According to the facts of the case on which the decision was based, the plaintiff was employed as nurse in a retirement home. Prior to the start of her shift, she parked her car outside of the retirement home’s premises and walked to a side entrance of the retirement home where she slipped, already on the premises, on an icy patch and suffered a fracture of her external ankle.
German Feder Labor Court (“BAG”), decision of November 28, 2019 – 8 AZR 35/19
Previous instance: Rosenheim Labor Court, March 27, 2018 – 1 Ca 1407/17; Munich regional labor court, decision of November 27, 2018 – 7 Sa 365/18 -
The plaintiff’s accident constitutes a work-related accident pursuant to Art. 7 SGB VII. The plaintiff received injury benefits from the statutory accident insurance. Furthermore, the plaintiff had claimed from her employer damages for pain and suffering and compensation for material damage.
The previous instances dismissed the action. The appeal before the BAG was not successful.
The so-called liability privilege pursuant to Art. 104 Sec. 1 sentence 1 SGB VII applies in favor of the employer. According to such privilege, the entrepreneur is only liable for an insured event pursuant to Art. 7 SGB VII if he caused the insured event deliberately or on a way insured pursuant to Art. 8 Sec. 2 Nr. 1 to 4 SGB VII. Since the accident occurred on the business premises, it did not constitute a commuting accident; therefore, the court only had to verify whether or not the accident had been caused deliberately.
In this context, the BAG expressly stated that the assumption of a deliberate procurement of an insured event requires a “double” deliberate intention which must refer not only to the act but also to the success of the damage. In the present case, there is no indication that the defendant’s legal representative had any intention as to a successful damage to the plaintiff. In this context, the defendant’s failure to strew sand or salt on the path to the side entrance would not constitute a deliberate intention.
The liability privilege relates to all bases for liability pursuant to German civil law, including strict liability (Gefährdungshaftung) and therefore also excludes claims for damages and damages for pain and suffering.