Country:

Austria

Court:

Austrian Supreme Court (OGH), Decision from 1 July 1993,

6 Ob 560/93

Facts:

10 years old claimant suffered severe injury at the eyes from opening a glass made bottle, containing 1 litre of lemonade. While she tried to open the aluminium screw cap of that bottle, the gas pressure that was at the neck of the bottle lead to an kick off of the cap which flew into the claimant face because she was bending over the bottle.

The parents of the injured child had bought the lemonade bottle together with other similar bottles in the middle of August in a supermarket that was bound into a distribution system. They have packed the bottle into a basket made for bottles, transported it in their car to their home and there stored it in the cellar.

One hour before this incident happened the mother of the child has brought the bottle up into the kitchen and put it onto the work surface in such a manner that the bottle was not in contact with the electric cooker.

The lemonade was manufactured, bottled and distributed by the accused trading company.

Decision:

The Austrian Supreme Court held that the legal remedy of the defendant is permissible.

The liability of the accused company for the consequences of the injury under the usual tort standard failures because the claimant did not manage to prove that the defendant was using a causal misdemeanour during the choice of the separate parts of the product, during the manufacturing process or during the surveillance of that process or even in the omission of an instruction for use.

In the case that the causes of the overpressure in the bottles neck are not being revealed one cannot assume that liability arises from the omission of a warning.

If there is no basis for liability under the law of torts the applicability of the product liability is decisive.

According to the wording of the claimant under the use of relevant term of the Austrian Product Liability Act (APLA) (manufacturer, fault, placing on the market) it is given, that she assumes the applicability of this Act.

According to Section 19 of this Act the APLA is not applicable to cases, that deal with defects resulting from products that were placed on the market before the enacting of the APLA on 1 July 1988.

The regulation of the time the product was placed on the market is a part of the proof of the claim concerning the facts. There was no need for the claimant to mention the correct time of the placing of the product on the market by the defendant because she did not have to know about specific processes taking place in the sphere of the defendant.

The injured, that bases the liability of the company on the placing of the faulty product on the market, assumes even without declaration that the time of the placing on the market, which is the basis for the liability of the manufacturer, was after the key date of 1 July 1988.

So what is decisive it the burden of proof for the placing on the market before or after the specific key date.

According to Section 7 (1) this burden of proof is on the side of the manufacturer who could have brought a proof of exculpation.

During the procedure at the Court of first instance and the Court of second instance the urgent proof was not being brought before Court, although this exculpation is relevant for the procedure because the Court is dealing with a faulty product.

The claimant enunciated that an excessive pressure was in the bottle at the time of the opening of the bottle and she proved that this pressure was of such an intensity that a huge part of the consuming public did not have to expect this. So the manufacturer should not have supposed that each consumer would regard the possibility of such an excessive pressure in the lemonade bottle while opening it.

As long as the manufacturer does not prove, that during the transport and deposition until the consumption under his calculated possibility of physical and other effects from outside such a pressure, like that one that appeared at the claimants bottle, would not develop and could not survive.

Should the overpressure in the bottle of the claimant be leading back to a chain of unfortunate circumstances, just like the expert said in his advisory opinion, the omission of a warning was not to be seen as an omission that causes liability but there could be no doubts concerning the defect of the bottle, if the arising of such an overpressure in the bottle would not have been eliminated from the beginning.

The prior decisions of the Courts of first and second instance are to reverse and the case has to be given back to the Court of first instance.