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Country:

Austria

Court:

Austrian Supreme Court, Decision from 1.10.2003, 7 Ob 125/03p

Facts:

The third defendant produces and sells mineral water under a certain brand with a two years life (Haltbarkeit). Gas is added to this water and it is filled in 1 litre glass bottles. The third defendant delivers this mineral water to the second defendant from whom the first defendant bought is. The father of the claimant, who was 11 years old at that time, bought several single bottles (not in a box) in the shop of the first defendant on 14.8.1997 and deposed these bottles together with some other groceries in a box behind the drivers seat of his car, without having noticed any anomaly at the bottle that burst some time later. This bottle had the normal glass thickness and had no fault of production. The father of the claimant drove some kilometres to his home where he put the box with groceries into his flat but did not put the bottles into the refrigerator. At approximately 5 pm the next day he went to an old-timer market to St. Poelten with his kids, under those was the claimant, and put the box with the bottles and the groceries in it again behind the drivers seat of his car. In this box were two bottles of the mineral water, amongst others the one the father had bought the day before and that was filled on 11.8.1997 by the third defendant, and another bottle. It was a day without rain with temperature around 18,9 C at 7am and 24,4 C at 2pm. The father opened the bottle already in the morning to drink from it. When the claimant was thirsty at around 12:30pm he went into the car and grasped into the box with the bottles. The bottle of mineral water rolled away, hit a hard (unspecified) item in the car, whereby an Angelbruch came into being 5 mm over the footprint of the bottle which continued on the left and the right side of the point of fracture and that ramified to the top, what lead to the bursting of the bottle as a result of the internal pressure (max. 2,8 bar). The claimant suffered a wounding at the right side of his lower jaw.

Decision:

The process against the first and second defendants has been restricted during the first instance to the reward of the damages only.

The Austrian Supreme Court held that the revision was inadmissible.

According to Section 510 (3) Zivilprozessordnung (ZPO) the Austrian Supreme Court, when dealing with a proper revision because of the missing of a distinctive legal question, has to stick to the details of the reason for rejection. Due to this the following statement has been given against the implementations of the legal remedies:

To start with all implementations concerning the correctness of the expert opinion have to be ignored, because no reason for revision in the sense of Section 503 ZPO is put into perspective by that. The Austrian Supreme Court has to stick to the implementations of the instance of fact because it is an instance of law.

Any duty of compensation requires a faulty product but in the present case there is no defect as it was stated by the prior instances Therefore one could not charge a fault to the third defendant. What falls within the reach of normal experiences does not have to be stated as a warning for the user. For every user there is a duty for own responsibility according to Section 5 (1)(2) APLA, which has to be seen under an objective measurement.

Even if the carrying of already used bottles in a warm car without cooling can be seen as common usage, the fact, that the bottle was left in the car next to a hard item in the bottom of the car, whereby it happened that the bottle got a break because it was rolled by a child against such a hard item, cannot be charged a fault of the third defendant, without the addition of a fault of production.

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