Country:

Austria

Court:

Austrian Supreme Court, Decision from 16.4.1997, 7Ob2414/96t

Facts:

The married couple W was living in a street of the town H. The low voltage network, which supplied 10 houses situated on the left and the right side of the street each, is being supplied by a transformer located at the beginning of the street. On 8.10.1992 the neutral wire of the electric supply broke off and fell onto a Leiterseil, where by the voltage was increasing from 220 to 380 volt. Due to this high voltage several electric appliances in the house of the married couple W were damaged.

The torn off neutral wire had a cross section of 10 mm. Therefore the neutral wire was conform with the level of technology and the relevant standards. Cases, in which the neutral wire fall onto another wire are very seldom. In the appearance of such a case the voltage always increases to 380 volt, whereby electronic appliances that are made for the use with 220 volt are often damaged. There are some surge protectors with automatic safety back ups on the market, that have to be installed between the plug of the appliance and the socket. Experts doubt the mode of action of these protectors. There or no other opportunities to protect electronic appliances in such a case like the present ones.

The cause of the break off of the neutral wire could not be discovered.

The defendant is producer and carrier of electrical current. She has produced the electricity and has put it on the market. Therefore she is liable for the faultiness of the electricity.

Decision:

The Austrian Supreme Court held that the revision of the claimant was unauthorised.

The non-warranty of Section 8 (2) APLA does not work in favour of the defendant because it cannot be derivate neither from the claim of the parties nor from the drawn conclusions. This regulation isolates the liability for risks of production, the core of which is that the dangerousness of a certain feature of the product was not recognisable at the time the product was put on the market. In the present case the defendant should have known the dangerousness of an over voltage before the accession of the electricity into the private household of the client on the one side and the susceptibility to failure of the conductor system for a break of the rope with the existing consequences.

This circumstance has no influence on the decision in the present case.

According to Section 4 APLA electric energy is a product in the sense of the APLA.

However, the fault must have been existent at the time the product was out on the market by the person that is liable. According to Section6 APLA a product is put on the market as soon as the entrepreneur has transferred it to another person to his authority to dispose or to his usage. The dispatch towards the other person is sufficient.

The essential core of the term "to put on the market" is that the product has come out of the authority of dispose with the will of the person, whose liability is questioned, and that this person theoretically has lost any possibility to control the potentially danger of the product. According to the principles that have been developed by the literature what is necessary is the willing giving up of the own authorisation to dispose over the product and to let it be in the others persons authority to dispose or usage. The product is put on the market when the producer has lost the actual disposal, when the producer gives it away from his division willingly and when it has been accessible for a different business circle, when the producer has no longer the possibility to control the potential danger that is within the product.

This interpretation works in favour of the theory of the claimant, which says that the electric energy has been put on the market at that time, when the recipient is allowed to use the energy. This means it is put on the market when is passes the counter.

The decision whether this interpretation is correct or not is not of any relevance in the case at hand and therefore other counter argument have to be left unconsidered.

In compliance with Article 6 of the Directive, a product is defective according to Section 5 of the Austrian Product Liability Act

"when it does not provide the safety which a person is entitled to expect, taking all circumstances into account, including:(1) the presentation of the product:(2) the use to which it could reasonably be expected that the product would be put:(3) the time when the product was put into circulation."

Regarding faults of products one can differentiate between faults of construction, faults of manufacturing and faults of instruction. According to the faults of construction there has to be a disappointment concerning the standard of safety in the technological concept. A fault of manufacturing arises when the concept of the product as such meets the standard of requirement very well but the manufactured pieces do not because of a non-standard process of production. A fault of instruction arises when the presentation of the product is not sufficiently.

If one tries to classify the present fault in accordance to the above mentioned classification the term that comes closest to the unwanted over voltage that arose from a break of the neutral wire is the term fault of production. The over voltage did not only arise in the actual production but had its cause in the manner and the way it delivered the electricity from the transformer to the single households, which means it has its cause in the concept of delivery from the product to the client. But according to this there is no fault of production in this case because the defect did not result from a deficiency of the production.

The level of technology of that time is the basis of the safety expectations of the user. Additional safety precautions of the defendant could not be seen as the warranted safety expectations of the user, unless the user could have expected those precautions from the presentation of the product.

That the defendant presented its electricity as if it provided security for fluctuations was neither being claimed nor had it happened before. The claimant rather claims, that the description of the product pointed out that the electric energy was set out to a various number of influences on its way to the client, though it was not explicitly mentioned that the break of a neutral wire could result in a fluctuation of electricity.

Therefore the Austrian Supreme Court held that the product was not faulty.