EU Tort Law~Case Study

Driver With Epileptic AttackBGH NJW 1995
Presented by Wen-Cheng, Huang
Outline
Fact
Claims
Legal setting
Holding
Reason 1
Reason 2
Reason 3
Reason 4
Reason 5
Reason 6
Conclusion



Fact
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.
The claimant 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.

Claims
The claimant demands from the defendants compensation for pain and suffering for injuries which she suffered in a road traffic accident.
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 claimant's material harm was dealt with under the Road Traffic Act and fully compensated.

Legal Setting
According to § 829 BGB, the defendant can be obliged to pay damages on the basis of equity.
Whether someone is obliged to pay damages on the basis of § 829 depends on the circumstances of the case, such as the nature and extent of the damage, the contributory negligence of the victim, the mental development of the tortfeasor, and particularly the parties’ financial positions.
§ 829 requires Verschulden(intention or negligence) unless this cannot be established because of defendant’s age or mental condition.
According to BGH, compulsory liability insurance can be a basis for equity liability, whereas voluntary liability insurance cannot trigger liability but only influence the amount of damages.
After 2002 pursuant to road traffic act § 11, in the case of injury to the person or to health, the damages comprise compensation for the expenses of the cure and for the economic loss which the injured party suffered because his earning capacity was temporarily or permanently destroyed or reduced as a result of the injury or because his needs have increased. Equitable compensation in money can also be claimed for non-pecuniary loss.

Holding
The lower courts rejected the claimant’s claim.
The appeal court denied the claimant’s appeal.
While, the BGH allowed the claim’s appeal in law so that led to quashing of the decision and reference back.

Reason 1
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.
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 recognize the fact that insurance protection exists for the person causing harm in the accident as an important factor in the defendant's financial position.
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 favor of a person injured in an accident has not been uniform.



Reason 2
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 emphasized 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.
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.


Reason 3
Therefore, 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 that 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 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.
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.


Reason 4
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.
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.



Reason 5
Therefore, 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.
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.
The judge 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.
In this respect also the remarks of the appeal court give cause for serious doubts.



Reason 6
The appeal court compares the claimant's accident injuries, with the defendant's illness established on the occasion of the accident.
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 claimant's injuries were, caused by an objectively serious failure of the defendant in connection with the driving of his vehicle.




Conclusion
Firstly, after 2002 art. 11 of road traffic act shall be the first one to used to claim that the loss of pain and suffering caused by accident.
Based on the consideration of policy expressed by the legislator, we can recognized that the claimant could directly get the compensation from the insurance company.
For fully satisfied the loss and the need of the injured parties in the accident, it tends to impose the duty on the defendant without fault, even the defendant is unable to control the vehicle.
While, in the world of risk without fault, it tends to admitted that it is not important to ascertain which one is fault. Instead it tends to spread the loss to the whole society by means of compulsory insurance.
Does it also imply that each one is no longer expected to be able to hold his or her own duty so that he or she is obliged to insure?