Country:

Austria

Court:

Austrian Supreme Court, Decision from 22.12.1999, 7 Ob 273/99v

Facts:

On 19 June 1996 an accident happened on the building site: the extended distribution pylon of an cement mixing truck broke off and fell to the ground. Two workmen were torn with this pylon and suffered severe injuries.

The truck was adapted by the company E, situated in Austria, that had an employer's liability insurance from the claimants company (therefore called the insurant in the following text). This adaptation as a cement mix truck was ordered by the firm L and included the addition of a cement mixer and a cement pump system. First the insurant had added an cement mixer on his/her/its own and then ordered the claimant to produce and install the whole cement mixing system, which is composed of three different elements: the pump installation as such, the hose joint and the distribution pylon which was located on a pole block. The distribution pylon has the task to pump cement from the cement mixer and to distribute and place it exactly. The installation of the pump system as such was made by the defendant. The other parts, especially the distribution pylon along with the pole block and the ball bearing, that coordinate the panning movement of the distribution mast, in between have been produced and installed by a third party called S.R.L.. The insurant knew that. A label that showed the name of the defendant was patched onto the distribution mast; on the pole block there was a badge, which contained in addition to the technical data of the distribution pylon a sign that pointed out that S.R.L. was the producer. The reason for the breaking off of the distribution pylon on 19.6.1996 was the defective production of the ball slew ring (Kugeldrehkreuz) by the S.R.L..

The claimant paid for the cure of the injured workmen the total of S 1,102.069,--.

Decision:

The Austrian Supreme Court held the revision of the defendant as inadmissible.

The insurer, who is being demanded for damages, is in the position of holding a claim against solidly Mithaftende, whereas one has two differentiate two separate cases:

a) The person, who pays, is bound solidly to the creditor, but he has not to carry the guilt, in comparison to the guarantor . Here Section 1358 ABGB orders that the paid claim goes over to the person, who paid, so that he can demand it back from the payer regarding the internal relation.

This applies without regard to the relation to the creditor, this question arises exclusively in the internal relation between the payer and the other debtors.

b) The payment of a dept by another person, that should carry it with others in their internal relation. In this case of payment of a damage a rule can be established from Sections 896 and 1302 a claim of the payer for recompense to his joint debtors.

According to these general rules the question of recompense in a case of several persons liable for a defective product can be solved in essence, even if there was no special rule.

Regarding Section 12 Austrian Product Liability Act (APLA) the law is aiming on the cause of the fault: "If a payer has paid damages and if the defect of the product is neither caused by him or his people, he can claim compensation from the producer of the defective product, primary material or a part product. If several persons have to compensate, they have to do it undivided."

In the present case the question whether the insurant of the claimant as the producer of the defect part of the product has to be seen as the causer of the defect as it is meant in Section 12 (1) APLA is very contested. Whereas the authorisation of the importer, who delivered the product, to recourse is out of question there are some voices in the literature who want the end producer not to be authorised to recourse because he could have caused the defect in any way according to the Conditio-sine-qua-non-formula.

The Court does not follow this opinion. Like the importer the end producer can be seen as the person who caused the damage, because the damage would not have come into existence if he had not put the product on the market. In contrast to that Section 12 aims to the cause of the fault and not to the cause of the damage.

Against the opinion of the Revisionswerberin the choice and the assignment of a basically appropriate producer cannot be seen as a causation of a fault in the sense of Section 12 (1) APLA. The right view of this problem must be that the end producer must be authorised to recourse against the producer.

This opinion is supported by the material of law as far as the authorisation of the end producer to recourse against the producer of a part of the product is expressively mentioned in a government bill.

Therefore the authorisation of the insurant to recourse is to be affirmed, especially as the objection of the defendant during the revision process concerning the lack of the Passivlegitimation is inadmissible. For that it is to be said that the right for compensation in the sense of Section 12 APLA is no isolated right concerning the APLA, rather be untersteht in content to the standards of the APLA.. Because of that the person who has the duty to recourse can except against these regulations, that would have excluded his liability against the injured.

Therefore the insurant as the end producer of the faulty product is authorised to recourse.

The legal means of the defendant has to be without success because of that.