Section 823(1) of the German Civil Code (BGB) stipulates that anyone who intentionally or negligently unlawfully infringes the life, body, health, freedom, property or any other right of another person is obliged to compensate the injured party for the resulting damage.

According to Section 254 (1) of the German Civil Code (BGB), where the injured party has contributed to the occurrence of the damage, both the obligation to provide compensation and the extent of such compensation depend on the circumstances of the case, in particular on the degree to which the damage was predominantly caused by one party or the other.

On 2 June 2011 the plaintiff was climbing a wall at a climbing center and was secured from below by the defendant with a safety rope using the so-called ‘top rope’ method, in which the climbing harness is attached to the safety rope, which runs upwards and back downwards via a deflector on the wall. When the plaintiff reached the top and the deflector, the defendant released the rope brake – undisputedly without the plaintiff having first shouted the command ‘Stand!’ as required by climbing practice – and the plaintiff fell approximately 15 metres to the ground, sustaining serious injuries.

The climbing partner (appellant) requested that the first-instance judgment of the Regional Court be set aside. The claimant requested that the appeal be dismissed. Further arguments by the parties are not stated in the decision. 

The plaintiff suffered an injury to her body and health due to the defendant’s negligent conduct – namely releasing the rope brake without the plaintiff having first given the command 'Stand', as required in climbing practice.

The defendant unlawfully and negligently injured the plaintiff's body and health by terminating the safety measures he had undertaken for the plaintiff without justified cause by giving the command ‘Stand’ and releasing the rope brake, causing the plaintiff to fall to the ground.

The plaintiff is not guilty of contributory negligence to be taken into account pursuant to Section 254 BGB. A disclaimer of liability, as is sometimes the case in sports competitions, is therefore not possible, as there is no comparable competitive situation, but rather a clear division of tasks in a way that the climber can concentrate fully on climbing and the belayer can concentrate exclusively on belaying the climber.

In addition, when climbing in climbing halls and climbing parks, the routes are prepared, the associated risks are therefore intentional and predictable, and can also be controlled by the basic safety measures provided for the partner.

In any case, however, an exclusion or limitation of liability in accordance with the above principles is also out of the question because the plaintiff's fall was caused by a serious breach of the rules by the defendant. According to the defendant’s statements made during his personal hearing in the oral proceedings before the Regional Court, the plaintiff’s remark 'Okay' did not give the defendant any reason, based on the parties’ prior agreements, to end the plaintiff’s belay. Nor could an exclusion of liability on the basis of the principles of acting at one’s own risk be affirmed. In this regard, it is irrelevant whether the principles developed for competitive sports can, in individual cases, also be applied to other sports pursued jointly. According to the Chamber’s assessment, a fundamental prerequisite for an exclusion of liability is that the sporting interaction typically entails certain risks of injury. Such risks, however, were not present here, since the defendant - who remained on the ground - could and was required to concentrate solely on belaying the plaintiff, so that the attention demanded of him was not impaired by the joint sporting activity.

The inherent risks of climbing do not exclude liability for damages on the part of those who breach their fundamental duties to ensure the safe practice of the sport. In other words, the defendant, who remained on the ground, could and was required to focus exclusively on belaying the plaintiff, so that the attention required of him was not distracted by the parties’ joint sporting activity. He failed to do so and was therefore found liable. The plaintiff’s remark, “Okay,” did not, in light of the parties’ prior agreements, give the defendant any reason to stop belaying the plaintiff.

This approach can be expected in most jurisdictions even without the application of the German Civil Code.

In addition, the substance of the quoted provisions of the German Civil Code can be expected to be found in many jurisdictions.