Trainees are liable in the event of damage regardless of age BAG 19.03.2015 - 8 AZR 67/14

The plaintiff and the defendant were employed as trainees in a car workshop and were in the room with another employee on 24.02.2011 when the defendant threw a 10g weight behind him without looking around first. In doing so, he hit the 17-year-old plaintiff, who was standing a few meters away, in the left eye and left temple. The plaintiff then had to be treated by a doctor several times. He suffered permanent damage in the form of a corneal scar. The plaintiff receives a pension of €204.40 per month from the employers' liability insurance association for this. According to the defendant's statement, he wanted to throw the weight into the collection container, but it was a few meters away from the plaintiff.

After the defendant had been ordered to pay € 10,000 by the labor court, the regional labor court accepted a claim for damages for pain and suffering of € 25,000. The defendant's appeal to the eighth senate of the Federal Labor Court was unsuccessful. According to § 105 para. 1 SGB VII and § 106 para. 1 SGB VII, a work process as an operational activity leads to the exclusion of liability of the employee. However, the judges did not consider the defendant's actions to be an operational activity, but a culpable act. Nevertheless, the defendant cannot be accused of intent because of his averted posture (throwing backwards), but he can be accused of negligence. According to § 276 para. 2 BGB, anyone who disregards the care required in traffic acts negligently. The defendant is therefore fully liable for damages in accordance with § 823 para. 1 BGB. An exclusion of liability according to §§ 105 para. 1, 106 para. 1 SGB VII is excluded due to the lack of operational activity.