persons causing the harm caused it by means of a wrongful act committed jointly. There is no question of that here. Indeed, it may be that this provision is inapplicable on the mere ground that whereas E. was guilty of an unlawful act in the sense of § 823 BGB, B. was liable only on the basis of the strict liability in §§ 11, 18 StVG. Be that as it may, there was here no act jointly committed by the defendants. True though it is that together they produced the harmful result, this was through different independent individual acts, not through a common act. To several acts of negligence of this kind (fahrlässige Nebentäterschaft), § 830 I, 1 BGB is not to be applied [reference omitted]. If in RGZ 58, 357 the Reichsgericht indicated otherwise, this court cannot agree. When the harm has been caused by the concurrence of several individual acts, the fact that these acts may coincide closely in time and place does not justify an apportionment which burdens each debtor with the contributions of the others. Nor did the Reichsgericht itself hold that when several drivers had caused an accident by various independent acts of bad driving they were joint actors (Mittäter) in the sense of § 830 I, 1 BGB.
2. The Court of Appeal believed that § 840 BGB empowered them to add together the portions of the harm, namely one-fifth each, for which the defendants were responsible. In this they failed to see that since under § 840 I BGB the debtors obligations must coincide before there can be a relationship of common debt, the defendants could be common debtors only in respect of one-fifth of the plaintiffs harm. In contrast with § 830 I BGB, there is here no legal basis for treating the contributions of the two defendants as a unit imputable to both and opposing it to the plaintiffs quota of responsibility. Such a solution is irreconcilable with the recognised principles concerning the factors relevant to an apportionment under § 254 BGB. It would improperly extend the limits within which the law of tort allows the imputation to one person of another persons fault. And it is inequitable because each of several defendants would bear the risk of the insolvency of the others, whereas the plaintiff would not be exposed to this risk at all, even though he was equally to blame, if not more so.
3. According to the decisions of the Reichsgericht and those of the Bundesgerichtshof hitherto (BGHZ 12, 213, 220; VersR 1957, 167), several tortfeasors whose liability as a result of the individual weighing process is equal in amount (as with the defendants here, one-fifth each) are liable for that amount as common debtors under § 840 BGB, and the plaintiff must bear the remainder of the loss himself. This is an unsatisfactory solution, because it gives the victim less than he should, if one views the accident as a whole, recover. The example given by Dunz in JZ 1955, 727 makes this quite clear. If ten people, all equally at fault, cause damage to an eleventh, the victim can claim the full amount of his loss from any of the ten. But if one of the ten who are equally careless is himself the victim, the result of the individual weighing is that each of those causing the harm is liable to the plaintiff for half of his harm. If we apply the rule of common debtors as the courts have done until now, the victim recovers only half of his harm altogether whereas, if all the debtors are solvent, he should get nine-tenths. On the other side, the effect of contribution proceedings would be that each person causing the harm would pay only one-eighteenth of it.
The main reason for the unsatisfactory nature of the law hitherto applied in such cases is that the rules of common debt have been applied too soon and too formalistically. Of course § 840 I BGBapplies in the case of several as well as joint tortfeasors (see BGHZ 17, 214). This makes for no difficulty if the several tortfeasors are each liable for the whole harm, for then we have the situation which is characteristic of a common debt, namely that performance by any one debtor satisfies the whole of the creditors interest. But this identity of the content of performance is lacking to some extent if the victim is himself guilty of contributory fault so that his damages claims against the several tortfeasors fall to be reduced under § 254 BGB. It is also lacking in the case before us today, for the one-fifth for which E. is liable as a result of the individual apportionment is neither economically nor legally identical with the one-fifth of the harm which B. has to pay. Payment of one of these two parts of the harm does not give the victim of the accident all he ought to get from E. and B. together. This is the second reason for the unsatisfactory nature of the law applied until now: the traditional comparison of the contribution of the victim with that of each individual causing the harm fails to give a global view of the accident and leads to a division of the loss which, on a global view, is unsatisfactory.
4. It might seem that one could equitably deal with the consequences of an accident by dividing the harm between the parties involved in the occurrence of the harm in relation to their respective contributions to it, and burdening each only with the appropriate portion of the harm he has caused. In support of such a view one might adduce the idea that all those involved in an accident, including the responsible victim (§ 254 BGB, §§ 7, 17, 18 StVG), form a kind of community, entailing a duty to resolve it so that no member has to bear more of the loss than is appropriate under § 17 StVG or § 254 BGB. Such a method brings the apportionment of the loss between the various persons who caused it (the inner or contribution relationship) into the suit brought by the victim against any or all of the persons causing the harm (external liability). There are several reasons which render this unacceptable.
There is no statutory basis for such apportionment proceedings. In admiralty law, indeed, there is such a rule (§ 736 HGB): if a collision between two or more vessels results from the fault of the crews involved, the owners of these ships are only liable in proportion to the gravity of their respective faults, at any rate so far as concerns damage to the ships themselves or to property on board, personal injury being dealt with otherwise. Here, several liability is introduced in lieu of joint liability, and the division between external liability and internal contribution which the law has maintained for good reason in other areas is abolished. But § 736 I HGB only applies in this particular area of admiralty law: it cannot be applied to the law of road traffic or to the general law of tort. Certainly nothing in § 17 StVG would justify abandoning the distinction between external liability and internal contribution in the case of a collision between motor-cars and making the drivers and custodians involved in the accident liable to the victim only for their several parts (see also BGHZ 15, 123, 135). Several liability such as is exceptionally provided for by § 736 I HGB would often be detrimental to the victim, for it would deprive him of the security and advantages offered to him by the principle of joint liability and by the separation of external liability and internal contribution. To take Dunzs example once again, if several liability existed, the plaintiff could recover only one-tenth of his harm from each person causing it; yet each of them had provided an adequate cause for the harm and was, in relation to the plaintiff, as much to blame for it as the plaintiff himself, so it would seem right to give him a claim for half his harm against each individual causing it. Finally, several liability would greatly complicate the trial of many tort cases. Very frequently, the victim does not sue all those liable for the harm resulting from an accident; to minimise the risk, he often sues only the person whose liability can most easily be established. Now if the principle of several liability applied, one could only decide how much the defendant must pay by ascertaining the extent to which all the other persons responsible for the accident were to blame and contributed to it as a matter of causation. Thus in every traffic accident case, one would have to ask whether anyone not in court might be liable for the harm, though any such determination would lack the force of res judicata against such a person. Wide-ranging enquiries would often be necessary although the actual issue was quite simple. To complicate matters like this would conflict with the policy of the Code, especially § 421 BGB, to assist the victim, even when he, too, is at fault, for it is in the victims interests to limit the issues in trial and to make a quick decision possible.
For all these reasons the principle of several liability does not provide a solution.
5. Solutions are suggested by Dunz (JZ 1955, 727 and 1957, 371) and Engelhardt (JZ 1957, 369) but as Dunz himself admits in his second article, they are not ideal.
6. In order to achieve a satisfactory result one must somehow harmonise the principle of common debt (joint liability) with the principle of apportionment of § 254 BGB (§ 17 StVG) and combine the individual apportionment with a global apportionment achieved by looking at the accident as a whole. An example may make this clear. Suppose that A is injured in an accident due to his own carelessness and the careless driving of B and C. If the contribution of all three parties is equal, and the damage suffered by A amounts to DM 3,000, the individual apportionment will be that As contribution to the accident is equal to that of B (1:1). A may therefore claim DM 1,500 from B. The same applies as between A and C. Now if A claims damages from B and C together, one must follow this individual apportionment by taking a global view of the accident, and asking how much each of them contributed to it. Since from this point of view A, B and C are each responsible for one-third, A should have to bear only one-third of his harm (DM 1,000) and should be able to claim a total of two-thirds (DM 2,000) from the others. The results of these two processes of apportionment (the individual and the global) leads to the conclusion that: B and C together must pay A a total of DM 2,000, but neither of them need pay more than DM 1,500, or, to put it another way: A may claim DM 1,500 from B, and he may claim DM 1,500 from C, but he may not claim more than DM 2,000 in all. The question of contribution between B and C remains a matter of their relationship inter se. If B has paid A the DM 1,500 he owes him, then C owes B DM 500 as contribution under § 17 StVG. C remains liable to A, but only for DM 500, since A has already received DM 1,500 from B.
While maintaining the legal structure of joint liability, this solution accommodates it to the particularities of the law of tort liability arising from the principle of apportionment of § 254 BGB and related provisions, and the solution is a just one in that all those involved in an accident bear the loss in a measure which reflects their responsibility for it. By linking individual and global apportionment, it avoids the disadvantages to which the victim has hitherto been exposed when claiming damages from several defendants (hitherto A has obtained judgment for DM 1,500 against B and C as common debtors, and had to bear half his loss himself). On the other hand, the individual apportionment ensures that no person causing the harm pays more to the victim than is fair in view of their relationship inter se (B pays A here DM 1,500, and so does C). So far as these debts overlap, the victim has the security and other advantages which the principle of joint liability is designed to give him (§§ 840, 421 BGB).
The step of making the global apportionment and ascertaining the respective quotas of harm is naturally only to be taken when the victim sues several persons at the same time, or if there are successive suits.
7. We can now apply these principles to the case in hand, taking the individual apportionments made by the Court of Appeal as correct in law. Here as between plaintiff and E. the total harm must be divided in the proportion 4:1, and likewise, under the StVG, in the same proportion of 4:1 as between the plaintiff and B. Taking the global view next, as we must, the harm must be divided between the three parties involved so that the proportion of the harm borne by the two defendants remains the same and that on the other hand the proportion of four to one is maintained both in the relationship between the plaintiff and E., and in the relationship between the plaintiff and B. It follows that the global apportionment must be in the ratio 4:1:1. This means that the plaintiff is responsible for four-sixths (= two-thirds) and the defendants are each responsible for one-sixth. In the end result, the plaintiff will have to bear two-thirds of the total loss, and the defendants must make good one-third, though each defendant is liable only for one-fifth of the harm and B. is liable only under the StVG. The plaintiffs claim being limited to half of his total harm, the end result is that his claim succeeds against E. for two-fifths and against B. for two-fifths under the StVG, subject to this, that the total sum he may recover from both is not to exceed two-thirds of the sum he has claimed.
Notes to the Road Traffic Act
1. Traffic accidents represent a major area of accident compensation; arguably, they have also presented traditional tort law with its major challenge. The result was inevitable: revealing empirical studies, a vast literature, and numerous proposals for reform. Comparing the German law with other systems of compensation (whether in existence or merely proposed) makes it look both pioneering and in need of further reform. But change is hard to achieve and the role of a reformer is rarely a happy one. In some countries such as the USA no-fault statutory schemes have been challenged on constitutional grounds. See, for example, Kluger v. White 281 So. 2d 1 (Fla. 1973); Lasky v. State Farm Insurance Co. 296 So. 2d 9 (Fla. 1974). In other countries, like France for example, proposals for reform have met with strenuous if not at times undignified reactions on the part of various specialized pressure groups (insurers, practising lawyers).
2. Any comparative summary of such a topic is bound to be incomplete if not misleading. The decision was thus taken to depart from the pattern adopted throughout this book. Instead of comparing German law with Common law, the reader is invited to look at an imaginative French proposal and then compare it with German law and his own law.
3. The French proposal can be best understood by looking at the French legal background and discovering its own deficiencies. Good brief accounts of this can be found in von Mehren and Gordleys The Civil Law System, ch.9, (2nd ed. 1979), and Lawson and Markesinis, Tortious Liability for Unintentional Harm in the Common Law and the Civil Law, ch. 3. Professor Tuncthe author of the proposed French Billhas also provided more detailed accounts in 31 Am. J. Comp. Law 489 (1983) and in 16 Rev. Jur. Uni. Interam. Puerto Rico 125 (1981). André Tunc is also responsible for a masterly comparative account of the subject in vol. XI, ch. 14 of the International Encyclopedia of Comparative Law. The literature in French on the Tunc proposals is enormous. One of the most recent and interesting collections of essays on the proposed Bill have been published under the editorship of Tunc under the title Pour une loi sur les accidents de la circulation (1981). The reader is invited to compare Tuncs proposals (Addendum 1) with (a) the Desmares decision and (b) the 1985 Act (Addendum 2). The difficulties caused by some of the Acts terms (particularly the words faute inexcusable) have given rise to much case-law reviewed by Margeat, Landel, Thiry, and Besson, Accidents de la circulation: Loi du 5 juillet 1985Bilan et perspectives, published in 1988 by the Gazette du Palais.
A BILL CONCERNING THE COMPENSATION OF VICTIMS OF ROAD
TRAFFIC ACCIDENTS, PROPOSED BY ANDRÉ TUNC
Part I. Obligation to insure
Every owner or possessor of a motorized vehicle must, before putting it into circulation, take out an insurance policy covering, according to the provisions of the present law and despite all contrary clauses, the damages that may result from a road traffic accident in which the said vehicle is involved.
For the purposes of the present law, the word vehicle denotes a motorized land vehicle, its trailer, or semi-trailer and their load; any vehicle not immobilized in a private garage is considered to be in circulation.
For the purposes of the present law, public bodies exempted from the obligation to insure their vehicles, will assume with regard to their vehicles the rights and obligations of an insurance company.
Part II. Corporeal damage
Every victim of personal injury, resulting from a road traffic accident in which a vehicle has participated, has the right to be compensated in accordance with the provisions of articles 312, below.
The victim has a right to be reimbursed for all expenses reasonably incurred as a result of the injury, whether for care, rehabilitation, aid, special equipment for or adaptation of the home, travelling expenses for members of the family, repair or replacement of clothes, or items worn at the time of the accident and damaged as a result of the latter.
The victim has the right to be compensated for loss of salary or professional earnings resulting from a temporary disablement.
If the victim is permanently disabled, he has the right:
(a) to be compensated for the loss of salary or professional earnings which would arise from the normal course of events concerning a person in the same position as himself;
(b) to compensation for purely physiological harm in accordance with a table taking into account the degree of his disablement and his agethis table, and also the medical scale used to calculate the degree of his disablement, to be established by Decree.
Loss of salary or professional earnings in the sense of articles 4 and 5, above, should be taken to mean only the actual loss not compensated by employers contributions, social security, or any other organization for social welfare.
Compensation will only be paid for loss of salary and professional earnings not exceeding x times the index-linked minimum wage.
When the permanent disability of the victim entails the loss of salary or professional earnings of at least 30 per cent, compensation of this loss will take the form of an index-linked annuity in accordance with the provisions of the law of 27 December 1974, and will be reviewed as the victims physical condition develops.
This annuity will be liable to be reduced should the beneficiary refuse without valid reason a measure of examination, observation, treatment, or adjustment reasonably suggested by the insurance company.
It will not be subject to attachment any more than would have been the salary or professional earnings it is meant to replace.
When the victim dies as a result of the accident, his heirs and next of kin are entitled to be reimbursed for expenses which they must reasonably have incurred as a result of the accident. The persons who paid the funeral expenses are entitled to be reimbursed.
The persons who as the result of the victims death are deprived of (financial) assistance which they were receiving or could reasonably have expected to receive from him are entitled to compensation within the limits provided by article 7 of the present law. This compensation will take the form of an index-linked annuity in accordance with the provisions of the law of 27 December 1974.
The obligation to pay the compensation envisaged in articles 310 of the present law falls upon:
(a) the insurer of the vehicle in which the killed or injured victim was being transported or,
(b) if the victim was not being transported [in a vehicle], the insurer of the vehicle which participated in the accident.
When more than one vehicle has participated in the accident, each insurer will be obliged to compensate the victim (to the full extent), the cost of the damages to be divided either in equal parts or in proportions to be agreed amongst them.
When a stolen vehicle has participated in an accident, the thief and the handler of the stolen car forfeit all rights to compensation under the present law.
Part III. Material damage
Damage suffered by colliding vehicles is compensated in accordance with percentages determined by types of circumstance fixed by Decree. The same Decree will specify the elements of compensatable loss.
Damage occasioned to goods carried in or on vehicles will only be compensated in cases of collision with or transport by professional carriers and then only within the limits laid down by Decree, subject to any more extensive compensation envisaged by the contract of insurance.
All other material damage caused by a vehicle (to a furnished building) must be compensated.
Part IV. Miscellaneous provisions
The rights provided for by the law exclude all other rights of compensation resulting from a road traffic accident with the exception of the following:
(1) the victim has a right to seek further compensation in accordance with the ordinary rules of civil liability against the manufacturer, seller, or repairer of the vehicle;
(2) the insurer, obliged to pay compensation under the provisions of this law, is entitled to be subrogated against:
(a) any person who intentionally caused a type of damage covered by this law;
(b) the manufacturer, seller or repairer of the vehicle, responsible under the ordinary rules of civil liability;
(c) the highway authorities under the ordinary rules of civil liability. These subrogation rights will be for lump sums even where the compensation is to be paid in the form of an annuity.
Whenever a person is, because of his involvement in an accident, condemned to imprisonment of . . . [a certain period] the criminal court can order as an additional penalty the payment of a sum not exceeding 50,000 fr. to be made to the Fonds de Garantie.
The courts cannot be seized of a dispute arising from the application of this law until it has been submitted to a Commission for Reconciliation, the membership and functions of which will be decided by Decree.
The actions of personal injury and property damage are statute-barred in three months and one year respectively from the moment the victim becomes aware of the damage.
The premium to be paid by the insured will be adjusted every twelve months depending on the number of accidents in which the vehicle has participated. A Decree will regulate such details as no-claims bonuses and upward adjustments of premiums.
Law no. 85-677 of 5 July 1985
Aiming at the improvement of the position of victims of traffic accidents and the acceleration of the compensation process. (JO of 6 July 1985, 7584.)
Chapter 1. Compensation of traffic accident victims
The provisions of the present chapter apply to victims of traffic accidents, whether transported by virtue of contract or not, involving (impliqué) a land motorized vehicle as well as trailers and half-trailers with the exception of trains and trams running on fixed rails.
Section 1. Provisions relating to compensation.
The driver or guardian of a vehicle mentioned in article 1 above cannot plead against victims, including drivers, [the defence] of force majeure or act of a third party.
Victims, excluding the drivers of motorized land vehicles, are compensated for damage resulting from injuries to their person without it being possible to invoke against them their own fault with the exception of their inexcusable fault [negligence] in so far as it was the exclusive cause of the accident.
The victims designated in the preceding sub-paragraph, whenever they are below the age of sixteen or over that of seventy, or whenever, irrespective of their age, they have at the time of the accident been recognized as suffering from a permanent incapacity or invalidity of at least 80 per cent, will in all cases be compensated for damages suffered as a result of personal injuries.
However, in the cases envisaged in the preceding sub-paragraphs, the victim will not be compensated by the tortfeasor for harm resulting to his person when he voluntarily sought the damage that he suffered.
The fault committed by the driver of a motorized land vehicle has the effect of limiting or excluding the compensation of the damages that he has suffered.
The victims [contributory] fault results in the exclusion or limitation of his compensation for damage suffered by his property. However, compensation for supplies and equipment provided on medical prescription is made in accordance with the rules applicable to compensation for personal injury.
Wherever the driver of the motorized land vehicle is not its owner, the fault of such driver can be opposed against the owner for compensation of damages caused to his vehicle. In such cases the owner has a right to sue the driver.
The loss suffered by a third party as a result of the damage caused to the direct victim of the traffic accident is made good by taking into account the limitations or exclusions applicable to the compensation of such damage.
Section 2. Provisions relating to insurance and fonds de garantie.
Articles 711 contain amendments and conditions to the Code of Insurance.
Section 3. Concerning the offer to pay compensation.
The insurer who guarantees the civil liability resulting from a motorized land vehicle is bound, within a maximum period of eight months from the date of the accident, to make an offer of compensation to the injured victim. In the event of death of the victim, the offer is made to his heirs and, where appropriate, the spouse.
The offer must also be made to the other victim within a period of eight months reckoning from the date of the request for compensation.
The offer includes all compensatable headings of damage including the elements relating to property damage whenever they have not been the object of preliminary settlement.
They may be of a provisional nature whenever the insurer has not, within three months of the accident, been informed of the stabilization of the state of the victims [health]. The definitive offer for compensation must in this case be made within five months of the insurer being informed of such stabilization.
In the case of plurality of vehicles, and if there are many insurers, the offer is made by the insurer authorized by the others.
The preceding provisions are not applicable to victims to whom the accident caused only property damage.
On the occasion of his first correspondence with the victim, the insurer is bound [subject to] relative nullity of any agreement that might be reached [result] to inform the victim that he can obtain through a simple request a copy of the report of the police enquiry and to remind him that he may obtain the assistance of a lawyer and, in the case of a medical examination, [the assistance] of a doctor.
Under the threat of the same penalty, the above-mentioned correspondence must inform the victim of the provision of sub-paragraph 4 of article 12 and of article 15 [of this law].
When the insurer could not, without fault on his part, have known that the accident had occasioned disbursements to the paying third parties envisaged in articles 29 and 33 of the present law, these [third parties] lose all rights of reimbursement against the insurer and the author of the damage. However, the insurer cannot invoke such ignorance vis-à-vis organizations that make social security payments.
In all cases, failure to produce the claims of paying third parties, within a period of four months from the moment of the request made by the insurer, will entail the forfeiture of their rights against the insurer and the author of the damages.
In the case where the demand that emanates from the insurer does not mention the stabilization of the victims health, the claims made by the paying third parties may have a provisional character.
Whenever, through the conduct of the victim, the paying third parties have not been able to assert their claims against the insurer, they will have a right of recourse against the victim to the extent of the indemnity he has received from the insurer under the same heading of damages and within the limits provided for by article 31. They must act within a period of two years from the demand of payment.
When the offer has not been made within the period allowed by article 12, the amount of compensation offered to the victim by the insurer or granted to him by the judge, automatically attracts interest at double the rate of the legal interest from the moment of expiry of the permissible period up until the moment when the offer or the judgment becomes definitive. This penalty can be reduced by the judge because of circumstances not attributable to the insurer.
If the judge who determines the compensation is of the view that the offer made by the insurer is manifestly insufficient, he will, of his own initiative, condemn the insurer to transfer to the fonds de garantie envisaged by article 420-1 of the Code of Insurance a sum of at [most] 15 per cent of the compensation awarded [by the court] without prejudice to any damages and interest due to the victim for this conduct.
The insurer must submit to the juge des tutelles or the conseil de familledepending on which of the two is appropriateall proposals of settlement concerning minors or adults subject to guardianship [tutelle]. Similarly, he must give informal notice to the juge des tutelles, at least fifteen days in advance of the payment of the first instalment of an annuity or of any sum due to be paid as compensation to the legal representative of the protected person.
Any payment which has not been preceded by the requisite notice or any unauthorized transaction can be annulled at the request of any interested party or one of the ministère public but not of the insurer.
Any clause by which the legal representative of a minor or of an adult subject to guardianship, guarantees the ratification [by the said persons] of the acts mentioned in the first sub-paragraph of this article is void.
The victim may, by means of a registered letter accompanied by a request for its receipt, denounce the settlement within fifteen days of its conclusion.
Any provision in the settlement that deprives the victim of this right is void.
The above-mentioned provisions reproduced very clearly in the offer proposing a settlement and in the settlement itself [at the risk of] relative nullity of the latter.
Payment of the agreed sums must take place within one month from the expiry of the period within which denunciation is permitted according to article 19. Sums not paid will automatically [produce] interest at 50 per cent above the legal rate for the first two months [of the delay] and twice the legal amount for any period thereafter.
In the event of payment being ordered by the court (even by a provisional decision)* the rate of legal interest is increased by 50 per cent after the expiry of two months and it is doubled after the expiry of four months counting from the day when the decision was made whenever the case was contested. In all other cases [time runs] from the day on which the decision was notified [to the defaulting party].
The victim can, within the period provided for by article 2270-1 of the Civil Code, demand from the insurer compensation for the increase of the damage he has suffered.
Whenever the insurer invokes an exception of legal or contractual guarantee, he is bound to comply with the provisions of articles 12 to 20 on account of the party concerned; the resulting settlement can be contested before the judge by the person on whose account it was made without challenging the amount of money allocated to the victim or those deriving rights from him.
For the purposes of articles 12 to 20, the State and all public entities, enterprises or organizations not obliged to carry insurance or having by virtue of article 211-3 of the same Code obtained [a waiver from the duty to take out insurance] are assimilated to an insurer.
The provisions of articles 12 and 13 to 22 are applicable to the fonds de garantie in its relations with the victim and those deriving rights from him. However, the times provided for in article 12 run against le fonds from the day when it has received information justifying its intervention. The application of articles 16 and 17 are not obstacles to the [specific] provisions that cover actions against the fond. Whenever the fonds de garantie is bound to pay the interest provided for by article 17, this is payable to the Treasury.
Under the control of public authority a periodic publication will provide an account of the amounts of compensation awarded by the courts or agreed upon as a result of private settlements.
A degree of the Council of the State will fix the necessary measures for the application of this section. In particular it will list the causes of suspension and prorogation of the delays mentioned in article 12 as well as the reciprocal information that must be supplied by insurer, victim and paying third parties.
4. Strict Liability Act 1978
(Haftpflichtgesetz) of 4 January 1978
(BGBl. I, 145as amended)
§ 1. Liability of the entrepreneur
(1) If in the conduct of a railway or cable-way a human being is killed or suffers injury to body or health or a thing is damaged, the entrepreneur [the undertaking] is bound to make good to the injured party the damage arising therefrom.
(2) The duty to make good is excluded if the accident was caused by force majeure. Nevertheless in so far as the railway was operated within the travelled portion of a public highway, the duty to make good is excluded if the accident was caused by an unavoidable event which is due neither to a defect in the condition of the vehicle or lay-out of the railway nor to a failure of its management. An event is deemed to be unavoidable in particular when it is traceable to the conduct of the injured party or of a third person not concerned in the undertaking or of an animal and both the entrepreneur and the persons engaged in the undertaking observed the care required of them by the circumstances of the case.
(3) The duty to make good is also excluded if:
1. an object accepted for safekeeping is damaged;
2. an object being transported is damaged, unless a passenger is wearing or carrying it with him.
§ 2. Liability of the proprietor of an energy establishment
(1) If a human being is killed or suffers injury to body or health or an object is damaged through the operation of electricity, gas, steam, or current escaping from a cable or pipeline or a plant for the provision of such energy or material, the proprietor of the plant is bound to make good the damage arising therefrom. The same applies if the damage, without being due to the operation of the electricity, gas, steam or current, is traceable to the existence of such plants, unless they were in a proper state when the damage was caused. A plant is in a proper state as long as it conforms to the recognized technical rules and is intact.
(2) Subsection 1 does not apply to plants which serve only for the transmission of signs or sounds.
(3) The duty to make good under subsection 1 is excluded:
1. if the damage occurred inside a building and is traceable to a plant discoverable therein (subsection 1) or if it occurred inside a plot in the possession of the proprietor of the plant;
2. if the damage was caused by force majeure, unless it is traceable to fall of cable wires.
§ 3. Liability of other entrepreneurs
Anyone who operates a mine, quarry, pit, or factory is liable to compensation if an authorized agent or representative or anyone employed in the direction or supervision of the undertaking or of the workmen causes by a fault in the carrying out of the service arrangement, death or bodily injury to a human being.
§ 4. Contributory fault
If a fault of the injured party contributed to the occurrence of the damage § 254 BGB applies; where an object is damaged, the fault of the person who exercises the factual control over it is equivalent to the fault of the injured party.
§ 5. Extent of the compensation for death
(1) In the case of death, compensation must be made by making good the cost of the attempted cure as well as of the pecuniary damage which the deceased has suffered therefrom by having his earning capacity destroyed or diminished during the illness, or by having his personal needs increased. The person bound to make compensation must also make good the funeral expenses to the person who is under a duty to bear those expenses.
(2) If the deceased at the time of the injury stood to a third party in a relation by virtue of which he was, or could have become under a statutory duty of maintenance, and if the third party is deprived of the right to maintenance as a result of the death, the person bound to make compensation must compensate the third party for the period of the deceaseds presumed life expectancy. The duty of compensation arises also if the third party at the time of the injury was conceived but not yet born.
§ 6. Extent of the compensation for bodily injury
In case of bodily injury, the compensation (§§ 1, 2, and 3) must be made by making good the cost of cure as well as the pecuniary damage which the injured party suffers by having his earning capacity temporarily or permanently destroyed or diminished or by having his personal needs increased by reason of the injury.
§ 7. Compulsory law
The duty of compensation under §§ 13 of this Act may not, in so far as personal injury is concerned, be either excluded or restricted for the future. The same applies to the duty of compensation under § 2 of this statute to damage to objects, unless the exclusion or restriction of liability has been agreed to between the proprietor of the plant and a public corporation or fund or a businessman by the terms of a contract relating to the conduct of his business. Provisions and agreements to the contrary are void.
§ 8. Money annuity or lump sum settlement
(1) Compensation for destruction or diminution of any earning capacity and for increase in the personal needs of the injured person as well as compensation to be paid to a third party under § 3 II is due only for future losses and payments must take the form of an annuity.
(2) The provisions of §§ 843 IIIV BGB apply mutatis mutandis.
(3) If in the sentencing of the person bound to pay a money annuity no decision is made as to the provision of security, the person entitled to compensation can nevertheless demand that such security be provided if the financial status of the person bound to pay it has appreciably worsened; in similar circumstances, he can demand an increase in the security fixed by the judgment.
§ 9. Limit of liability
The entrepreneur or the proprietor of the plant indicated in § 2 is liable in cases under § 8 I only up to an annuity of DM 30,000 for each person killed or injured.
§ 10. Limit of liability for damage to objects by energy plants
(1) The entrepreneur or the proprietor of a plant listed in § 2 is liable for property damage only up to the sum of DM 100,000, even if several objects are damaged by the same event.
(2) If, by reason of the same event, compensation is payable to several persons, which together exceeds the highest permissible sum of DM 100,000, the individual awards are reduced in the proportion to which their total sum stands to the highest permissible sum.
§ 11. Prescription
With regard to prescription the provisions of the BGB applicable to unlawful acts apply mutatis mutandis.
§ 12. Further liabilities
Statutory provisions remain unaffected according to which a person bound to make compensation is liable to a greater extent than under the provisions of this Act or another person is responsible for the damage.
§ 13. Several persons liable
(1) If several persons are bound to make good property damage to a third person, as regards the mutual relations of those bound to make compensation, the duty to compensate and its extent depend on the circumstances, and in particular on how far the damage was caused by one or the other. The same applies if the damage occurred to one of those bound to compensate, to the liability that attaches to another of them.
(2) Subsection (1) applies mutatis mutandis where, along with those bound to compensate under §§ 1 and 2, another person is legally responsible for the damage.
§ 14. Optional jurisdiction
Actions based on these provisions may also be brought in the court, in whose district the event causing damage took place.
This page last updated Thursday, 01-Dec-2005 11:04:42 CST. Copyright 2007. All rights reserved.