Экзамен зачет учебный год 2023 / Koziol_BasicQuestions_Germanic

only take into consideration such omissions as could conceivably have infringed such duty to act. To use a familiar image from Engisch 122: the judge looks alternately at the problem of causation and that of infringement of a duty to act. But the same applies to active conduct and, nonetheless, there is consensus in this respect that it is necessary to look separately at causation and violation of duties of care.

No good reason to proceed differently in the case of omissions can be identified: in line with the conditio-sine-qua-non formula, an omission is the cause of damage if the relevant harm could have been avoided by taking conduct and the question of whether there was a duty to engage in this conduct is a separate

116On this Riss, JBl 2004, 428 f; Koziol, RdW 2007, 12.

117Zimmermann in: Winiger / Koziol / Koch / Zimmermann, Digest I 2 / 29 no 3.

118Zimmermann, Damage Caused by Omission – Germany, in: Winiger / Koziol / Koch / Zimmermann, Digest I 2 / 2 no 3; Durant in: Winiger / Koziol / Koch / Zimmermann, Digest I 2 / 7 no 5; van Boom / Giesen, Damage Caused by Omission – The Netherlands, in: Winiger / Koziol / Koch / Zimmermann, Digest I 2 / 8 no 4. See further von Bar, Deliktsrecht II no 413; Brüggemeier, Haftungs­ recht 25; Oftinger / Stark, Haftpflichtrecht I5 126.

119BGH in BGHZ 34, 206, see Zimmermann in: Winiger / Koziol / Koch / Zimmermann, Digest I 2 / 2 no 2; Lange / Schiemann, Schadensersatz3 155.

120Zimmermann in his commentary on the afore-mentioned BGH decision in: Winiger / Koziol / Koch / Zimmermann, Digest I 2 / 2 no 3.

121Koziol, Haftpflichtrecht I3 no 3 / 15. In agreement Magnus in: Tichý, Causation 101 f.

122Logische Studien zur Gesetzesanwendung3 ( 1963 ) 15.

E. Exceptions from the requirement of causation ?

5 / 68 Hitherto it has been emphasised that in principle the requirement of causation may not be disregarded. Nonetheless, doubts arise in this respect in the light of decisions and literature dealing with the problem of the costs prior to the damaging event 123: a public transport company acquires a backup vehicle. A third-party motorist damages one of the company’s vehicles; the company puts the backup vehicle into operation while the damaged vehicle is being repaired. Does the damaging party have to pay part of the costs for acquiring the backup vehicle ?

5 / 69 In Germany, but also in other legal systems, this claim has been affirmed on the basis of tort law 124, albeit in clear disregard of the conditio-sine-qua-non formula: it is beyond doubt that the tortfeasor’s actions were not causal since the costs for the acquisition of the backup vehicle were already incurred prior to the damaging event 125. Hence, it is obvious that the tortfeasor could in no way have impacted on the earlier purchase and thus incurrence of expense by means of his misconduct. Even in the absence of the accident for which he is accountable, the same backup vehicle would still have been bought.

5 / 70 This is also the reason why the OGH 126 awarded compensation not on the basis of the rules of tort law but instead those of negotorium gestio ( Geschäftsführung ohne Auftrag – §§ 1036, 1037 ABGB ). It cited as grounds the fact that it is

123 This case was cited under Category 3 of the questionnaire in Winiger / Koziol / Koch / Zimmermann, Digest I 2 a; cf also Case 6 in the questionnaire in Spier, Unification: Causation 4; further von Bar, Deliktsrecht­ II no 423 ff.

124 See Zimmermann, Preventive Expenses Incurred before the Damaging Event – Comparative Report, in: Winiger / Koziol / Koch / Zimmermann, Digest I 3 / 29 no 1.

125 Niederländer, Schadensersatz bei Aufwendungen des Geschädigten vor dem Schadensereignis, JZ 1960, 617; ebenso B.A. Koch, Preventive Expenses Incurred before the Damaging Event – Austria, in: Winiger / Koziol / Koch / Zimmermann, Digest I 3 / 3 no 6. Ch. Huber, Fragen der Schadensberechnung2 ( 1995 ) 392 ff, on the other hand, made an interesting attempt to level the way for a compensation claim by introducing abstract damage assessment.

126 8 Ob 5 / 86 in SZ 59 / 95.

F. The attenuation of the causation requirement

1. Liability of several tortfeasors

Pursuant to §§ 1301, 1302 ABGB, §§ 830 ( 1 ) sentence 1, 840 BGB there is joint and 5 / 73 several liability in the case of intentional joint action regardless of whether the

parts of the damage caused by the individuals in question can be determined 127. This liability has often been seen as liability for actual causation on the basis of

127Further comparative law references are offered by Winiger, Multiple Tortfeasor, in: Tichý, Causation 79 ff.

the joint will of the parties 128. However, F. Bydlinski 129 has pointed out that as a rule it is not really possible to ascertain whether the joint decision taken was really a conditio sine qua non in respect of the damage which occurred or whether the act would nonetheless have been committed. As the psychological exertion of influence can seldom be established in retrospect, these cases almost always concern merely a suspicion of causation. However, the attenuation of the causation requirement is compensated, so he argues, by the fact that an especially serious degree of fault, specifically intention, must be shown 130. If, by way of exception, a joint-per- petrator manages to defuse the suspicion of causation, he is not liable since this means there is not even any possible causation 131.

5 / 74 It must be pointed out that departing from the rather mechanical application of the conditio-sine-qua-non formula, liability becomes a values issue 132, involving several material factors. One aspect that might seem to justify the attenuation of the causation requirement is that each of the co-perpetrators acted, in a manner for which they may be held responsible, to create a situation in which the issue of causation is irresolvable as far as the victim is concerned. Moreover, the conduct of each individual perpetrator was highly likely to give rise to damage, ie it was dangerous. The culpable creation of an irresolvable situation connected with the likelihood that the intentional conduct gave rise to the damage that occurred justifies the assumption of causation and thus the liability for merely potential causation.

2.Alternative causation a. The problem

5 / 75 The issue here is when a victim suffers damage that was certainly caused either by event 1 or event 2, but it cannot be established which of the events was in fact the cause.

We shall start with an example of no great practical significance but very suitable for variations: the claimant K, a mountain climber, was hit and injured by a falling stone; at the same time another stone flew past, just missing his head. One of these stones fell because of the carelessness of mountain climber B1 and the other because of the carelessness of mountain climber B2; however, it cannot

128Cf K. Wolff in Klang, ABGB VI2 54, and the references in Weckerle, Die deliktische Verantwortlichkeit mehrerer ( 1974 ) 86 f.

129F. Bydlinski, Haftung bei alternativer Kausalität, JBl 1959, 10 f; idem, Mittäterschaft im Schadens­ recht, AcP 158 ( 1959 / 60 ) 411 f.

130According to F. Bydlinski, AcP 158 ( 1959 / 69 ) 429 f, gross negligence is also sufficient.

131F. Bydlinski, AcP 158 ( 1959 / 69 ) 417 ff. Against this, eg, Weckerle, Verantwortlichkeit 85.

132Special value is seen by Gebauer, Hypothetische Kausalität und Haftungsgrund 9 f, in this for all cases of hypothetical causation.

be ascertained which stone was knocked down by which mountain climber and which of these hit K.

The following case, which once came before the Austrian OGH 133 and which also has its parallels in other legal systems 134 has become famous: the hunters B1 and B2 were standing close to each other, both wanted to shoot a partridge and they shot at the same time. They overlooked the fact that the line of fire crossed a pathway. A person walking on this pathway was hit by a pellet; it cannot be ascertained whether this came from B1’s gun or B2’s gun.

Of greater practical significance may be a case from the medical field: the victim was treated with a particular medication in hospital and after some time adverse side-effects emerged. In the hospital at the time, medication from either the pharmaceutical manufacturer B1 or the pharmaceutical manufacturer B2 was used for this kind of treatment; both medications contained the ingredient which was harmful to the patient. It can no longer be established which of these medications was used in the instant case.

The solutions applied to such problems of causation have been very different in different legal systems in the course of development and continue to be very variable 135.

b. Joint and several liability under Austrian and German law

According to Austrian 136 and equally according to German law ( § 830 ( 1 ) sentence 2 5 / 76 BGB ), the defendants B1 and B2 are always liable jointly and severally. In this con-

text it must be emphasised that, in order to be held liable in this fashion, both B1 and B2 must fulfil all other prerequisites for liability – apart from the establishment of causation. Thus, one may say that each of the defendants would certainly be held liable if one could establish that he / she had caused the damage.

133GlUNF 4329.

134On the Californian case Summers v. Tice see Geistfeld, The Doctrinal Unity of Alternative Liability and Market-Share Liability, U Pa L Rev 155 ( 2006 ) 453 f.

135See on this Kruse, Alternative Kausalität im Deliktsrecht – Eine historische und vergleichende Untersuchung ( 2005 ). On European and non-European legal systems B.A. Koch, Comparative Analysis, in: B.A. Koch ( ed ), Damage Caused by Genetically Modified Organisms ( 2010 ) 897 f with references to the country reports; on European legal systems Koziol, Comparative Report, in: Winiger / Koziol / Koch / Zimmermann, Digest I 6a / 29 no 1 ff, as well as B.A. Koch, Medical Liability in Europe: Comparative Analysis, in: B.A. Koch ( ed ), Medical Liability in Europe ( 2011 ) 635, in each case with references to the country reports; on English, Dutch and Austrian law see Oliphant, Proportional Liability, in: Verschraegen ( ed ), Interdisciplinary Studies of Comparative and Private International Law I ( 2010 ) I 181 ff.

136On this F. Bydlinski, Haftung bei alternativer Kausalität, JBl 1959, 1; Koziol, Haftpflichtrecht I3 no 3 / 26 ff; idem, Auf dem Weg zur Vereinheitlichung des Europäischen Schadenersatzrechts ( 2005 ) 59 ff ( Korean ), 201 ff ( German ).

merely concern a problem of the burden of proof: due to unlawful, culpable behaviour, the perpetrators are obligated to prove that they did not cause the damage. However, this line cannot be followed: in cases of alternative causation, the causation by each relevant behavioural factor must be taken as proven when viewing both events in isolation due to the high, concrete risk such behaviour posed. The victim would thus have produced the evidence and a presumption of causation would not be required. The evidence only seems unsuccessful when we depart from examining the events in isolation and consider the two events simultaneously; then causation could no longer be assumed proven. Hence, a rule on the burden of proof could play a role; but would in precisely such case – as F. Bydlinski 141 has pointed out – be inappropriate: the presumption would apply to both perpetrators so that causation by both would have to be assumed, although it is known that only one of them caused the damage 142. Thus, this cannot be a matter of the burden of proof and accordingly presumption of causation, but instead the fact that under substantive law merely potential causation is deemed sufficient.

137 F. Bydlinski, Aktuelle Streitfragen um die alternative Kausalität, Beitzke-FS ( 1979 ) 3. 138 Larenz / Canaris, Schuldrecht II / 213 § 82 II 3b.

139 Larenz / Canaris, Schuldrecht II / 213 § 82 II 1b; Wilhelmi, Risikoschutz 306, 309 with additional references.

140 Reischauer, Der Entlastungsbeweis des Schuldners ( 1975 ) 113. Recently Kletečka, Alternative Verursachungskonkurrenz mit dem Zufall – Die Wahrscheinlichkeit als Haftungsgrund ? JBl 2009, 140, has picked up on this notion again.

141 Beitzke-FS 8.

142 Kletečka, JBl 2009, 140 FN 26, seeks to counter this persuasive argument with the excuse that this does not apply in case of an event triggering liability competing as cause with coincidence. In this context, however, the issue is the justification for establishing liability when it comes to events alternatively triggering liability and in this respect the argument of the causation presumption does not fit. The reference to the cases where an event triggering liability competes as cause with coincidence is, moreover, unconvincing for another reason also; this will be dealt with in more detail below no 5 / 90.

time relations and the concrete risk it created that it would have to be deemed proven. The requirement of a high degree of concrete risk posed further means that events with a low degree of probability for causing damage are not taken into consideration. The sometimes voiced fear that no victim would ever again be compensated in full under the rule presented here, as there are always some kind of far-removed alternative causes, is thus completely unjustified.

In the event of acute, concrete danger posed by one perpetrator, the existence of a second, equally concretely dangerous perpetrator should not preclude that liability of the first perpetrator which would otherwise be affirmed and vice versa. It

143See above all Wilburg, Elemente; idem, Bewegliches System.

144Schilcher, Schadensverteilung 204.

145This is stressed by F. Bydlinski, Causation as a Legal Phenomenon, in: Tichý, Causation 19; and neglected by G. Wagner in his review of the German version of this book, JETL 2011, 338, when he tries to point out, that my » theory of normative causation may allow a court to find causation where there is none «.

is preferable that uncertainty of causation be borne by the possible perpetrators rather than by the victim, who has a claim for compensation in any case: firstly, both perpetrators have acted unlawfully and culpably and, secondly, they have also precipitated the uncertainty regarding the causation by their specifically dangerous conduct 146. Thus, the material arguments are similar to those in the case of the liability of joint-perpetrators ( see above no 5 / 73 f ); one difference nonetheless is that in the case of joint-perpetrators there is suspicion of causation in relation to each of the several joint-perpetrators in addition to each other, whereas in cases of alternative causation there is simply the suspicion that one of the two caused the damage.

5 / 81 An interesting line of reasoning, on the surface very different, is proposed by Geistfeld 147: he argues that the liability of alternative perpetrators can be justified by the notion that the causation requirement is still observed insofar as the victim is obliged to prove that his injury was caused by the group consisting of the defendants. However, this line of argument is problematic because compensation claims are always directed against particular persons, as the damage can only be attributed to particular persons. If claims are directed against groups of people, the question arises as to how such groups are to be formed, and whether persons might not also be included with respect to whom there are not sufficient grounds for liability and thus whether the grounds for liability under tort law are not circumvented. If, for example, a pedestrian is knocked down by a motor vehicle in Vienna, and all that is known about said motor vehicle is that it had a Hungarian registration plate, declaring the group comprised of all Hungarian motor vehicles liable would certainly be out of the question. Naturally, this is not what Geistfeld is suggesting either; rather he limits the group to such persons as are responsible for a risk that was likely in the concrete situation to bring about the damage which was incurred. With that, however, Geistfeld too is in end effect pointing to the potential causation and the requirement of an acute, concrete risk for liability for damage. His conceptual approach is nonetheless valuable in that he makes it clear that the causation requirement is by no means simply discarded, rather one can speak of causation in the sense of a conditio sine qua non with respect to the group in which those who posed a concrete endangerment are collected.

5 / 82 It must also be pointed out that a perpetrator who has compensated the victim has a right of recourse against any jointly liable perpetrator, so that – presuming both perpetrators are solvent – in end effect each of them bears half of the damage. If one of the perpetrators is not solvent, then on the basis of the joint and several liability the other perpetrator, and not the victim, must bear this risk in full.

146On the related argumentation in English law see Oliphant, Alternative Causation: A Comparative Analysis of Austrian and English Law, Koziol-FS ( 2010 ) 801.

147U Pa L Rev 155 ( 2006 ) 460 ff.

each has only to compensate in part. In fact, therefore, solely the question of who bears the risk of insolvency is at issue: should this be imposed upon the victim or the potential tortfeasors ?

148See von Tuhr, Allgemeiner Teil des Schweizerischen Obligationenrechts I3 ( 1979 ) 94; Quendoz, Modell einer Haftung bei alternativer Kausalität ( 1991 ) 9 ff, 39; Wyss, Kausalitätsfragen unter besonderer Berücksichtigung der hypothetischen Kausalität, SJZ 93 ( 1997 ) 315, 317; Brehm in Berner Kommentar, OR VI / 1/33 Art 41 no 8 and 145; cf also St. Weber, Kausalität und Solida­ rität – Schadenszurechnung bei einer Mehrheit von tatsächlichen oder potenziellen Schädigern, HAVE 2010, 115. With a different opinion, however, Loser, Schadenersatz für wahrscheinliche Kausalität, AJP 1994, 964; Oftinger / Stark, Haftpflichtrecht I5 151.

149Von Tuhr, Allgemeiner Teil I3 94.

150See Koziol, Haftpflichtrecht I3 no 3 / 31.

5 / 85 The EGTL sets out in Art 3 : 103 para 1 of the PETL a liability in proportion to the degree of likelihood and thus a distribution of the insolvency risks between the solvent tortfeasors and the victim 151. Stark 152 has also hitherto advocated partial liability. He emphasises that in the case of alternative causation we are talking about liability without proven causation, and that thus milder consequences of liability are appropriate. A further argument is that otherwise the victim might have had to bear the insolvency risk alone in the event that it had been possible to prove that the insolvent wrongdoer had caused the damage: If both A and B come into question as perpetrators and A is insolvent, then the victim would not have been able to enforce his compensation claim at all if A had been the tortfeasor. The victim should not be entirely relieved of this potential risk if it is uncertain whether A or B caused the damage, ie if the tortfeasors are liable on the basis of merely potential causation.

The Austrian Draft has followed the approach of partial liability: the damage is to be apportioned between those who potentially caused it according the weight of the respective grounds for liability and the likelihood of causation ( § 1294 Austrian Draft ).

e.Event which would trigger liability and » coincidence « as competing causes

5 / 86 A variation of the mountain climber case will serve to illustrate this particular problem: the claimant K, a mountain climber, was hit and injured by a falling stone; at the same time another stone flew past, just missing his head. But in this variation of the example, the fall of one stone was caused by the carelessness of mountain climber B, whereas the other stone was knocked down by a chamois; however, it cannot be ascertained which stone was knocked down by the mountain climber and which by the chamois.

Other examples are certainly of more practical significance, especially those in the field of medical malpractice: after being discharged from hospital K falls ill. It cannot be established whether this illness is the result of a proven medical error or of his equally demonstrable medical predisposition. The English case Hotson v. East Berkshire Area Health Authority 153 is also illustrative. 13-year-old Hotson fell from a tree and was seriously injured; even had he received immediate, correct treatment his chances of recovery would only have been 25 %. However, the hospital only began the necessary treatment after a delay and the boy was disabled

151On this Oliphant in: Verschraegen ( ed ), Interdisciplinary Studies of Comparative and Private International Law I 197 ff. In favour Pfeiffer, Die Entwürfe für ein neues österreichisches Schadensersatzrecht – Fortschritt für Österreich und Vorbild für Deutschland ? ( 2011 ) 118 ff.

152Oftinger / Stark, Haftpflichtrecht I5 148.

153In 3 WLR 1987, 232.