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27 June 1913, RGZ 83, 15

Reichsgericht (Third Civil Senate) 27 June 1913, RGZ 83, 15, with case note.

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. Tony Weir, Trinity College, Cambridge

In December 1908 the plaintiff, a journeyman decorator, suffered an injury to the little finger of his right hand. When he went to the defendant to be treated, the defendant washed the wound with carbolic acid and applied a carbolic acid bandage to it for twelve hours. In consequence the plaintiff developed a so-called carbolic gangrene. This required prolonged medical treatment, which had the result that he lost the nail on his finger and the finger itself became red and shiny, thick in places and stiff. When the plaintiff claimed damages the defendant objected that his earning capacity could be restored by surgical removal of the finger, an operation he would certainly have had if the injury had been due to an accident or something of the sort and he had no one solvent to sue. As experts would testify, the operation was simple and safe. Of course he did not want to require the plaintiff to undergo the operation, but if the plaintiff chose not to use the available means of countering the diminution of his earning capacity, this must be at his own and not the defendant’s expense, and he could claim only the earnings he would lose if he had the operation. The plaintiff countered by declaring that the operation was very painful and quite dangerous, that it would not help his earnings as a journeyman decorator and might indeed make the whole hand stiff, as experts would state. This being so, he could not be expected to undergo the danger and pain of an operation.

The defendant was held liable in both lower courts, but on his appeal the judgment was reversed and remanded for further proceedings.

Reasons: The appellant first complains that the court below ignored his defence that the plaintiff would not have suffered any or most of the harm complained of if he had the useless little finger surgically removed, at least in part, for that would have alleviated, if not completely remedied, his inability to work. The court below paid no attention to this defence, and did not even allude to it in its judgment; as the following considerations show, however, it should not simply have dismissed it as irrelevant.

On the question of the law to be applied when a person who suffers an injury at work refuses to go into hospital, although doctors advise that his injuries could be cured or at any rate alleviated, the Sixth Civil Senate of the Reichsgericht said that the person responsible for an injury has a defence under § 254 BGB if he establishes that there was a method which medical experience had shown to be apt to cure or at any rate materially alleviate the injury, that the victim was aware of this method, and that he could have proceeded to use it (RGZ 60, 147). If this is established, it is for the victim to explain why he declined to use this method. The court must then evaluate his reasons by asking whether a reasonable man, paying due heed to the interests of the person liable, would also have declined to use that method, on the basis that it is reasonable to undergo an operation if the risk of further injury or great pain is very slight and the cost is to be borne by someone else (at pp. 151, 152). In JW 1907, 740 no. 6 the same Senate held this rule applicable in principle to operations of the kind now in question, and endorsed the statement by the lower court that a plaintiff can be expected to undergo an operation if its success is assured, to the extent that anything can be guaranteed in medical matters, and it should have been obvious to the plaintiff that it was not dangerous. The Senate itself added that the circumstances of each case must be considered, paying particular attention, among other things, to the nature of the injury, the gravity and danger of the operation and the degree of assurance of a successful outcome.

These principles call for amplification and refinement. There is a conflict between, on the one hand, the application of § 254(2) to the injured party of whom the defendant says that if only he underwent an operation he could recover all or most of the earning capacity lost through the injury and, on the other, the right which one must accord to the victim to decide freely whether or not to permit his corporeal integrity to be invaded by a surgical operation. Before the BGB came into force legal scholars inferred from the victim’s right of corporeal self-determination that he can never to held to be at fault for refusing to undergo an operation so as to reduce the liability of the party who injured him. This view that it is unjustifiable to require the victim to undergo a normally safe and effective operation by denying him full damages unless he does so was supported by the consideration that even an operation which is normally quite safe can have serious sequelae or even prove fatal through unforeseen circumstances, and that the predicted benefits may not be achieved.

More recently, however, scholars and courts under the BGB have abandoned this view which is one-sided in taking only the victim’s interests into account. There must be some limit to the victim’s right of self-determination, and that limit is reached when he exercises it out of mere caprice or in order to exploit the liability of the tortfeasor in an unconscionably selfish manner. The victim cannot be allowed to claim money for a life of leisure when his earning capacity could be reinstated by a perfectly safe operation involving no serious pain: the maxim of good faith applies to the exercise of the right to claim compensation for harm suffered as well as to other rights. We need not discuss the question of compensation neurosis, which has recently been described as a disease. What counts is the objective situation in each case.

The requirements of the defence that the victim failed to undergo an operation which would have restored his earning capacity will now be clear. First the operation must, according to expert evidence, be free from danger, in so far as that can ever be said in the light of current medical knowledge, that is, unless there is some unforeseeable condition. This immediately excludes any operation involving chloroform as opposed to local anaesthetics, since here the possibility of a fatality cannot be excluded even after the most careful analysis of the patient’s physical condition. This is in line with the decisions of the Imperial Insurance Office. Furthermore, the operation must not involve any considerable pain, for the victim, whose condition is after all due to the act of the defendant, cannot in good faith be required to undergo great hardship, such as suffering serious pain, to reinstate his earning capacity. Then the experts must be of the opinion that the operation is very likely to improve the victim’s earning capacity, either to restore it completely or at least increase it significantly. Finally, the defendant must have made it clear to the victim that he is prepared to have the operation carried out at his expense, in a proper place and by specialists, or, if the operation is to be arranged by the victim himself, to advance the cost. Since liability rests on the person who caused the harm or whoever must answer for it, the victim is not required to find from his own resources the sizeable sums required for an operation simply in order to reduce that liability. Of course it will often be the victim himself who decides to have the operation in order to relieve himself of intolerable bodily problems and so must pay the surgeon himself. We are not concerned with such cases.

The reason just given also shows that if unexpectedly the operation is a failure and causes further harm, liability for this attaches without more to the defendant, since such harm is causally related to the injury for which he is to blame. He must accept this liability because it is at his insistence that the victim submitted to that particular operation in order to restore or improve his earning capacity.

If the victim refuses to comply with a demand which meets these requirements and does not have the proposed operation the defendant has a good defence to a claim for damages to the extent that the harm would have been neutralised by the operation. Then it is for the victim in rebuttal to indicate the particular reasons for which he declined to have the operation, as laid out in the decision of the Reichsgericht in RGZ 60, 151, already mentioned. The negotiations of the parties over the operation form no part of the legal dispute as it develops, but if during the litigation the defendant makes a demand meeting the above criteria and the victim unjustifiably refuses to accede to it, this is obviously a matter of defence which can be raised in the lawsuit itself, consistently with the rules of civil procedure regarding the admission of new evidence. Until any such defence is established, however, the plaintiff’s claim for full damages remains good.

In the instant case the plaintiff’s own expert, Dr. Z., observed that his finger was worse than useless and complete removal should be envisaged, so the court below should have considered the defendant’s evidence and if necessary have exercised its right to put questions when any amplification was needed. Instead it wholly failed to consider the defence under § 254(2) BGB and so infringed § 286 of the Code of Civil Procedure.

©1998 University of Oxford. Since 2002: © Translation The University of Oxford and Professor Markesinis 1998. HTML edition © 1998 Gerhard Dannemann.

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