Facts:

The claimant demands from the defendants compensation for pain and suffering for injuries which she suffered in a road traffic accident on the 17th July 1989. The first defendant ("the defendant") who was then 21, turned to the right in his car, which was insured with the second defendant against third party liability. As he did so, he lost control of the vehicle, veered on to the opposite side of the road and struck the claimant, who was then 18 years old, who was coming towards him on a bicycle. She suffered severe injuries in the accident to, amongst other things, her head and legs. She was treated in hospital until the 16th September 1989, and was incapable of work until the middle of February 1990. As a result of her injuries she could neither squat nor kneel, her hearing was impaired and her capacity to work was reduced to 20%. She receives incapacity benefit as well as state education grants. Her training course was extended by half a year as a result of the accident. She is at the moment unemployed and intends to pursue an alternative career because of the consequences of the accident. The claimant's material harm was dealt with under the Road Traffic Act and fully compensated. The defendants have refused payment of compensation for pain and suffering, claiming that the defendant was incapable of committing a tort at the time of the accident.

The lower courts rejected the claim. The claimant's appeal in law (which is admissible) led to quashing of the decision and reference back.

Reasons:

I. The appeal court denies that there is a claim under §§ 823 (1) and 847 of the BGB because the defendant was, at the time of the accident, in a condition which excluded the free exercise of his will (§ 827). In the court's view, the expert Dr B had convincingly explained that the defendant had gradually developed a convulsive disorder which led for the first time to an epileptic semi-conscious state, over which the defendant had no control when it started to occur, during the journey on the 17th July 1989. There were no grounds for saying there was any other cause of the accident. The defendant was also not to blame for the fact that he had not attached any special importance to headaches and disturbances of concentration which had occurred before the accident, after no indications had come to light of a disturbance of the functioning of the brain on an examination by a medical specialist.

According to the appeal court's view, liability on the grounds of fairness under § 829 of the BGB does not come into consideration. Even though the claimant's injuries caused by the accident were substantial and were not healed without adverse consequences, the claimant was not harmed by them in such a way as compellingly to require compensation, from the point of view of fairness, for the non-material consequences as well. Her training had merely been extended by half a year; she had received an annuity to compensate for the reduction in her earnings. The defendant had also been harmed in the long term by his illness which had been established on the occasion of the accident. In spite of successful medical treatment, he still had to put up with the uncertainty that cysts would form again. Because of this, the consequences of the claimant's accident were not so significant that, simply on the basis of the fate of the two parties, compensation for the non-financial harm was irrefutably necessary in addition to the compensation for the material harm.

There was just as little ground for saying that a comparison of the financial positions of both persons involved in the accident requires compensation. The defendant's monthly income of 3800 DM gross as an office worker was not so high that a substantial commercial difference arose from this, especially as the cost of living in the region in which the claimant lived compared with that of the defendant was clearly lower and, apart from this, the claimant was seeking more highly qualified employment. The claim to reimbursement on the basis of the existing third party vehicle insurance cannot be regarded as part of the defendant's assets. In any case, the existing insurance cover alone could not justify liability from the point of view of fairness without the presence of further circumstances.

II. The appeal in law is admissible in its full extent. It is true that the appeal court has admitted the appeal in law in view of considerations about § 829 of the BGB which were expressly limited to voluntary insurance in [reference omitted]. But the admission was not thereby limited to this aspect. It can be left undecided whether the admission question concerns a separable part of the total subject matter of the dispute, to which, according to the case law of the Bundesgerichtshof, an admission can be effectively limited (references omitted). In any case, the wish of the appeal court to limit the appeal in law to the question mentioned does not follow clearly and unambiguously from the disputed judgment. The appeal court only states in it what it was that caused it to admit the appeal in law. But it cannot be deduced with sufficient clarity from the judgment that the legal examination in the appeal in law should therefore also be limited to this question. Therefore the Senate must proceed on the basis that the admission of the appeal extends to the whole legal dispute at issue at the original appeal stage (references omitted).

III The appeal is also well founded.

1. The procedural objections raised by the appeal in law are unsuccessful.

a) There is no objection to the fact that the appeal court did not hear the expert Dr E again, because her written statement, as the appeal in law argues, does not show a sufficient basis for the judgment of the appeal court.

The Landgericht heard the expert orally on her written opinion given in the state prosecutor's inquiry proceedings on the claimant's application. In the transcript of the session, it is merely recorded of her statement that "in (her) opinion, one had to proceed in civil law on the basis that, at the time of the accident, the defendant had a condition which excluded the free exercise of his will". The written version of the expert's statement further records that she did not know "whether the defendant had already been treated medically for a convulsive disorder and whether he should have taken medication for it and whether he had been told that he ought not to drive from a medical point of view".

It must be admitted in favour of the appeal in law that the statement reduced to writing in this form, taken by itself, gave insufficient ground for the appeal court to find that the defendant had not been accountable for his actions at the moment of the accident. If the written version of a statement does not satisfy the requirements of § 160 (3) no.4 of the Civil Procedure Code, the court can admittedly be under a duty to hear the expert again in order to convince itself completely (references omitted). But § 160 (3) no.4 of the Civil Procedure Code permits the incorporation of an expert's statement into the written record on a repeat examination only insofar as it deviates from the earlier one. The expert in her statement relied conclusively on her written opinion given in the state prosecutor's inquiry proceedings and explained this in more detail orally, as the judgment of the Landgericht reveals. She merely supplemented her opinion, which she had first given from the point of view of criminal law, by an assessment of the defendant's accountability for his actions in the context of civil law in accordance with the instructions given to her by the Landgericht. As no deviations from or contradictions to the written opinion arose in the oral hearing, no reduction to writing was needed beyond what is set down as the comprehensive content of the statement in the record. The appeal court could therefore, without any breach of procedure, become convinced (as it did in the judgment under challenge) on the basis of the statements in the opinion, which is supported by a neurosurgeon's opinion.

b) Contrary to the claim of the appeal in law, the expert's view that the defendant suffered an epileptic attack of semi-consciousness at the point in time of the accident is not merely based on assumptions (reference omitted). The fact that on the neurological examination which the defendant underwent a few days after the accident, a "huge and expanding cystic growth in the area of the right temporal and frontal region, with the beginning of displacement of middle lines and symptoms of right brain pressure" was found, constituted a decisive indication for the expert, as follows from her written opinion. The intra-cranial demand for space had according to the opinion "already led to general symptoms like headaches and psychological changes in the sense of increased nervous tension and inability to concentrate".

The behaviour of the defendant immediately after the accident gave a further indication for the expert. According to the witnesses heard in the inquiry proceedings, he drove a further 50 metres without stopping, dragging the bicycle along with him, and when he finally stopped, was in a state of shock, and did not know where he was or what had happened. She considered that the "psychopathological picture of a semi-conscious state" emerged from these symptoms, and this could often take such an inconspicuous course that it is only noticed when a situation of danger occurs. An important criterion for this is, according to the expert's statements, "the mechanical and autonomous nature of the course of events, which cannot be interrupted". In the behaviour following the accident, the expert saw a reorientation phase in which the defendant had showed himself to be "helpless, still confused and semi-conscious". The expert's statements were therefore based on concrete indications and not merely assumptions.

2. However, the judgment does not stand up to the material legal challenges in the appeal in law. On the ground of the undisputed facts, the appeal court proceeded on the basis - admittedly without any more detailed explanation on this subject - that the defendant had, in an objective sense, behaved in a manner contrary to traffic regulations and had thereby committed an act which obliged him to provide compensation. There are no legal objections to this. But the Senate is not able follow the reasoning by which the appeal court denied a claim on the basis of fairness under § 829 of the BGB. In this respect, the appeal in law is correct in arguing that the appeal court's statements on the question of whether a comparison of the financial situations of both parties to the accident required the awarding of compensation for pain and suffering from the point of view of fairness are influenced by legal error.

a) The appeal court, in examining fairness, has wrongly left out of consideration the existence of third party insurance on the part of the defendant. It is necessary, at least in the case of compulsory insurance, as here, to recognise the fact that insurance protection exists for the person causing harm in the accident as an important factor in the defendant's financial position.

aa) Certainly the case law on the question of whether the existence of third party insurance can be considered in connection with the duty to compensate for damage as a factor in favour of a person injured in an accident has not been uniform. The Reichsgericht in 1944, abandoning its previous case law, considered the existence of third party insurance for the first time as capable of being taken into consideration for calculation of the level of compensation for pain and suffering in respect of the duty to indemnify for tortious fault (reference omitted). The Bundesgerichtshof followed this (references omitted). The Senate held this factor to be significant for the level of compensation in respect of the duty to indemnify on the ground of fairness liability under § 829 of the BGB on the basis of corresponding considerations (references omitted). On the other hand it has until this judgment rejected the existence of insurance protection as a factor worthy of consideration when it forms the basis of a claim ([references omitted]; likewise when considering a contribution to the harm by the victim under § 254 of the BGB, on the mirror image application of § 829 of the BGB to his disadvantage [references omitted]).

In the judgment of the 18th December 1979 referred to (reference omitted), the Senate abandoned this distinction, when considering third party insurance protection, between the ground and the level of the claim under § 829 of the BGB as unusable. But at the same time it emphasised that a limit must be drawn in considering whether this compensation claim could be made, in order to take account of the purpose of third party insurance which was primarily to protect of the policy holder from liability claims and not to create a basis of liability. In this connection, the Senate, in view of the criticisms made in the academic literature of the case law so far, considered whether a change in the function of third party insurance which had since occurred in the socio-economic structure would in a quite general way permit insurance protection, as a component of the tortfeasor's wealth, to be included fully within the test of fairness under § 829 of the BGB. It was not able to convince itself of such a change of function, at any rate for the area of voluntary third party insurance and therefore refused to take into account the insurance protection from such a voluntary third party insurance to the extent, in appropriate cases, of the highest amount of cover available. On the other hand, it acknowledged the concept - as employed so far - of considering the insurance merely to correct the level of the sum to be paid.

bb) These limitations cannot, however, contrary to the judgment challenged, be carried over to compulsory vehicle insurance as it existed for the defendant. The purpose of this insurance is primarily related to the protection of the victim. This goal was already served by the Introduction of Compulsory Insurance for Vehicles Act of the 7th November 1939. As follows from the official reasons (reference omitted) and as the Reichsgericht (reference omitted) and, following it, the Senate in the judgments of the 10th April 1954 (reference omitted) of the 13th June 1958 (reference omitted) and of the 24th June 1969 (reference omitted) have explained, compulsory insurance should, on the basis of this statute, secure for the victims of traffic accidents the compensation for harm which was due to them. A protection which was as free as possible from gaps should be provided for the victims, and especially in those cases in which the tortfeasor is not able to pay. This is reflected above all in § 158c of the Insurance Contracts Act (VVG) (which was newly formulated at that time) according to which, amongst other things, the duty of the insurer still remains when he is wholly or partially released as against the policy holder. This protection of the traffic accident victim was further strengthened and extended by the Compulsory Insurance Act of the 5th April 1965, and its subsequent amendments, with the direct claim against the insurer and the compensation fund (references omitted).

This special determination of the purpose of compulsory insurance in relation to vehicle traffic justifies letting the victim have the benefit of the tortfeasor's existing insurance protection in deciding whether the claim can be made within the framework of § 829 of the BGB as well. It is no obstacle to this that the separation principle, according to which the insurer's duty to indemnify follows the claim and not the other way round, is thereby broken. For the special claim under § 829 of the BGB the purpose of the third party vehicle insurance, which is protection of the victim, must prevail over this principle. The Senate has acknowledged the necessity of breaking this principle (which should as a rule be adhered to) in other cases as well (references omitted).

cc) Consideration of insurance protection under compulsory vehicle insurance by the tortfeasor admittedly does not mean that, simply because of it, the claim on the basis of fairness under § 829 of the BGB should always be allowed. In examining the question of whether fairness requires the injured party to be indemnified, it must instead be borne in mind that liability under § 829 of the BGB, which is independent of fault, forms an exception in the tortious liability system of the BGB. Therefore consequent on the wording of the provision, according to the constant case law of the Senate, a claim to compensation for harm under § 829 of the BGB is not to be granted simply when fairness permits it, but only when all the circumstances of the case really require liability on the part of a blameless tortfeasor on the grounds of fairness (references omitted). This exceptional character of § 829 of the BGB compels the prerequisites under which an indemnification of the victim is to be seen as fair to be set at a high level even in these cases.

In this connection it must further be borne in mind that, in relation to road traffic accidents, the material harm to the accident victim is already covered by strict liability under the Road Traffic Act (StVG) which is independent of fault. Thus the claimant is receiving full compensation for all her material harm, in particular the cost of cure and the loss of income. In this respect, the case in question differs quite substantially from the cases decided in [reference omitted] and in the Senate's judgments of the 13th June 1958 and the 24th April 1979 (references omitted), in which it was first a question of providing the victim with compensation for material harm with the help of § 829 of the BGB. But if the victim is already receiving full compensation for his material harm, as in this case, then there only remains the question of whether fairness requires him to be given compensation for pain and suffering over and above the compensation for material harm. Within the framework of § 829 of the BGB, there is only room for compensation for pain and suffering on the grounds of fairness in the case of serious injuries, in particular lasting harm. All in all, the granting of compensation for pain and suffering, considering the exceptional character of § 829 of the BGB, accordingly only comes into consideration, if, bearing in mind the fact that in traffic accidents caused without fault, compensation for pain and suffering is not forfeited as a rule, its refusal in the individual case blatantly contradicts feelings of fairness. In this respect the approach for the examination of fairness in § 829 of the BGB is a different one from that in § 847 of the BGB, to which the Senate referred in its judgment of the 18th December 1979 (reference omitted).

b) The judge of fact must decide whether, under these prerequisites, awarding compensation for pain and suffering is required in the individual case on the grounds of fairness. He has to consider all the circumstances of the case in this connection. Besides the economic relationship of the parties to the accident, the intensity of the invasion of the protected legal interest can be of importance in this connection, as well as - for instance in relation to deliberate acts - the unusual character of the action giving rise to the duty to compensate for harm (references omitted).

In this respect also the remarks of the appeal court give cause for serious doubts. The appeal court compares the claimant's accident injuries, which had resulted in a lengthening of her original training "by merely half a year", with the defendant's illness established on the occasion of the accident, by which he additionally suffered long term harm and the uncertainty that the formation of cysts might be repeated in spite of the successful medical treatment. In the light of this uncertainty, the consequences of the accident, according to the view of the appeal court, did not have such weight for the claimant (who was harmed on a long term basis in relation to certain physical postures and in her hearing capacity) that, on the basis of the fate of the claimant and the defendant, compensation for non-material harm as well was irrefutably necessary.

These remarks are not free from legal errors. The burden of uncertainty about the future development of the defendant's health may admittedly be serious for him. But it cannot be regarded as equivalent to the claimant's accident injuries. The appeal court did not take into account that the impairment of the defendant's health was determined by fate and had nothing to do with the accident. The claimant's injuries were, on the other hand, caused by an objectively serious failure of the defendant in connection with the driving of his vehicle. The defendant at any rate suffered no injuries through the accident. The appeal court should have taken account of this circumstance, because there can be no doubt that, in connection with the considerations of fairness which are to be employed under § 829 of the BGB, a substantially smaller weight is due to harm to health which is not dependent on the accident than to that which is based on the accident.

c) From the above considerations, it follows that the reasoning by which the appeal court has denied a claim for a declaration cannot stand.

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