Court:

OGH, 11. 5. 2000, 8 Ob 192/99i SZ 73/78 = RdW 2000/644

Topics:

Defect

Contributory liability

Articles:

§ 5, PHG

§ 11, PHG

Facts:

The plaintiff claimed compensation for pain and suffering after a garden chopper had cut off 4 fingers of his right hand. Several safety warnings were to be found on the chopper, such as to be aware of disposed tools, not to grab into the emission part of the machine and that all service, maintenance and cleaning should be undertaken only when the machine is shut off. The operating manual said that if certain programs were used, the bars securing the emission part of the machine may leave a gap one can reach through. Furthermore the applicable regulation on machine protection devices (Maschinenschutzvorrichtungsverordung 1998) was applicable to the chopper in the case at hand. In § 2 of the regulation it is stated that if dangerous areas of the machine are not secured by special security measures they have to be covered up by a security device which is to avert unwanted approach or contact.

Wet grass in particular is prone to accumulate in the emission area and has to be removed. The warning given did not refer to cleaning out the part in front of the emission part. The plaintiff, a mechanic, had been using the chopper's "wet material function", and had reached to the axes of the emission part to remove accumulated material.

Legal Questions:

Can the manufacturer avoid liability providing sufficient warning instead of taking reasonable and feasible action?

Decision:

According to § 11 PHG, § 1304 ABGB is to be applied to contributory negligence cases, meaning that the producer's liability for his defective product is confronted with the consumers own negligence. The product in the case at hand was defective because there was no security device preventing the consumer from reaching into the emission part of the machine though garden material, if not totally dry, was prone to remain there. Even though the warning on the product stated that it was not to be reached in the emission part, the plaintiff - because of the gap left between the bars of the emission part - was easily able to do so when necessarily cleaning out the accumulated wet material. The emission part of the chopper had not been constructed according to the applicable regulations, which state that dangerous parts have to be secured in a way that averts unwanted contact. When using the chopper the emission part is pointed downwards. This made it impossible to notice the small space to the inner bars. A security device preventing reaching to and into the emission part could be easily installed, which is shown also by the fact that the follow-up model of the same product contained a metal funnel for that purpose. The operating manual itself, stating that the gap between the bars varied according to the program used, reflected the necessity for such a device.

The producer's product has to be constructed as safe as possible. This duty cannot be circumvented by providing warnings instead of taking feasible and reasonable action. Therefore the producer had to provide a reasonable safety device preventing injury when working with the emission part of the machine. Furthermore getting rid of accumulated material in the emission part is to be considered as an automatic action which one undertakes without further reasoning. The producer has to be aware of that common way of usage. That the plaintiff was a mechanic did not justify imposing aggravated liability because the dangers of reaching into a running machine are known to an average person especially if warning was provided.