XI. Germany

a) Brief Summary of the Facts

26The claimants, the owner of a horse and her liability insurer, claimed indemnification from the organiser of a horse show and a declaration that the organiser must bear all the costs resulting from the injury caused by the horse to a child. The horse show, which included a number of riding tournaments, was organised by the defendant on his grounds and could be attended by spectators without any access restrictions. The defendant made various meadows available in which the tournament participants could park their horse trailers. One of these meadows bordered on a path, which was used by participants and visitors during the tournament. In the meadow alongside the path, various agricultural machines were exhibited. Participants of the tournament had parked horse transporters and trailers behind these machines. It was here, in a space allocated to her by the defendant, that the horse owner, who was accompanying a tournament participant, had parked her vehicle and horse trailer.

27After the tournament, the horse was brought back into the horse trailer, tied up and secured from behind with a holding bar. The ramp at the rear of the horse trailer and hatches at the side of the front were open because of the high air temperature. The owner left the trailer unattended and there were also no horse show personnel supervising the area around the trailers.

28A child of about three years, who was attending the show with his parents, entered the trailer unnoticed and was hit on the head by the horse’s hoof and seriously injured. The horse owner’s insurer indemnified the child. The case decided by the Bundesgerichtshof (BGH) concerned the allocation of liability between the horse owner and the horse show organiser, with the organiser arguing that he was not responsible for the tragic accident as the child’s parents should have supervised the child more carefully.

29The Landgericht (LG) Freiburg dismissed the action.^[78] The Oberlandes­gericht (OLG) Karls­ruhe, however, held that the defendant was obliged to reimburse the insurer one-third of all payments made to the child and to indemnify the horse owner in case she was subject to a claim by the child to the extent of one-third of the value of such claim.^[79]

b) Judgment of the Court

30The defendant’s appeal to the BGH was successful. The BGH upheld the Land­gericht’s decision to dismiss the action on the basis that the defendant was not jointly and severally liable with the horse owner pursuant to §§ 840, 426 BGB, as the organiser was not liable to compensate the injured child on the grounds of §§ 823(1), 31 BGB.

31The Bundesgerichtshof argued that the horse show organiser did not have to take any precautions to prevent the toddler from getting into the horse trailer parked nearby the tournament area.

32Generally speaking, a person who creates a source of danger is obliged to take the necessary and reasonable precautions to prevent harm to others as far as possible. The legally required safety requirements include those measures that a prudent and reasonable person, exercising caution within reasonable limits, would consider necessary and sufficient to protect others from harm. A person allowing a dangerous situation to unfold in his or her area of responsibility is also liable for road safety.^[80] It was therefore obvious that the defendant was responsible for taking precautions against those visitors on the road or on the adjacent meadows coming to harm.

33However, the BGH highlighted that not every abstract danger can be prevented. Therefore, it was necessary to take only those precautions which are reasonable in light of the danger. The standard of care required is satisfied if the necessary degree of safety is achieved. Therefore, it is sufficient to apply those safety precautions that a reasonable, prudent, careful and conscientious member of the relevant community would consider sufficient. If harm does exceptionally occur in such cases where a risk was only to be feared under particularly peculiar and remote circumstances, the injured party must bear the loss itself.^[81]

34Considering the setting of a horse show, the BGH was convinced that a small child under four should have been supervised by his parents in such a way that he was not left out of sight and could be taken by the hand immediately if necessary.^[82] Therefore, the defendant was entitled to rely on the fact that small children would be supervised and would be stopped from entering the show participant’s parked horse trailers. The case was distinguished from cases in which landowners had had to take additional safety measures because it was obvious that a certain danger zone offered a particular incentive for children to play there.^[83]

35It is also settled case law that every landowner must protect children from the consequences of their inexperience and imprudence if he or she knows or should know that they are using his land to play and if there is a risk that they may come in close contact with dangerous objects.^[84] Against this background, during the proceedings it was especially disputed whether the defendant should have taken further precautions to prevent children from entering the parked horse trailers. In particular, the plaintiffs argued that the defendant should have secured the parking area, for example by dispatching personnel to supervise the area. The plaintiffs argued that such measures were appropriate as small children can escape from the supervision of their parents. However, the BGH found that such measures would only be necessary if the horse show organiser had known that children were actually present in the parking area without authorisation and not under the supervision of their parents. In that case, additional supervision could have been appropriate. However, if the operator was not aware of this, he should not have had to expect underage children to be unauthorised and unsupervised in the area with parked horse trailers because of the close supervision obligation of the authorised adults. The BGH did not find any evidence that the defendant knew or should have known that unsupervised children played near the horse trailers.^[85]

36Further, the BGH recalled that additional supervision by the defendant would have left the parents’ original duty of supervision unaffected. The person responsible for ensuring safety may rely to a degree on the fact that those responsible for a child will exercise a minimum of careful supervision. The trust in the performance of the duty of supervision by those responsible for it has an effect on his or her duty to safeguard. If dangers to children are neutralised to a degree by the required supervision of a third party, the safety expectations of the property owner, who may rely on such supervision, are accordingly reduced.^[86]

37The extent of the required supervision of minors is determined by their age and character, whereby the limit on the necessary and reasonable measures is determined by what reasonable parents should do in the specific situation in order to prevent harm. Young children up to the age of four need constant supervision so that they do not expose themselves to dangers in their environment which they cannot yet recognise and control due to their inexperience and imprudence. These dangers can arise from circumstances that are completely harmless for everyone else.^[87]

38In circumstances in which the supervision of small children is carried out incompletely, this represents a failure of supervision on the part of the parents or other persons entrusted with such supervision. The mere possibility of such a failure does not impose on the landowner responsible for road safety the duty to counteract the dangers arising from such supervisory failures. There is only cause to do so if there are concrete indications of a special risk, a risk which the BGH could not identify in the case at hand.^[88]

39In addition, the BGH ruled that a diligent horse show organiser did not have to take additional measures to prevent older children, who must not constantly be ‘kept at bay’ but who might nonetheless still not have a sufficient awareness of danger, from entering the area where the horse trailers were parked without proper supervision. As the danger arising from the open horse trailers was obvious not only to the defendant but also to the visitors of the horse show, the parents of these children should have kept them away from that area. Even the possibility that an older child might suddenly ‘escape’ from supervision did not make the horse show owner responsible for the accident.^[89]

c) Commentary

40The decision complements the existing case law on parental duties of care and the duty of care of a third person controlling specific risks for children. The scope of supervision duties is essentially based on the age, character and nature of the child. The BGH made clear that children up to four years of age may not be given free space and require constant supervision. Furthermore, it is assumed that the more dangerous the actual situation, the higher the duty of supervision. In particular, the BGH clarified that if no special circumstances exist, persons responsible for road safety may rely on parents to fulfil their supervision duties sufficiently. To assess the scope of the parental duty of care and the defendant’s duty to ensure safety for the show’s visitors, the BGH applied the criterion of general duties of care (allgemeine Verkehrssicherungspflichten) to balance the obligation of the parents to supervise children and the obligation of the landowner to take measures to ensure road safety.^[90] This criterion represents a suitable way to allocate liability in light of the dangerousness of a situation.

41The generalised statement that children under the age of four always require constant supervision disregards the individuality and diversity of children. The assumption is nonetheless justified from the point of road safety and a fair distribution of liability. In this context, the point of view that greater danger is also accompanied by an increased duty of supervision deserves particular support. Therefore, parents must pay particular attention to their duty of care when attending a horse show. This is, amongst other things, due to the fact that horses are extraordinarily large and strong animals compared to children. Also, children are regularly inexperienced in dealing with them and can therefore easily put themselves in danger. This is especially the case if the horses are exposed to great stress at a horse show, which makes their behaviour all the more unpredictable and dangerous. Therefore, the overall rationally justified decision in differentiating parental supervision duties deserves approval.

a) Brief Summary of the Facts

42A building insurer asserted a derived claim against a plumber for loss suffered by a building owner. In 1995, the plumber installed water taps in a newly built gymnasium. In 2009, leaks were found at seven taps in the building. The leaks were caused by the defendant’s improper installation of the tap extensions. This had caused water to leak from the pipes, which had spread behind the wall sealing and into the floor construction and which caused moisture penetration. Despite the moisture penetration, the sports hall was usable at all times in its entirety for its intended purpose.

43All tap extensions were replaced by the building owner. The insurer claimed compensation for the damage resulting from the defective installation which caused water penetration in parts of the building including the walls and floors with approximately € 200,000 assessed for repair/renovation measures.

b) Judgment of the Court

44As the liability of the plumber could be based on the contract concluded with the building owner as well as on tort (under German law, the two systems of liability do not exclude each other), the BGH reiterated that the rules of tort liability are not superseded by the rules of contractual liability. Rather, both systems follow their own rules, which should safeguard different interests.^[92] Whereas tort liability protects the Integritätsinteresse, ie remedy harm to property or other legal interests, such as life or bodily integrity, liability for improper performance of a contract ensures that the contractual partner receives compensation which is equivalent to the intended use of the acquired good or service (Äquivalenz­interesse). If the asserted damage corresponds with improper performance, there is no room for an additional claim under tort law. In such a scenario, the acquired goods or services were defective from the start and thus the defect is the only loss which can be remedied under contract law. There is no room for an additional tort claim as the person who acquired the defective goods or services never had unimpaired property and thus the rules of tort law do not apply. Only if the damage goes beyond the defect, for example by damaging other pieces of property, may an additional tort claim arise.^[93]

45In the case decided by the Bundesgerichtshof, the separation of contract and tort claims is not as simple as it looks at first sight because the plumber rendered a defective service, meaning that the owner of the building never had properly installed water taps. According to the BGH, the determination of whether the interest in integrity or only the interest in performance is impaired depends on whether, from an economic point of view, the defect affects the entire object for which damages are sought, for example if the object as a whole could not be used for its intended purpose. If this is the case, the injured party can assert only contractual claims. If the original defect however damages further parts of the product that were not defective before the work was carried out, there is a claim in tort. The BGH clarified that these principles initially developed in product liability cases also apply to the liability of a contractor rendering services.^[94]

46Whereas the lower courts did not see room for a tort claim, the Bundes­gerichts­hof argued that it was possible to replace the tap extensions without destroying other components of the building and that the gymnasium could be used even after the defective service was rendered.^[95] In addition, the Court rejected the argument that compensation under tort law could not be made in respect of other parts of the building damaged by water because the pipe extensions had (also) served to protect these parts of the building (which could be damaged by the defective installations of the water taps). The BGH pointed out that such an interpretation would render the dividing line between contract and tort cases meaningless (as there would never be room for tort claims alongside a contractual claim) given that every service on a building would prevent other parts of the building from being damaged as the functioning of every building relies on the proper interaction of its individual components.^[96]

47As the building owner’s tort claim against the plumber was also not time-barred, the BGH annulled the judgment of the lower court and remanded the case back to the Oberlandesgericht Rostock.

c) Commentary

48The BGH affirmed its view on the relationship between contract law and tort law. In case of Stoffgleichheit (material equality) between the defect and the damage caused, the BGH highlighted that the loss can only be remedied by contract law and that there is no additional tort claim. Things are different if the damage goes beyond the improper provision of a service as the additional loss can also be claimed under tort law.

49The BGH’s clarification that, in the case of buildings, the criterion of broad contractual protection cannot necessarily be extended across the board to every case of non-compliance deserves approval. Otherwise the protective purpose of tort law would be eroded and absorbed by contract law. In sum, the judgment is good news for building owners, as contractual claims against plumbers are time-barred after five years if the plumber’s work is work on a building (§ 634a(1) no 2 BGB). The limitation period starts with the acceptance of the work by the contractual partner (§ 634a(2) BGB) so, in the case at hand, the claim was time-barred when the damage was discovered. The limitation period for tort claims is generally three years but this period only starts at the end of the year in which the claim arose and in which the victim knew or could have known of the circumstances giving rise to the claim (§ 199(1) BGB). The limitation period thus starts only when the water damage was detected or could have been detected by a prudent party, which gives the building owner the chance to determine the cause of the damage and suspend the limitation period by negotiating with the tortfeasor (§ 203 BGB) or by instituting legal proceedings (§ 204 BGB).

a) Brief Summary of the Facts

502021 saw another BGH judgment in the Dieselgate saga.^[98] The plaintiff sued VW, the manufacturer of the car, for compensation for damage caused by an improper ‘defeat device’ which had inhibited the effective measurement of emissions. The claimant had bought a second-hand VW vehicle equipped with a diesel engine of the type EA189, Euro 5 emission standard, at a purchase price of € 26,900 from a car dealer­ship which was a subsidiary of the defendant. The vehicle was equipped with a control device by the defendant, which, in 2015, had been classified as an illegal defeat device by the German Kraftfahrt­bundes­amt (Federal Motor Transport Authority). The defendant recalled all affected vehicles in order to install modified software. The claimant’s vehicle was subsequently adjusted. Arguing that the software update did not make good the damage caused, the buyer demanded damages in the amount of approximately € 20,000 (purchase price plus finance costs minus benefits for use) and offered to return the vehicle to the seller. Amongst other arguments, the plaintiff argued that the car producer had intentionally inflicted damage ‘against good morals’ upon the buyers of cars with the defeat device so that his claim could be based on § 826 BGB.

b) Judgment of the Court

51The BGH clarified that, contrary to the assumption of the lower court, the Oberlandes­gericht Koblenz, a claim according to § 826 BGB does not fail because the plaintiff bought the vehicle manufactured by the defendant as a second-hand car. The OLG Koblenz had argued that the defendant could only be held liable for breach of § 826 BGB for putting new cars with the defeat device on the market and not when a second-hand car was resold as only in the first scenario had the defendant received an economic benefit. The Bundes­gerichts­hof pointed to a recent landmark judgment,^[99] in which the court had held that the conduct of the defendant must also be seen as an intentionally inflicted loss ‘against good morals’ vis-à-vis the buyers of second-hand cars given that the car producer damaged all uninformed buyers of vehicles fitted with a defeat device.^[100]

52Furthermore, the BGH affirmed that if someone is induced by unlawful means to conclude a contract that he or she would otherwise not have concluded, this person may suffer pecuniary loss even if the performance is worth the purchase price, provided that the performance is not fully usable for the buyer’s purpose. In such a scenario, the injured party must be able to free him- or herself from the contract which, from the buyer’s perspective, is an unwanted obligation (unge­wollte Verpflichtung). In addition, such an unwanted contract must be regarded as the damage to be compensated pursuant to § 826 BGB. This damage did not cease to exist because the value or condition of the contract’s object subsequently changed. In particular, the installation of a software update did not retroactively turn the unwanted contract into a wanted one even though the defeat device was removed.^[101]

c) Commentary

53This decision approves the BGH’s judgments handed down on the diesel emission case in 2020. The court’s clarification that purchasers of second-hand cars are just as worthy of protection as purchasers of new cars deserves approval, given that the conduct ‘against good morals’, ie the marketing of the car with a defeat device, caused losses to all buyers of such cars.

54It can be predicted that the diesel emission scandal will continue to keep courts busy in 2022 as the case law handed down so far does not cover all types of engines, devices and car manufacturers. In August 2021, even a temporary ‘auxiliary Senate’ was established to deal with appeals in tort cases based on the allegation of improper defeat devices in cars with diesel engines. In a recent judgment, the BGH dismissed an action brought against Mercedes Benz where the device incorporated into the car (a so-called thermal window) controlled the exhaust gas recirculation system based on the outside temperature. The Court left open the question whether this was an improper defeat device because in any event the defendant’s conduct in equipping the diesel engine with this particular device could not be qualified as ‘against bonos mores’.^[102]

a) Brief Summary of the Facts

55The plaintiff is an investor and the defendant operated the blog ‘www.aktienversenker.de’. A considerable part of numerous blog posts dealt with the plaintiff and his allegedly incorrect decisions and embarrassing conduct. Amongst other things, the defendant referred to the plaintiff as a ‘stock market loser’ (Börsen­ver­sager) and a ‘corporate raider’ (Firmen­räuber). In addition, the plaintiff alleged that the defendant had offered several times to stop the blog in exchange for payments so that the various negative blog posts were essentially used as a means of criminal blackmail (Erpressung) against him. The plaintiff claimed for injunctive relief against the defendant and monetary compensation for the infringement of personality rights.

56The LG Berlin sided largely with the claimant^[104] but, upon appeal, the Kammer­gericht Berlin (KG Berlin) dismissed the action.^[105] The appeal to the BGH was successful.

b) Judgment of the Court

57The litigation concerned the question of whether the defendant had violated the plaintiff’s allgemeines Persönlichkeitsrecht, which the BGH answered in the affirmative. As the lower court had stated that the defendant had repeatedly demanded the payment of sums up to € 400,000 from the plaintiff to stop the ‘campaign’ against the investor, the BGH held that the blog was used as a means for (attempted) blackmail so that the plaintiff could demand that the defendant cease the activities directed against him in the blog based on §§ 823(1), 1004 BGB.

58The defendant had violated the plaintiff’s allgemeines Persönlich­keits­recht, more precisely the plaintiff’s honour, by using defamatory expressions in the blog.^[106] The use of such expressions was also unlawful. Whether a person’s all­ge­meines Persönlichkeitsrecht has been violated cannot be defined in absolute terms. Rather it must be determined by weighing the conflicting interests protected by the fundamental rights enshrined in the German Constitution as well as the affected fundamental rights and guarantees of the European Convention on Human Rights (ECHR). The infringement of the general personality right is only unlawful if the interest of the person concerned in protection outweighs the interests of the other party which are worthy of protection. Against this background, the BGH clarified, in line with the case law of the German Bundesverfassungsgericht and the European Court of Human Rights, that the blog’s legality should be measured against the protection of the plaintiff’s honour guaranteed by art 2(1), 1(1) GG and art 8 ECHR and the defendant’s freedom of expression as per art 5(1) GG and art 10 ECHR. In balancing the plaintiff’s interest in the protection of his honour with the defendant’s right to freedom of expression, the BGH sided with the plaintiff as the blog served – as far as the lower court had dealt with the issue – as a means of coercion for attempted blackmail to the detriment of the plaintiff.^[107]

c) Commentary

59The BGH affirmed its case law on violations of the allgemeines Persönlichkeits­recht and once again applied the general principles developed in the offline world to online blogs. The decision makes it clear that the interests of blog operators that use abusive language as a bullying strategy against individuals will usually not prevail. It had not yet been proved that the blog had indeed been used as a means of a criminal activity (attempted blackmailing), however, the BGH held that even if the lower court found that the blog had not been used as part of a criminal strategy, that did not mean that it was lawful. Rather the German Supreme Court has made it clear that blogs which have no real information function apart from bullying individuals are not operated lawfully.

a) Brief Summary of the Facts

61The claimant claimed damages from the defendant liability insurer of a truck. The plaintiff had inspected a truck offered for sale. The vehicle was no longer registered for road use and was parked on private property. As it could not be started, it was connected to another truck battery via a jumper cable. When the claimant tried to start the vehicle this way, the truck’s battery exploded and injured him severely. The claimant claimed, inter alia, compensation for loss of earnings, travel expenses and a declaration of compensation for future damages from the truck’s liability insurer. The defendant refused to indemnify the claimant, as the starting procedure had been a particularly dangerous situation. The claimant should not have tried to start the car with a jumper cable but should have brought the truck to a garage for repair.

62As the plaintiff did not have sufficient funds for a lawsuit, he applied for legal aid (Prozess­kosten­hilfe). Within the proceeding for the grant of such financial support, the prospects of success of the claim are assessed on the basis of the facts presented and the evidence offered only by way of a summary examination. The LG Leipzig refused to grant legal aid.^[112] The appeal to the OLG Dresden was successful as the court held that the intended legal action of the plaintiff had sufficient prospects of success within the meaning of § 114 Code of Civil Procedure (Zivil­prozess­ordnung, ZPO).

b) Judgment of the Court

63On the basis of the plaintiff’s submissions, the Oberlandesgericht Dresden assumed a presumably successful claim according to § 823(1) BGB, § 7 StVG, § 115 VVG.

64Pursuant to § 115(1) no 1 VVG, a third party can assert his or her claim directly against the car’s liability insurer as such insurance is mandatory in Germany. An insurer has, however, only to step in if the damage to a person or to property occurred during the ‘use’ of the vehicle (durch den Gebrauch) as only this risk must be insured according to § 1 PflVG. The concept of ‘use’ enshrined in § 1 PflVG goes beyond the concept determining liability under § 7 StVG, which limits liability to damage caused operating (bei dem Betrieb) the car. As the OLG confirmed, the insurance under § 1 PflVG must cover damage caused by every action that is directly connected with the purpose of using the vehicle or its equipment.^[113] Regarding the use of the vehicle, the special risk of motor vehicles is decisive. All dangers typically associated with its use are covered.^[114]

65Applying these general principles, the OLG found that it was likely that the insurer had to indemnify the claimant. The damage occurred when the battery of the insured vehicle exploded during the starting process. The battery was not simply used as a source of energy but the claimant wanted to start the car to test whether it could still be driven. Therefore, the explosion was a danger emanating from the vehicle, or more precisely from the car’s obviously defective and explosive battery, which justifies treating the starting process as ‘use’ of the vehicle.^[115]

c) Commentary

66This court order supplements the existing case law on interpreting risks emanating directly from vehicles on the grounds of § 1 PflVG. The court clarified that the explosion of the battery of an insured vehicle during the starting process can be linked to the use of the insured vehicle, even if the vehicle is not registered anymore and is parked on private property and the starting process is supported by another vehicle.

a) Disinfection Costs

73One line of cases concerns disinfection costs for things (regularly cars) that were damaged by the tortfeasor and repaired by a third party. Often the repair companies charged a fee for disinfection of the car (prior to or after the repair took place).

74Many courts held that the tortfeasor or their insurers did not have to pay for the disinfection after the damaged car was repaired as the disinfection and hygiene measures were too remote to be attributed to the tortfeasor. Amongst other courts, the District Court (Amtsgericht, AG) Stuttgart declined to find that such damage is adequately caused by the tort.^[130] In particular, the court emphasised that these potential losses are a result of the peculiar and unusual circumstances of a pandemic caused by the COVID-19 virus, which statistically usually occur only once in a period of 100 to 1,000 years. Therefore, the court regarded the pandemic as an improbable circumstance ultimately not leading to disinfection costs being incurred on the occasion of the accident. The AG Kassel considered the question of additional disinfection and hygiene measures after the repair on the grounds of § 249 BGB.^[131] The court highlighted in particular the need to reimburse necessary repair costs that appear from the point of view of a reasonable person in the situation of the injured party in order to remedy the damage and also dealt with the aspect of contributory negligence (§ 254 BGB). The court assumed that disinfection and hygiene measures after the repair of a car are not necessary costs for protective measures. The disinfection and hygiene measures were not required in order to repair the damage caused by the car accident. In addition, they served neither the customer nor were they covered by the customer’s repair order. The court held that the disinfection measures are not connected to the repair job and merely acknowledged their necessity for protecting the employees. In addition, some courts also rejected the recoverability of a COVID-19 ‘flat-rate’ of around € 30 or € 60 for disinfection of contact surfaces in the interior of the car after the repair as disproportionate in relation to the usual effort of cleaning.^[132]

75It seems that the courts’ hostility towards allowing claims for compensation for such disinfection costs is also encouraged by the observation that such disinfection costs are regularly not charged in other areas where there is direct contact between service providers and customers, for example in restaurants or with regard to repairs carried out by craftsmen in customers’ homes. Rather, such fees are prominent in industries where an insurer steps in to cover the damage, such as is the case after car accidents.^[133]

76There are however also courts arguing that disinfection costs should be reimbursed. The AG Heinsberg held that in times of the COVID-19 pandemic, a hygienic cleaning after a vehicle has been repaired and touched by third parties is necessary for health reasons.^[134] In addition, the LG Stuttgart assumed that the injured party may expect the disinfection of the essential contact surfaces after the repair of the vehicle.^[135] This court held that, amongst other things, the steering wheel, gearshift and handgrip are essential surfaces and argued that the interest of the tort’s victim in not exposing him-/herself to infection is particularly worthy of protection considering the severity of a potential COVID-19 infection. Further, the court estimated disinfection costs in the amount of approximately € 30 as proportionate for regular cases.

77To conclude, some courts have granted damages for disinfection and hygiene measures to the injured party^[136] but many did not.^[137] As a result, the overall case law on disinfection and hygiene costs after the repair is still inconsistent and controversial.

b) Compensation for Pain and Suffering

78Further, one lower court granted damages in the amount of € 250 to a ‘victim’ who was deliberately coughed at by the tortfeasor, even though it remained unclear whether the victim was infected with the coronavirus at all.^[138] In this case decided by the AG Braunschweig, the plaintiff worked for the city of Braunschweig and was in charge of enforcing the corona measures imposed by public bodies in public spaces. Under these rules, only a limited number of people were allowed to be present at a city market at the same time. As the defendant entered the market without the permission of the security personnel and apparently by bypassing a longer queue with people waiting for the permission to enter, the plaintiff approached the defendant and instructed him to leave the market and to queue properly. In the course of the following argument about this order, the defendant deliberately coughed – from a distance of around one metre – several times into the plaintiff's face as he disliked the order. As a consequence, the plaintiff went into a voluntary self-quarantine for 14 days and suffered from sleepless nights for at least a week due to the uncertainty about a possible COVID-19 infection and the resulting psychological stress. The plaintiff however did not take a COVID-19-test, so it remained unclear whether he had caught the virus at all.

79The AG Braunschweig argued that coughing on someone constitutes an injury to health and bodily harm in the sense of § 823(1) BGB. This interpretation of the law is not very convincing. As the plaintiff did not show any physical reaction, an interference with bodily integrity cannot be assumed. And given that it was even unclear whether the defendant carried the coronavirus (let alone whether it was transmitted by the coughing), even an injury to health is questionable. The psychological stress suffered by the plaintiff is merely based on the danger that coughing may transmit the virus but this alone is not a violation of the plaintiff’s health. The mere risk that one might have caught an illness should not suffice to amount to an injury to health.^[139] To be able to grant compensation in ‘coughing cases’ in which no infection can be proven, the court should have discussed a violation of the plaintiff’s dignity as part of the allgemeines Persönlichkeitsrecht. Coughing at somebody has, in times of a pandemic, a similar effect as, for example, spitting at someone in normal times and can thus lead to a claim for money for pain and suffering even though it does not cause damage to health or bodily harm.^[140] But even this reasoning might be flawed because coughing at somebody will often not have a similar effect as spitting, where it cannot be proven that at least some ‘particles’ came into contact with the victim.

80Finally, the Landgericht Köln dismissed an action for pain and suffering brought by the parents of a three-year-old child against the authority that ordered the child to go into quarantine after another child in the same kindergarten tested positive. The claim was rejected because the order was in accordance with the law.^[141]

c) No Discrimination by Face Mask/Medical Certificate Control upon Entering a Shop

81In Germany, a substantial number of people argue that COVID-19 is no more than a type of flu and that the measures to contain the virus are grossly exaggerated. For these people, wearing a face mask is a significant burden. But there are also people who, for medical reasons, are exempt from wearing a face mask. During the pandemic, customers could only enter shops if wearing a face mask (mouth-nose-protection) or upon presentation of a medical certificate indicating that for medical reasons they are exempt from wearing a face mask.

82A customer claimed that the mandatory presentation of a medical certificate exempting him from the mask requirement when entering a shopping centre represented an impairment of participation in society as prohibited by § 19 General Act on Equal Treatment (Allgemeines Gleichbehandlungs­gesetz, AGG) and a violation of the allgemeines Persönlichkeitsrecht. This claim was for good reason straightforwardly rejected by the Landgericht Kiel. The court held that shop owners are authorised to make the admission conditional on the presentation of a medical certificate showing an exemption from the mask requirement.^[142] The court clarified that the presentation of a medical certificate does not constitute an impairment of participation in society pursuant to § 19 AGG. In particular, the pandemic constituted an objective reason for different treatment on the grounds of § 20(1) AGG. Further, a violation of the allgemeines Persönlich­keits­recht required a serious infringement of this right, which the court could not find in the case at hand.