Country:

Austria

Court:

Austrian Supreme Court, Decision from 16.7.1998, 6 Ob 157/98a

Facts:

The defendant sold an oven, which was appropriate for industrial use and had a regulation system for core temperature measurement and core temperature regulation, to the insurant of the claimant in 1990. During the process of reaching the adjusted temperature the heating elements are turned off. In the case of a breakdown of the heating element the heater power is reduced. A warning system, which show the breakdown of a heating element in an optical or acoustical manner does not exist. The breakdown could be discovered by reading the existing digital display where the internal temperature of the oven is shown. On 25.6.1992 food was prepared in that oven. Due to the breakdown of one contact one heating element was not heating. This incident was not recognised. The food that was delivered to a kindergarten showed salmonellae. The claimant demands from the defendant the payment of damages to the sickened persons and the ascertainment of the liability for future damages.

At the time the oven was bought it was on the average level of technology and had been proved by the checkpoint for electronics.

Decision:

The Austrian Supreme Court held that the decision of the Court of Appeal was correct

The requirement to have an expert on the question of the security expectations of an "typical" user is correct. In the present case such an expert was being called in. This expert just discovered that the oven was on the average level of technology when it was delivered. This did not really give an answer to the question that the substantial constituency had no expectations regarding the warning system that was being missed by the claimant. It is imaginable that there were other products on the market with such a warning system. Regarding the safety expectations of a consumer the price of such a product would also be a relevant factor apart from the standards set by Section 5 (1) APLA.

The Court of Appeal declared that is was correct to refuse the application of the claimant to get another expertise, because the claimant did not have any certain expectations concerning the security expectations in the year 1990, though the expertise, which supported the opinion of the defendant concerning the level of technology and the question whether the oven reached this standard of technology or not, already existed

Therefore this question of law is reduced to the burden of claim and proof. The missing warning system could be a fault of construction regarding the possibility of a future age-related defect of a part of the product.

On behalf of the defendant there is the reversion of the burden of proof and the facilitation of the burden of proof of Section 7 (2) APLA. According to this the defendant has only to prove the possibility that the fault which caused the damages has not been part of the product, when it was placed on the market. This proof is being given by the statement that the product was on the average level of technology and had the label of the checkpoint on it. From this statement one can conclude that in the year 1990 there were only or predominantly ovens without such a warning system for the assessment of an defect at the heating element on the market. This product was in accordance to the technical and scientific knowledge of that time.

The production conforming to the standards indicates that the product was not faulty.

The injured or the insurer of the injured had to prove if the product had a defect at the time it was bought. This burden of proof results from Section 7 APLA.

Therefore the revision of the claimant is refused.