2. The appeal judgment does not withstand the arguments of the appeal in law which was lodged against rejection of the claim against the second defendant. This Senate cannot follow the appeal court's view that according to § 106 (3) alternative 3 of the SGB (Social Code) VII any possible duty by the second defendant, who was not present at the building site, to compensate for the injuries suffered by the claimant in the accident would be excluded.
a) Suppose that the appeal court's view that the building site on which the accident in question here has occurred was a joint workplace in the sense of § 106 (3) alternative 3 of the SGB VII (for an understanding of this concept, see [references omitted]) for the claimant and the second defendant is correct. The second defendant would still as the entrepreneur not be freed under § 106 (3) alternative 3 of the SGB VII from the claims directed against him under §§ 823, 831, 847 of the BGB for harm to the claimant's health. The privilege from liability does not in principle apply to the entrepreneurs involved.
aa) The unambiguous wording of § 106 (3) of the SGB VII, according to which §§ 104 and 105 of the SGB VII apply for the duty to compensate on the part of the "persons carrying out activities for the undertakings involved as between each of those persons" clearly expresses the legislative intention of limiting the privilege from liability to "persons carrying out activities" (references omitted). If the liability of the entrepreneurs was also to be limited as in § 104 (1) sentence 1 of the SGB VII (references omitted), the words "for the duty to compensate of the persons carrying out activities for the undertakings involved as between each of those persons" would have been superfluous (reference omitted). Contrary to the view of the reply to the appeal in law, the wording does not permit the entrepreneur to be understood as generally included in this concept as well, on the basis that he was always carrying out activities for the undertaking (reference omitted). It follows from the context as a whole that the description "the persons carrying out activities for the undertakings involved" in the third alternative of the provision was to refer to the insured persons who carried out the actual temporary business activities on joint business premises.
bb) Nor does it follow from the reference to §§ 104 and 105 of the SGB VII that the undertakings involved are to benefit from the release from liability (references omitted). The appeal in law correctly sees this as a reference to the rules made in §§ 104, 105 of the SGB VII for the type and scope of the privilege from liability and thus, for example, their exclusion in case of intention and road accidents, their extension to embryos and the credit provision of § 104 (3) of the SGB VII. Contrary to the view of the appeal in law, the reference to § 104 of the SGB VII would admittedly not have been needed because the prerequisites and legal consequences of the privilege from liability of the persons carrying out activities for the undertakings involved would have followed simply from the reference in § 105 (1) sentence 3 of the SGB VII. But no decisive significance can be attributed to this for determining the area of application of the privilege from liability. It is necessary to assume instead that it is a reference in general terms, found in other provisions as well (e.g. § 106 (4) of the SGB VII), to the legal consequences and exceptions which are regulated in the basic definitions of §§ 104 and 105 of the SGB VII, without more precise differentiation between the various paragraphs and sentences.
cc) Besides this, it is not evident from the history of the origin of the provision that its wording is based on a mere editorial oversight. Admittedly the first two cases of § 106 (3) of the SGB VII had already been contained in § 637 (2), (3) of the RVO (Reich Insurance Order) and can obviously be traced back to this. But according to these paragraphs the liability of the undertaking was limited in connection with § 636 of the RVO. The progress of the legislation gives no indication that this was to be altered. But neither can any ground be found for the further newly incorporated limitations in the cases of § 106 (3), 3rd case, of the SGB VII (reference omitted). The absence of such indications therefore does not allow the conclusion to be drawn that a change in the wording expressed had only occurred by mistake and had no significance in relation to content.
dd) Finally, the purpose of the norm does not require an interpretation going beyond the wording - an interpretation according to which even claims against the entrepreneur not carrying out activities on the joint business premises are limited. On the contrary the purpose of the norm suggests that only claims between those actually working together (see as to the prerequisites for joint business premises [references omitted]) are excluded as between each of those persons. In the present case, the considerations which argue in favour of the reciprocal release from liability of those insured by the statutory accident insurance do not apply.
(1) One ground for reciprocal release is the so-called financing argument. It means that the entrepreneur who already has to pay the contributions to the accident insurance of his employees is not to have any further liability beyond this. Such a situation does not exist in the cases in question here, in which an insured who has carried out business activities temporarily on joint business premises with persons carrying out activities for another undertaking, and has thereby suffered harm, claims compensation against the entrepreneur who is not connected with him. In these cases, the person harmed who has carried out a business activity for his own undertaking, is already under the protection of the accident insurance which has been set up by the contributions of his employer. The contributions of the other undertaking against which compensation is claimed do not as a rule contribute to this protection. Instead they provide for the social protection of the persons carrying out activities for his undertaking. The entrepreneur does not buy for himself his privilege from liability for the harm suffered by insured employees of other undertakings on the joint business premises with the contributions to the statutory accident insurance of his own employees (references omitted). It is true that the accident insurer obtains his contributions from the participating undertakings. But if privilege from liability applied, he would only have an option of recourse against the entrepreneur of the wrongdoer and his liability insurer in the case of intention or gross negligence in accordance with § 110 of the SGB VII. The option of refinancing his payments would therefore be largely lost. Besides this, the loss of claims to compensation for pain and suffering in the case of serious work accidents represents a substantial disadvantage for the victim (reference omitted). It is not justified simply because the discussion of difficult questions of liability may thereby be avoided and the statutory obligation of accident insurance applies to the entrepreneur in respect of his employees. The entrepreneur is liable to the employees of others for his own fault, and yet the statutory accident insurance does not cover this risk.
(2) The further argument that a dispute in court between members of the business amongst themselves or between the employee and his employer is prevented by the exclusion of liability, and industrial peace is thereby preserved (reference omitted) fails at the outset for cases of the present kind. It is not in fact a question of the victim's claims to compensation against a work colleague or against his own employer, but against an entrepreneur other than his own. As the persons carrying out the activities are only temporarily employed on joint business premises, the argument about industrial peace does not justify limitation of the victim's claims.
(3) Nor can the so-called community of danger (Gefahrgemeinschaft) (which in principle represents the justification for the privilege from liability of the persons carrying out activities on joint business premises) justify the general granting of privilege to the entrepreneur under § 106 (3) alternative 3 of the SGB VII (reference omitted). It means that the party who as wrongdoer profits from the limitation of liability can be expected to accept as a victim the corresponding disadvantages (reference omitted). This concept admittedly takes effect in the interpretation applied by the Senate in the typical cases of temporary business activity on joint business premises (references omitted). As with an activity in the same business (§ 105 of the SGB VII), frequent situations will arise in this connection in which the persons carrying out activities there can become wrongdoers or victims. The parties carrying out activities therefore form a community of danger. But a party who is not carrying out activities on the joint business premises has no part in this.
(4) Account must be taken in interpreting § 106 (3) alternative 3 of the SGB VII of the appeal court's fear that if the independent small-scale entrepreneur was liable in connection with his own activity on joint business premises, and yet the employees carrying out activities with him were privileged in respect of their liability, this would amount to unjustified unequal treatment. On the basis of the wording of this norm, the entrepreneur can be included in the privilege from liability as well, if he himself was carrying out activities at the joint business premises and the insured from the other undertaking has suffered harm as a result...
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