Aneveryday case: An animal owner brings his sick animal to a veterinarian for treatment. In the course of the treatment, this animal injures the veterinarian.
The owner of the animal reported the injury to his animal owner's liability insurance for settlement of the claim. Up to now, the liability insurers often tried to avoid settling the claim by claiming that the veterinarian had put himself in danger by the treatment. This is a fundamental exclusion of the liability of the animal owner's liability insurance, as a case of § 833 BGB does not exist.
This legal opinion of the liability insurers, partly supported by case law, led to uncertainty among animal owners and veterinarians.
Now, the Federal Supreme Court (BGH) has decided otherwise in principle in its now published judgement of 17 March 2009, file number VI ZR 166/08:
An exclusion of the animal owner's liability due to acting at one's own risk cannot be considered as a rule if the injured party has exposed himself to the animal danger in order to perform tasks on the animal on the basis of a contractual agreement with the animal owner.
Therefore, the animal owner is liable, insofar as the factual liability requirements of § 833 p. 1 BGB are met, to a veterinarian who is injured by the animal's behaviour during treatment (here: horse kicking while taking a rectal fever).
Any behaviour of the veterinarian that is partly responsible for the injury can be taken into account to reduce the claim according to § 254 BGB.
In this regard, the judgment states:
Whether the behaviour of the person who exposes himself to the animal danger in accordance with the contract without being the keeper of the animal (§ 834 BGB) has contributed to causing the damage is to be assessed exclusively according to § 254 BGB. For a contributory negligence of the injured party that reduces the liability, however, it is usually the duty of the tortfeasor to present and prove the case, i.e. the animal keeper in the scope of application of § 833 BGB. The fact that the owner may not be able to provide sufficient evidence of the injured party's actions when handling the animal due to lack of knowledge does not justify a reversal of the burden of proof. In this respect, the injured party (veterinarian) has to provide specific information on his actions within the framework of his secondary burden of proof, and the tortfeasor then has to prove to what extent the information provided by the injured party is incorrect.
You can download the judgement with the facts of the case and the reasons for the decision at the end of this article.
Previous instances: LG Bochum, decision of 24.9.2007 - 6 O 162/07 - OLG Hamm, decision of 6.6.2008 - I - 9 U 229/07 -
© Goldberg Attorneys at Law 2009
Lawyer Alexander Goldberg
Specialist lawyer for industrial property protection
Specialist lawyer for information technology law (IT law)
