Intervention de M. Fedtke

 

 

 

SÉMINAIRE “RISQUES, ASSURANCES, RESPONSABILITÉS“

“LES LIMITES DE LA RÉPARATION”

Groupe de travail : “Le temps et la réparation du préjudice”


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Question

 

How are personal injury cases involving subsequent changes in the health condition of the victim dealt with under Anglo-American and German law ?

 

Introduction

 

The question contains two kind of problems : a res judicata issue and a statute of limitations issue. In Germany, only the latter is of interest ; in the U.S. both problems are relevant.

 

United States

 

In respect of both questions, res judicata and statute of limitations, the core question is whether a cause of action includes injuries which develop later. The various jurisdictions give different answers. Once a cause of action arises in Virginia, the period of limitations starts running. The same considerations are likely to apply in respect of the res judicata. Pennsylvania recognizes a ‘two-disease rule’ that permits a plaintiff to commence separate causes of action for separate asbestos related diseases. Texas law has a different approach. Only probable injuries are included in the cause of action.

 

(1) Res judicata

 

“Under the centuries old, firmly settled doctrine of res judicata, a final judgement on the merits in one suit absolutely bars a subsequent suit involving the same parties, or their privies, as to all matters which were litigated, or might have been litigated, in the first suit, absent some extenuating circumstances.“[1] “Res judicata requires that the same claim or cause of action be attempted in the subsequent litigation.“[2] The “generally accepted“[3] test to determine the same cause of action is “whether or not the primary right and duty, and the delict or wrong combined are the same in each action.“[4] The core question here is whether a claim based on diseases that have occured after the first decision is the same cause of action, i.e. whether the concrete injury determines the cause of action and a subsequent injury establishes a new cause of action. While contemplating this question, one has to take into account the fact that a plaintiff is not permitted to split his claim.[5] Gideon v. Johns-Manville Sales Corp.[6] held :

 

“An actionable tort, whether based on negligence or strict liability, consists of two elements : a failure to act in accordance with the standard of care required by law and a resultant injury. While the sale of a defective product creates a potential for liability, the law grants no cause of action for inchoate wrongs. However egregious the legal fault, there is no cause of action for negligence or products liability until there is ‘actual loss or damage resulting to the interests of another.’[7]

 

While, therefore, ‘the threat of future harm, not yet realized, is not enough,’[8] once injury results there is but a single tort and not a series of separate torts, one for each resultant harm. The cause of action thus created is for all the damage caused by the single legal wrong, and a plaintiff may not split this cause of action by seeking damages for some of his injuries in one suit and for later-developing injuries in another.[9] The cause of action ‘inheres in the causative aspects of a breach of a legal duty, the wrongful act itself, and not in the various forms of harm which result therefrom (…).’[10] He does not have a discrete cause of action for each harm.

 

Gideon claims that, ‘as a result of working with each of the defendants’ asbestos products,’ he ‘has been seriously and permanently injured as the result of contracting asbestosis, lung cancer, pulmonary disease, possibly mesothelioma, and other related diseases now developed, in the developing stages or which will subsequently develop as a result of his contact with the asbestos products manufactured, sold and distributed by the various defendants.’

 

Gideon’s theory of recovery, supported by testimony in the record, is that he inhaled asbestos fibers while working with defective asbestos products. This initiated a scarring process that destroyed some of the air sacs in his lungs. Other changes occurred as the fibers worked through his lung tissues and lodged in the membrane surrounding his lungs, causing pleural thickening, plaques, calcifications, and asbestosis as well as the likely future development of mesothelioma and cancer. His injury is thus the inhalation of fibers and the invasion of his body by those fibers, thus causing him physical damage.

 

Under Texas law, therefore, Gideon has but one cause of action for all the damages caused by the defendants’ legal wrong ; the diseases that have developed and will in probability develop are included within this cause of action, for they are but part of the sequence of harms resulting from the alleged breach of legal duty.[11] Gideon could not split his cause of action and recover damages for asbestosis, then later sue for damages caused by such other pulmonary disease as might develop, then still later sue for cancer should cancer appear. His claim includes, without limitation, all damages for future pain and suffering, inability to work in the future, reduced life expectancy, future medical expenses, and future disabilities and diseases that will probably develop from present injuries.[12]

 

This seems to be a broad application of the res judicata doctrine, but the last half-sentence. Of the citation may be relevant. The action only includes damages for diseases “that will probably develop from present injuries.” Thus, unforeseen diseases might establish a different cause of action.

 

(2) Limitation

 

The same question arises under the statute of limitations. Generally, the limitation period begins to run when the cause of action has accrued. In cases of undiscovered harm, “many modern statutes and case decisions postpone the accrual date until the plaintiff discovers or should discover some of the relevant facts.”[13] The core question is whether a second disease establishes a new accrual. In Joyce v. A.C. and S., Inc.,[14] the Court of Appeals, 4th Circuit, held :

 

“The issue of accrual of a cause of action for latent asbestos-related disease was addressed by the Virginia Supreme Court for the first time [1204] in Locke v. Johns-Manville Corp., 221 Va. 951, 275 S.E.2d 900 (1981). (…) [In Locke, the plaintiff sought damages for malignant mesothelioma suffered as a result of occupational exposure to asbestos fibers between 1948 and 1972 ; the trial court held that Locke’s complaint, filed in 1978, was untimely because his exposure to asbestos had ended nearly six years earlier.]

 

Defining ‘injury’ (for purposes of § 8.01-230, the date on which a cause of action accrues) to mean ‘positive, physical or mental hurt to the claimant, not legal wrong to him in the broad sense that his legally protected interests have been invaded,’ the court held that Locke’s action was timely. 275 S.E.2d at 904-05. Stressing that it was not embracing a ‘discovery’ rule, the court noted that it is conceivable that in a given case the evidence will demonstrate that an injury occurred months or even years before the onset of symptoms and diagnosis. Id. at 905. Rather, observing that a cause of action involves three essential elements, (1) a legal obligation of a defendant to a plaintiff, (2) a violation or breach of that duty or right, and (3) harm or damage to the plaintiff caused by the violation or breach, the court held that a cause of action for personal injuries is keyed to the date of injury rather than the date of the wrongful act.[15] Id. at 904. To hold otherwise, reasoned the court, would ‘result in the inequity of barring the mesothelioma plaintiff’s cause of action before he sustains injury.’ Id. at 906.

 

The Locke court had no occasion to consider the further wrinkle presented by this case, i.e., assuming that the statute begins to run on the date of injury, whether it begins to run anew for each successive injury caused by the same wrongful act. Joyce argues that under Locke, a personal injury plaintiff has a separate cause of action and a separate two-year limitations window for each distinct injury caused by the plaintiff’s wrongful conduct, here exposure to asbestos. We disagree.

 

Virginia courts have long applied the rule that, for purposes of the statute of limitations, there is but a single, indivisible cause of action for all injuries sustained,[16] whether or not all of the damage is immediately apparent. A common articulation of the rule states that where an injury, though slight, is sustained in consequence of the wrongful or negligent act of another and the law affords a remedy therefor the statute of limitations attaches at once. It is not material that all of the damages resulting from the act should have been sustained at that time and the running of the statute is not postponed by the fact that the actual or substantial damages do not occur until a later date. Caudill v. Wise Rambler, Inc., 210 Va. 11, 168 S.E.2d 257 (1969), citing Richmond Redevelopment and Housing Authority v. Laburnum Construction Corp., 195 Va. 827, 80 S.E.2d 574 (1954). See also Louisville and Nashville Railroad v. Saltzer, 151 Va. 165, 144 S.E. 456, 457 (1928) (“Whenever any injury, however slight it may be, is complete at the time the [act or omission] is completed, the cause of action then accrues.”).

 

Nothing in the Locke opinion suggests that the Supreme Court of Virginia intended to depart from the indivisible cause of action theory. Rather, the court stressed that “[t]he rule we adopt today is but an application of our prior decisions (…) to the facts of the present case.” Locke, 275 S.E.2d at 906.

 

In a recent case, this court, applying Virginia law, held that Locke did not afford a personal injury plaintiff separate causes of action for distinct injuries caused by the same tortious conduct by the defendant. (…) The court went on to note that under Virginia law the statute of limitations does not accrue separately for each set of damages which results from a wrongful act. “Once a cause of action is complete and the statute of limitations begins to run, it runs against all damages resulting from the wrongful act, even damages which may not arise until a future date. (…)” Id. See also Large v. Bucyrus-Erie Co., 707 F.2d 94 (4th Cir.1983), affirming the district court’s grant of summary judgment for defendants, 524 F.Supp. 285 (E.D.Va.1981) (“Of course, the general rule in Virginia is that the limitations period begins to run when the initial injury, even if relatively slight, is sustained, and the manifestation of more substantial injuries at a later date does not extend the limitations period.” 524 F.Supp. at 289).

 

In this case, although the date of Joyce’s first injury – pleural thickening – is unclear, he does not dispute that it developed more than two years before this action was filed.[17] (…) Therefore, Joyce’s complaint seeking damages from the manufacturers for pleural effusion and parenchymal asbestosis, both of which were allegedly caused by exposure to asbestos, was not timely filed and was properly dismissed by the district court.

 

We recognize that this rule may effectively preclude recovery for serious injuries that develop more than two years after an initial hurt, however slight, given the difficulty of proving future damages when the fact and extent of future injury is unknown. Although the indivisible cause of action theory is readily justified in cases of traumatic injury, where all damages are generally immediately apparent, its result may be harsh when applied to asbestos-related or other ‘creeping disease’ cases where, by definition, there may be gaps between the onset of various distinct injuries caused by exposure to asbestos. We are not, of course, at liberty to modify the rule. Any change in favor of asbestos or other latent disease plaintiffs must come from the Supreme Court of Virginia or the General Assembly of that state.”

 

This decision makes clear that under Virginia law there is no way to recover for undiscovered injuries or injuries that develop at a later stage. While the Gideon court held that only the probable injuries are included in one cause of action, the Joyce provides no indication that Virginia law limits the scope of one cause of action in a similar way.

 

In other jurisdictions a ‘two-disease rule’ in asbestos exposure cases permits

 

“a plaintiff to commence separate causes of action for separate asbestos related diseases – one cause of action for a nonmalignant asbestos related disease which had become manifest and another cause of action for the subsequent development of a separate malignant disease such as lung cancer or mesothelioma.”[18]

 

The Pennsylvania supreme court explained that this rule

 

“was intended to remedy the inequities that arose in cases involving latent diseases that did not surface until years after the initial exposure. Prior to the adoption of the rule, the cause of action for asbestos exposure accrued at the time the first sign of asbestos-related disease was discovered, when the plaintiff might be unaware of the extent of the resulting harm. Based on the unique construct of these cases, we held that the diagnosis of asymptomatic pleural thickening had no statute of limitations ramifications regarding a claim alleging a nonmalignant physiological impairment.“[19]

 

Germany

 

Res judicata is not a problem in German law as the system does not prohibit a splitting of the claim. Res judicata applies only to the amount the plaintiff has requested for his injuries. Thus, the only question is the term of the statute of limitations.

 

The limitation period starts when the injured person has a claim and the claimant knows or could have known without gross negligence, that he has a cause of action. An action for damages requires that there is a loss.[20] It is not required that the plaintiff knows the amount of the loss ; it is sufficient that he knows (or could have known without gross negligence) that there is any loss at all.[21] According to the principle of ‘unity of loss’ (Schadenseinheit), a loss/injury that could have been foreseen does not trigger a new limitation period.[22] The plaintiff bears the burden of proving that the second disease could not have been foreseen.[23] Whether the damage could have been foreseen will be answered from an objective point of view,[24] but it is unclear whether the standard is that of an expert or of an average lay person.[25] When it is established that the damage could not have been foreseen, the period of limitation begins as soon as the plaintiff knows (or could have known without gross negligence) that the damage occurred and was caused by the defendant.[26] German Law is, therefore, similar to the law of Texas.

 

For German law it must be taken into account that the future damage is usually covered by a declaratory judgment (Feststellungsurteil). Thus, if the original expected injuries do not occur, the plaintiff will not get damages for them. If the injury gets worse the plaintiff can recover any additional loss.

 

English Law

 

The traditional approach of English law to the payment of damages, whatever the nature of the claim, is the award of a lump sum on a one and only basis. It was, however, always open to the parties to settle an action on the basis of periodical payments. Provided the settlement is based upon the periodical payment of portions of a nominal lump sum of damages, this offers fiscal advantages to both sides and such ‘structured settlements’ are not uncommonly made in more serious cases. The only exception to the general rule about the powers of the court was that under section 6 of the Damages Act 1996 the court may give judgment by way of periodical payments with the consent of both parties. This is to preserve the possibility of a ‘structure’ where the case has to go to trial on an issue of liability.

 

A radical change has been implemented with effect from 1 April 2005 and the coming into force of the relevant sections of the Damages Act 1996 (as amended). In summary, a court now has the power regardless of the wishes of the parties to make an order directing the compensator to make payment of part of the award by way of an ongoing series of future payments – periodical payments.

 

The amendments to the Damages Act 1996 mean that periodical payments for future pecuniary losses can now be ordered in a greater number of cases than before. In many cases, claimants will prefer a secure stream of tax-free index-linked periodical payments, guaranteed for life, to the alternative of a large lump sum (for past and for future losses), with the financial risks that investing brings and the worry that the money may run out, especially if the predicted life expectancy is exceeded. To prevent inappropriate use of periodical payments, section 2(3) of the Damages Act provides that a court may not make an order for periodical payments unless satisfied that “continuity of payment is reasonably secure.” Section 2(4) provides, in effect, three alternative statutory presumptions for continuity of payment being “reasonably secure.” The first, in relation to a public sector body, is a guarantee from a Government Minister (section 6 of the Act). Next, where periodical payments are to be made by an authorised insurer (either a self-funding liability insurer, or a life insurer under an annuity contract purchased by a defendant), there is protection by the Financial Services Compensation Scheme against the possibility of the insurer collapsing – this provides 100% protection, as opposed to 90% for policyholders in most other cases. The third statutory presumption is where “the source of payment is a government or health service body.” For England, the only health service body designated by the Damages (Government and Health Services Bodies) Order 2005 is the National Health Service Litigation Authority (NHSLA).

 

Structured settlements have little attraction now that the power to award periodical payments has been introduced. The Court of Appeal has opened the door to the use of more generous indexation in periodical payment awards in Flora v Wakom [2006] EWCA Civ 1103.

 

An order may, by Reg 2 of the variation order, include a power to make a variable order. A lay person might have expected that one purpose of a scheme of periodical payments would be to allow the amount of the payments to be varied in order to meet the claimant’s changing needs according to changes in his condition, changes in the way his needs are met and changes in the cost of meeting his needs. In fact the power to vary is very limited. A variable order can only be made if there is a chance that in the future the claimant will develop some serious disease or suffer some serious deterioration (this follows the provisional damages requirements) or a chance that the claimant will enjoy some significant improvement in his physical or mental condition. The court will then, as with provisional damages, make an award on the assumption that the disease, deterioration or improvement will not occur, and will specify the circumstances and period within which an application to vary can be made. There is a permission threshold before any application to vary can then be made.

 

Although the power to vary in the light of future events is extremely limited, there is in contrast an unlimited power under rule 41.8 to take account of future changes that can be foreseen at the time the order is made. So the order can make a change in the level of payments for lost income at retirement age. It can order an increase in the award for care in old age where there is evidence that the claimant’s needs will increase. Presumably it can order that care needs should be paid without a discount after the date when the claimant’s partner is unlikely to be able to continue to meet the need gratuitously, or can add the costs of residential care from an age when increased infirmity is likely to make this a need attributable to the accident injuries. This power may result in some very complex orders. It may also have the effect or drawing to the attention of the court the often neglected issue of difficulty and cost in coping with disability in old age, which may affect the assessment of lump sum awards also.

 

The duration of the periodical payments order is “for the duration of the claimant’s life, or such other period as the court orders.” Within the overall period there can be stages for increases and decreases. For example an award for loss of earnings can specify one rate until the claimant’s retirement age and a lower rate reflecting pension income after retirement. Interestingly, rule 41.8(3) envisages that the court might make an order for payments to continue after the death of the claimant in favour of the claimant’s dependants. Such an order makes an interesting new addition to the medley of lost years claims and Fatal Accidents Act claims where a disease or injury brings a shortened expectation of life. This power in addition might be appropriate to reflect the loss of widow’s pension benefits in a claim for incapacity which has caused a loss of pension without a loss of expectation of life.

 

It is not necessary to make an all or nothing choice : there is wide flexibility to divide an award between a lump sum element and a periodical payment element. Experience of structured settlements and provisional damages suggests that, except in cases of catastrophic injury, claimants often prefer the freedom to manage their affairs over the security of a lifetime guarantee of income. Insurers also tend to prefer to finalise a claim and will often pay a premium to settle claims on a final basis where a provisional award could be justified. The political imperative behind periodical payments is likely to be strong encouragement for a system which avoids the danger that severely injured claimant may run out of money and become dependent on state provision.

 

There is a distinction between a situation in which the parties do and do not consent. With the parties’ consent the court may award periodical payments for the whole of the award. Without consent the court’s power is limited to awarding periodical payments for that element of that award representing future pecuniary (financial) loss. However, the significance of this should not be underestimated. In particular, it is of course the case that the majority of the larger settlements are in the main comprised by awards for loss of future earnings or future care and assistance, i.e. future pecuniary loss. It is clear from the context in which the proposals were framed that the size of the conventional (lump sum) award or loss is a relevant factor. It is fairly obvious that the administrative and other expenses of setting up and maintaining a periodical payments order could not be justified in smaller cases. Furthermore, it was clearly in the mind of those responsible for public finances that this would be a way (particularly in clinical negligence cases) of reducing the immediate drain on the public finances. Furthermore, the disadvantages associated with lump sums are less significant with small and medium size claims. However, notwithstanding this neither the Rules nor the relevance Practice Direction suggest that the size of the award is a specific factor. Having made this point it would however seem to be clear from the relevant statistical material that there was reference to an initial benchmark of £250,000 with the anticipation that as periodical payments became more familiar and more accepted they would be increasingly used for lower awards with a suggested figure of £100,000.

 

There are two primary disadvantages with lump sum awards. The first is inaccuracy. A ‘once and for all’ award is made at a certain point in time and involves a considerable degree of crystal ball gazing as to the likely future needs of the injured claimant. Secondly, in view of the need to provide a future income stream the risk of investment is borne by the claimant. That risk may be regarded as not inconsiderable having regard to the recent performance of the financial markets, for example. There is no doubt that a periodical payments order will produce greater accuracy. There are no difficulties with estimates of life expectancy or other respective periods of future loss so the award will never run out before the need is exhausted or result in a windfall to a chance beneficiary such as a family member of the claimant. All the financial risks and uncertainty of future investment and financial performance are to be transferred from claimants to insurers who are presumed to be in a better position to bear such unpredictability.

 

A further major factor is the future duration of a periodical payments order. For somewhat technical reasons it is thought that periodical payments will be unlikely to have significant advantage where the period of future loss is less than 10 years. Other factors clearly involve the protection of the vulnerable so that special consideration would be given in the cases of children, patients, and those who whilst not patients exhibit special vulnerability, e.g. those with very severe physical difficulties or those whose personal or social ground could be regarded as making the management of a large lump sum risky.

 

There is another factor which may appeal to those whose primary function is the protection of public finances. In particular, the victims of accidents who receive a large lump sum award are currently able to fritter their awards away and thereafter to fall back on state provision. This would neither be an option nor a possibility in the event of a properly structured future periodical payments award. The court is required to take into account the preferences of payments of claimant and defendant and the reasons for such preference. It is not, however, required to act in accordance with those preferences.

 

It is anticipated that the judiciary will be enthusiastic for periodical payments. Some defendants, or their insurers, may be less happy. However, as the whole purpose of the system is to transfer future financial risks from the claimant to the insurer, it is to be expected that complaints about the extra risk to insurer, the greater cost of financing, or the complexity of administration will be likely to fall upon judicial ears which have become hard of hearing. On the other side of the coin, some claimants may prefer the initial, and superficial, attraction of a lump sum award.

 


[1] Speiser/Krause/Gans, The American Law of Torts, § 5.23, p. 188.

[2] Id. at p. 191.

[3] Id. at p. 191.

[4] Metropolitan Gas Repair Service, Inc. v. Kulik, 621 P.2d 313, 319 - Colo., 1980 ; see also Speiser et al., § 5.23 FN 51.

[5] Gideon v. Johns-Manville Sales Corp., 761 F.2d 1129, 1136, C.A.5 (Tex.), 1985.

[6] 761 F.2d 1129, 1136, C.A.5 (Tex.), 1985.

[7] Prosser and Keeton on Torts, § 30 at 165 (5th ed. 1984). See also Restatement (Second) of Torts, § 907 comment a. (1979) ; 12 Harper and James, The Law of Torts § 25.1 (1956).

[8] Prosser and Keeton on Torts, § 30 at 165.

[9] Missouri-Kansas-Texas R. Co. of Texas v. Pluto, 130 S.W.2d 1048, 1053 (Tex.Civ.App.1939), rev’d on other grounds, 138 Tex. 1, 156 S.W.2d 265 (1941) ; Press v. Davis, 118 S.W.2d 982, 996 (Tex.Civ.App.1938), modified 135 Tex. 60, 140 S.W.2d 438, 440 (1940) ; Restatement (Second) of Judgments § 25 comment c (1982) ; F. James and G. Hazard, Civil Procedure, § 11.13 at 557 (2d ed. 1977).

[10] Annot., 24 A.L.R. 4th 646, 650 (1983). See Landers v. B.F. Goodrich Co., 369 S.W.2d 33 (Tex. 1963) ; Southern Pacific Transport Co. v. State Farm Mut. Ins. Co., 480 S.W.2d 59 (Tex.Civ.App.1972) ; Garrett v. Mathews, 343 S.W.2d 289 (Tex.Civ.App. 1961).

[11] Texaco Country Club v. Wade, 163 S.W.2d 219, 223 (Tex.Civ.App.-Galveston 1942), no writ.

[12] E.g., Houston & T.C. Ry. Co. v. Fox, 106 Tex. 317, 320, 166 S.W. 693, 695 (1914).

[13] Dobbs, The Law of Torts, § 218.

[14] 785 F.2d 1200, C.A.4 (Va.), 1986.

[15] The Virginia statute of limitations was amended in 1985 to provide that actions for asbestos-related injuries or diseases accrue “when a diagnosis of asbestosis, interstitial fibrosis, mesothelioma or other disabling asbestos-related injury or disease is first communicated to the person or his agent by a physician.” Va.Code § 8.01-249 (Supp.1985).

[16] A well-established exception to the rule permits plaintiffs separate rights of action for personal injuries and property damage. See Caudill v. Wise Rambler, Inc., 210 Va. 11, 168 S.E.2d 257 (1969), Carter v. Hinkle, 189 Va. 1, 52 S.E.2d 135 (1949).

[17] Plaintiffs’ “Memorandum in Opposition of Celotex’ Motion for Summary Judgment,” at 3, n. 3.

[18] Zieber v. Bogert, 565 Pa. 376, 773 A.2d 758 - Pa., 2001 ; see also Simmons v. Pacor, Inc., 543 Pa. 664, 674 A.2d 232, 237 - Pa.,1996.

[19] Id.

[20] BGH NJW 1991, 2707, 2708 ; BGHZ 119, 69, 71 = NJW 1992, 2766, 2767 ; BGH NJW 1993, 1320 ; BGH MDR 2006, 178, 179 ; BGH DB 2006, 210, 211 ; AnwK-Mansel/Stürner, Rdn. 32 ; Bamberger/Roth/Spindler, § 199 Rdn. 27 ; Erman/Schmidt-Räntsch, Rdn. 8 ; Soergel/Niedenführ, Rdn. 19 ; Staudinger/Peters, Rdn. 22.

[21] BGHZ 119, 69, 70 f. ; BGH ZIP 2005, 1874, 1876 ; AnwK-Mansel/Stürner, Rdn. 32 ; Bamberger/Roth/Spindler, § 199 Rdn. 27 ; Erman/Schmidt-Räntsch, Rdn. 23 ; Soergel/Niedenführ, Rdn. 40.

[22] BGHZ 119, 69, 71 ; BGH NJW 1996, 1895, 1896 ; BGH NJW 1997, 2448, 2449 ; BGH NJW 2000, 861, 862 ; AnwK-Mansel/Stürner, Rdn. 32 ; Bamberger/Roth/Spindler, § 199 Rdn. 27 ; MünchK-Grothe, Rdn. 9 ; Palandt/Heinrichs, Rdn. 31 ; Soergel/Niedenführ, Rdn. 20 ; against this : Staudinger/Peters, Rdn. 37 ; see also Planck/Greiff, Anm. 2 b : the occurence of the damage is part of the tort action.

[23] Baumgärtel/Laumen/Prütting/Kessen, Handbuch der Beweislast (3rd ed), § 199 Rn. 5.

[24] BGH NJW 2000, 861, 862 ; BGH LM Nr. 114 zu § 852 a.F. = NJW 1991, 2350 ; BGH NJW 2002, 1414 ; AnwK-Mansel/Stürner, Rdn. 32 ; MünchK-Grothe, Rdn. 11 ; Palandt/Heinrichs, Rdn. 31 ; Staudinger/Peters Rdn. 35 ; against this Erman/Schmidt-Räntsch, Rdn. 23 : the plaintiffs point of view.

[25] Expert : BGH NJW 2000, 861, 862 ; AnwK-Mansel/Stürner, Rdn. 32 ; Palandt/Heinrichs, Rdn. 31 ; average person : Bamberger/Roth/Spindler, § 199 Rdn. 29 ; MünchK-Grothe, Rdn. 11 ; Staudinger/Peters Rdn. 35 ; BGH LM Nr. 114 zu § 852 a.F. ; BGH NJW 1995, 776, 777.

[26] BGH VersR 1968, 1163 ; NJW 1973, 703 ; BGH NJW 1997, 2448, 2449 ; BGH NJW 2000, 861, 862 ; AnwK-Mansel/Stürner, Rdn. 32 ; Bamberger/Roth/Spindler, § 199 Rdn. 28.