Country:

Austria

Court:

Austrian Supreme Court, Decision from 22.10.2002, 10 Ob 98/02p

Topics:

Defective product, "Ausreisser"

Facts:

A fully automatic coffee machine started to burn when put on standby. This was a result of a technical fault in the machine. This burning machine has set the whole house on fire.

Decision:

The Austrian Supreme Court held that the producer is liable for this single fault of production.

In compliance with Article 6 of the Directive, a product is defective according to

Section 5 (1) 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."

The term "fault" is of central meaning in the APLA, because ever duty to compensation implies a faulty product. The core of the APLA is therefore the definition of fault in Section 5 which is nearly exactly the same wording as in Article 6 of the EC Directive. The care triggering event is the interest of integrity concerning the body and the property of the person that has been injured by the product. What is decisive is the expectation of the safety/security, as measured in an objective standard that has to be substantiated in each case separately under consideration of all circumstances.

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.

In the present case the Court of Appeal assumed correct a fault of production. It must be the result of one single fault that a fully automatic coffee machine started to burn when put on standby. This was a result of a technical fault in the machine. Accidents like this usually do not happen very often. A fault of production makes the product defective in the sense of the APLA, because the user can justly expect that none of several produced products is faulty in comparison with the others and that the security is affected by that. A coffee machine that starts to burn during the usual process because of a technical fault and therefore does not meet the safety expectations can be regarded as faulty. This product did not even meet the requirements for the normal use that was set by the producer, because it did not fulfil the usual standard of safety a reasonable user or consumer would have expected.

Against the opinion of the Revisionswerberin the claimant has proved that there is a defect and that there is a causation between the defect and the damage. There was no need to prove which part of the machine was faulty.

The defendant claimed that the product did not have the defect when it was put on the market but she had to prove this statement und regard of Section 7 (2) APLA. The defendant is on the opinion that she had given this proof by showing that the machine was on the up to date level of technology at that time and that it showed the technical level of the checking establishment. That this specific coffee machine has been proved by the checking establishment has not been proved. What is certain is that this special type of coffee machines has been certificated and that this type already exists since 1994/1995.

This certification does not prove a production without faults and the fact that the machines were on the normal level of technology at that time does not show that a fault of production was not existing when the product was placed on the market. If that was shown one could assume that the fault arose some time later (e.g. as the result of a misuse). The defendant does not claim that the machine had to undergo a check at the end of the production.

The defendant cannot successfully claim to have the non-warranty of Section 8 (2) APLA on his side. According to this the liability of the producer is to be omitted, when the feature of the product is not to be seen as a fault according to the standard of science and technology at the time the product was placed on the market. This is a non-warranty for typical risks of production, when the typical feature is that the dangerousness of a certain characteristic of the product was not identifiable at the time the product was put on the market. It is not of any relevance for the liability of the producer whether he had been able to avoid or to discover a fault, which is no risk of development.

As long as the defendant claims that there are 10.000 exemplars of this type of coffee machine being produced every year (60.000 all together at the time of the decision) and none of those machines had started to burn and the machine is on the present level of technology the defendant misjudges the legal position.

The impossibility to prove that one single product is faulty as the result of a defect in material does not eliminate the liability of the producer.