Report No. 85
West German.- the legislative framework.-In the Federal Republic of Germany, somewhat similar developments have resulted, but there have been achieved more by direct legislative provision than by judicial decisions. For tortious liability in general, the relevant articles of the Code of Civil (in West Germany) is Article 823, paragraph 1, of the Burger-liches Gesetzbuch (B.G.B.). It reads:-
"Anyone whose intentional or negligent act causes unlawful harm to the life, body, health, liberty, property or any other right of another is liable to make preparation for the resulting damage".
Article 823, paragraph 2 imposes on any person who infringes a statutory provision intended for the protection of others, the same obligation to pay compensation.
A special law-The Road Traffic Act-makes certain special provisions for traffic accidents in (West) Germany. Then, there is the work accidents insurance scheme. Hence, in general, in West Germany, compensation for injuries must be sought by either proof of fault under Article 823 of the Code Civil or by reliance on the Road Traffic Act of 1952, or by claiming under the work accidents scheme.
Apportionment on the basis of contributory negligence.- This is the position as to creation of liability. The question of its apportionment under section 254(1) of the Civil Code (West Germany) is also of interest. If the plaintiffs fault has contributed to the damage, then the defendant's obligation-and the extent of his obligation-depend upon the circumstances and, in particular, on how far the injury has been caused predominantly by one or the other party.1
1. Harding Fault in the French Law of Delict, (July 1979), Vol. 28, Part 3 ICLQ 525, 529.