Court:

OGH, 11. 11. 1992 1 Ob 644/92 SZ 65/149 = JBl 1993,524 (Posch) = EvBl 1993/125 = RdW 1993,179 = ecolex 1993, 237

Topics:

Defect

Articles:

§ 5, PHG

Facts:

The plaintiff had bought two 50 litre bags of lime and stored it under the porch of his cabin which he used to disinfect and improve the water quality of his fish pond. Until 1989 the defendant had filled lime into paper bags and after that time into plastic bags. Due to wind and rain 30 liter lime remaining in one of the bags became humid which caused a fire. The bags (paper and plastic) contained using instructions stating also that the lime was to be stored dryly and contact to eyes and mouth were to be avoided. There was no warning concerning the fact that the product was prone to start a fire.

Legal Questions:

What is the standard of reference for the manufacturer's duty to warn.

Decision:

In the case at hand the court stated that the product was defective according to § 5 Abs 1 Z 1 PHG because of its general presentation. The general presentation of the product according to the PHG refers to the way of presenting the product to the public. The producer's duty to warn comprises the duty to inform the consumer of dangerous features of the product and in some circumstances also the duty to warn of proper use. Those warnings have to be formulated clearly and commonly understandable. A special risk is to be presented impressively and with all its consequences.

The warning that the product had to be stored in a dry place is not sufficient since it is not only the product that can be damaged but there is an additional danger that a fire could be caused. The duty to warn depends upon the consumer's need of protection. The consumer is to be protected if the producer has to anticipate that the product might be used by a person not knowing about the dangers of the product. Therefore a warning does not have to be given for dangers which are of public knowledge to the potential consumer. The safety expectations of the potential user are therefore decisive to whether or not a warning has to be issued. The standard of reference is the ideal type of user of the product. In the case at hand expert testimony was needed to concretise the legitimate safety expectations. The court stated that it could be important whether lime was stored in waterproof plastic bags or paper bags which pass humidity on to the bags' interior.