Country:

Austria

Court:

Austrian Supreme Court (OGH), Decision from 30.10.2001, 10 Ob 19/01v

Facts:

The claimant, who was 7 years old at that time, suffered a vital wound at the throat when she was carrying a bottle of fruit juice, which was no longer originally closed and had been lying in the car for two days of summery temperatures, in her hand. This bottle exploded and a fragment of glass flew to the throat of the claimant and opened the carotid on the left side.

The name of the first defendant was printed an the etiquette of the bottle neck and the third defendant had filled the fruit juice in the bottle. The second defendant is not involved in this remedy process.

Decision:

The Austrian Supreme Court held the revisions of the first and third defendant as inadmissible.

According to Section5 of the Austrian Product Liability Act (APLA) a product is faulty, when is does not provide the safety, that can be expected under the consideration of all circumstances, especially in the face of 1. the presentation of the product, 2. the usage of a product, that is normally expected, 3. the point of time the product was placed on the market.

As the Supreme Court already mentioned (4 Ob 87/97s (water bottle)) the term "fault" is of central meaning in the Austrian Product Liability Act (APLA).

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.

The expectations of a consumer regarding the safety of a product are only legitimate, if this consumer is behaving accordingly to his own responsibilities. Section 5 (1) (2) APLA therefore states another factor that is of importance for the expectations of safety, namely "the usage of the product, that can be normally expected". The reference to the Billigkeit show, that the risk of an abusing behaviour is not to be transferred to the producer. The producer is not liable for unforeseeable or absurd usage. Even if it is not common usage the producer has to take behaviour into account as long as it is theoretical possible and an obvious usage.

The defendant claimed that it is an enormous question of law if the fact that the overpressure in the present case did not escape through the cap would lead to the liability of the producer although a similar case had never happened before and was not foreseeable.

The Supreme Court did not hold the unforeseeablility as an argument and quotes the Court of first instance:

"The first defendant did not claim that it was not at the present standard of science that undetected faults could result in a high pressure in bottles of fruit juice and the defendant did not prove the unforeseeablility of a certain fault."

The claimant stated the high pressure in the bottle as a fault and proves 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 a high pressure in the lemonade bottle while transporting it.

Neither the proof that the bottle was no longer originally closed nor the proof that the pressure was very likely not existent when the product was placed on the market could disburden the producer.

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.

Even if the existent excessive pressure was just a result from accidental chain of circumstances the omission of the warning on the bottle is not to be seen as an omission that is responsible for the liability. The fault of the product still remains if the arising of such an overpressure in the bottle would not have been eliminated from the beginning

The defendants did get this evidence/proof. In their argumentation is rather to be seen that even if there was only a very small content left in the bottle this could lead to a process of fermentation which could result in an explosion like the one that appeared in the case at hand.

When the Court of Appeal assumed that the fault had to be existent because the dangerous overpressure did not escape through the cap und the defendant did not bring the proof of exculpation this is in accordance to the principles of the jurisdiction. In doing this the Court of Appeal was in accordance with prior decisions.

As precedents are only to be proved by the Supreme Court if there has to be a correction of the interpretation of a legal norm. Such a fault interpretation is not given in the case at hand and therefore the revision had to be refused because of a lack of question of law.