OLG Oldenburg VersR 1991, 306, (175)
OLG Oldenburg, Judgment of 20 May 1988 (6 U 28/88).
This case is first published in the German Law Archive courtesy of: Translated German Cases and Materials Under the direction of Professors P. Schlechtriem, B. Markesinis and S. Lorenz
Translated by Mr Raymond Youngs, Southampton Institute
On the 22nd December 1982, the plaintiff was committed to the secure section of the state (Land) hospital X at the request of the defendant. On the same day the defendant applied for committal of the plaintiff in accordance with §§ 10 ff. of the PsychKG ND. The medical opinion supporting the application diagnosed “paranoia (delusions of jealousy and persecution)”. It said the illness was a risk to the plaintiff and others. Dr D, the defendant’s medical officer, signed the opinion after telephone conversations with the doctor in attendance, Dr F, who also signed it. Dr D did not personally examine the plaintiff.
The Amtsgericht (district court) decided on the 23rd December 1982 to commit the plaintiff for a maximum of six weeks for observation. From the 29th December 1982 to the 4th January 1983 the hospital gave him leave of absence. He lodged a complaint, and the Landgericht quashed the committal decision on the 13th January 1983.
By a letter of the 18th July 1983 the defendant’s road traffic division asked the plaintiff to submit a medico-psychological report about his fitness to drive. He did not reply, so the defendant withdrew his driving licence on the 29th August 1983. It did not order immediate implementation of this decision. The Oberverwaltungsgericht (upper administrative court) quashed the defendant’s decision, because the plaintiff had not been proved unfit to drive. No severe mental illness had been shown for the period from the end of 1982 to the beginning of 1983. The plaintiff was justified in refusing to undergo the examination demanded.
The plaintiff now claimed from the defendant payment of compensation for distress estimated at 100,000 DM, and payment of loss of earnings of 140,626.60 DM. He also wanted a declaration that the defendant was obliged to compensate for future material harm.
The plaintiff claimed that the medical officer, who had approved the committal without making his own investigation, and the official in the administrative office, who had ordered the committal without a previous court decision, had violated their official duties. There was no risk to either to the plaintiff himself or others. This was not the typical consequence of a paranoia, and the official would have realised this if he had shown proper care. Even the withdrawal of the driving licence had been a breach of duty because it had been based on the unlawful provisional committal (or the temporary committal) without a proper investigation. The withdrawal of the driving licence had resulted in the plaintiff losing his job.
(The Bundesgerichtshof in its decision of the 29th March 1990 (III ZR 160/88) (BGH VersR 1991, 308) rejected the plaintiff’s appeal in law against the judgment set out here).
The plaintiff has a claim against the defendant for compensation for distress in the sum of 5000 DM for unlawful deprivation of freedom. On the other hand he cannot ask for compensation for his loss of earnings because it cannot be established that the loss claimed was caused by a culpable violation by the defendant of official duty. The plaintiff’s claim for a declaration in relation to his future harm is accordingly likewise unfounded.
1. The prerequisites for the granting of compensation for distress in accordance with § 847 of the BGB are present. The plaintiff has been deprived of freedom by a tort by the defendant in the sense of § 839 of the BGB in combination with Art 34 of the Basic Law. The medical officer in the service of the defendant, Dr D has violated an official duty owed by him to the plaintiff in that he signed a medical certificate for the instigation of the committal procedure, without making it sufficiently clear that the findings of Dr F which formed the basis of it had been made several days before the submission of the opinion. Therefore a provisional committal of the plaintiff on this basis in accordance with § 16 of the PsychKG ND could not be considered. The opinion which was sent to the administrative section of the defendant on the 22nd December 1982 contains no date. Nor can it be deduced from the text of the opinion when the plaintiff was examined and when the findings which were decisive for the opinion were ascertained.
And yet the opinion form signed by the medical officer gives the impression that it was filled up immediately after the ascertaining of the findings. This is because in the first line (which contains the word “Urgent” in bold) and in the text of the request before the signatures of the doctors (which asks for an immediate decision) it is made clear that the committal procedure could not be postponed and that the medical experts had also taken that into acount.
But actually the plaintiff had last spoken with the doctor in attendance, Dr F, on the 15th December 1982, as the medical officer indicated in his testimony in the investigatory proceedings. Further contacts after this point in time, for instance on the 21st December 1982, indisputably broke down. The medical officer himself did not examine the plaintiff at any time.
The medical officer was under a duty to provide appropriate explanations in his area of work and therefore in particular in the content of the opinion. It was true that it was not part of the responsibility of the medical officer to arrange directly for the committal of the person affected or to apply to the court. It should however have been obvious to him that the competent official in the administrative section of the defendant would rely on the statement by the doctors and because of the urgency of the matter would very probably first of all arrange for a provisional committal in accordance with § 16 of the PsychKG ND. It was therefore a duty of the medical officer, which he owed to the person affected, to ensure that this foreseeable unlawful provisional committal did not take place.
The violation of duty by the medical officer led with adequate causality to the unlawful deprivation of the plaintiff’s freedom. The responsible officer in the administrative office relied on the statements in the opinion without himself investigating at what point in time the findings were ascertained and he arranged for a provisional committal of the plaintiff in accordance with § 16 of the PsychKG ND.
It is true that the defendant has not expressly issued a formal administrative act in respect of the committal. The plaintiff was however indisputedly moved to the state hospital X with the official assistance of the police before the issuing of the judicial committal decision. This amounts to conclusive conduct (schlüssiges Handeln) on the part of the defendant which was made known to the plaintiff when it was carried out. If the point in time when the findings were ascertained had been known to the official of the administrative office, the provisional committal would not have taken place, since it must be assumed that the authorities would act in accordance with their duties.
It can be left open whether the plaintiff, had the medical officer acted lawfully, would possibly on the 22nd December 1982 have been examined again, perhaps compulsorily, whether the diagnosis would have been confirmed and whether he then would likewise have been provisionally committed. This is because the defendant cannot rely on the fact that it could have achieved the deprivation of freedom in a lawful manner which would have not formed the basis of a duty to compensate (reliance on lawful alternative action).
When a person causes harm by a breach of duty, the question of the extent to which the consequences of his conduct can rightly be assessed as attributable to him is to be answered according to the protective purpose of the violated norm involved [references omitted]. In the present case, there has been a violation of the conditions laid down in § 16 of the PsychKG ND. This provision is the expression of a constitutional guarantee according to which the state is only permitted to limit the freedom of a person on the basis of a formal statute and only if it takes into account the provisos described in it (Arts 2 and 104 of the Basic Law).
The protective purpose of the statute thus lies in permitting a deprivation of freedom only under the conditions prescribed in it. In this particular case it should also be ensured that, up to a point directly before the decision to commit, the state of health of the person concerned has not improved to such an extent that deprivation of freedom is no longer justified. The special urgency of immediate deprivation of freedom must thus be accepted in each case. Unless it is certain that the state of health will continue, the deprivation of freedom must not occur.
It is therefore a question of a fundamental protective norm to guarantee the rights of the citizen, which is not allowed to lose its significance in the context of compensation law just because some form of alternative action would have been lawful [references omitted].
On the same basis the argument of the Landgericht that the Amtsgericht, if it had been in a position to make a decision on the relevant day, would have ordered the committal cannot exonerate the defendant either. Here also the protective purpose of the violated norm excludes appeal to lawful alternative action.
The medical officer has also acted culpably. By using the required care, he could recognise and foresee that the official of the administrative section would see himself as compelled, on the basis of the dangerous situation for the plaintiff and other third parties as certified in the opinion, not only to arrange for a judicial committal but also to order immediately a provisional committal in accordance with § 16 of the PsychKG ND to avert the danger. (Details are given).
The defendant must therefore pay to the plaintiff compensation for distress for the non-material detriments suffered in consequence of the deprivation of freedom. In this connection, when calculating the amount of the damages for distress not only must the length of time of the provisional committal to be taken into account, but also that of the judicial committal. This is because it can be assumed that the court also would have come to another conclusion in its decision in accordance with § 15 of the PsychKG ND if it had known that the last examination of the plaintiff by the medical expert had taken place a week ago.
Taking into account all the circumstances, damages for distress of 5000 DM seem fair but also sufficient to the Senate. The plaintiff was committed from the 22nd to the 29th December 1982. According to his own account he was given leave of absence on the 29th December 1982 so that the consequences of the deprivation of freedom did not continue beyond this point in time. At the most the possibility remained of the further detriment of revocation of the leave of absence. This however did not happen. Long term harm to the plaintiff did not therefore occur.
Even if freedom is to be regarded as a legal interest worthy of the highest protection, the plaintiff’s ideas about compensation (100,00 DM) for distress seem greatly exaggerated. They bear no relationship to the compensation which is payable for unjustified criminal arrest. Admittedly the plaintiff was temporarily arrested by the police in order to implement the committal order, and these circumstances and the fact of committal in his home town have been talked about and have had a disadvantageous effect on his social relationships and his reputation. But even bearing these matters in mind compensation for distress in the approved sum is the most that should be considered.
The claim of the plaintiff is not excluded by § 839 (1) sentence 2 of the BGB. Firstly Dr D has disregarded the protective provisions of PsychKG ND not merely negligently but (at least) grossly negligently. Besides this the plaintiff has no other option for compensation available.
The issue of whether a possibility exists of obtaining compensation from the state can remain open, as this is also a public law body and the claim would therefore likewise be directed against the public sector; and it is necessary to proceed on the basis of the unity of the public sector [reference omitted]. The plaintiff can also not claim against the other medical expert, Dr F. (Details are given).
II. On the other hand the plaintiff has no claim against the defendant under § 839 of the BGB and Art 34 of the Basic Law to compensation for his loss of earnings nor to a declaration that the defendant is obliged to compensate for future harm. This is because it can neither be established that the defendant has culpably violated an official duty in taking proceedings for withdrawal of the driving licence nor that the alleged harm to the plaintiff arose as a consequence of the measures taken by the defendant.
In the present case no blame, as the Landgericht has already pertinently explained, attaches to the defendant in any case, since in relation to this measure, a collegial court in which three professional judges sat, namely the Verwaltungsgericht, has adjudged its conduct to be objectively justified. The conditions developed in this respect for justifying a denial of the culpability of the office holder are present. The Verwaltungsgericht in its decision used the right facts as a basis, evaluated these carefully and in its assessment of the legal situation neither misjudged clear and unambiguous rules nor blatantly falsely interpreted unambiguous rules.
With reference to the grounds of the court decision of the 27th November 1984 the Verwaltungsgericht proceeding on the basis of the relevant provisions (§§ 4 (1) of the Implementation of Punishment Act (StVG) and 15b (1) of the Road Traffic Licences Order (StVZO)) looked carefully at the documents which were available about the plaintiff’s psychological condition and came to the conclusion that they justified doubts about the fitness of the plaintiff to drive.
It accepted that this, together with the plaintiff’s lack of preparedness to dispel the doubts by producing a medico-psychological opinion, justifies the conclusion that the plaintiff wanted to conceal defects which made him unfit to drive a vehicle. One must therefore, so it explained, proceed on the basis of his unsuitability to drive vehicles. These considerations of the Verwaltungsgericht do not violate rules of logic. The legal views referred to are at least defensible, taking into consideration the provisions cited.
Beside this it is not evident that the withdrawal of the driving licence was the cause of the harm claimed by the plaintiff. (Details are given).
©1999 University of Oxford. Since 2002: © Translation The University of Oxford and Professor Markesinis 1999. HTML edition by Lawrence Schäfer. © 1999 Gerhard Dannemann.