Country:

Austria

Court:

Austrian Supreme Court (OGH), Decision from 8.4.1997, 4 Ob 87/97s

Facts:

On 16. August 1992 the claimant and his wife Eleonora were driving to M***** to visit it and they were in the accompaniment of the claimants brother and his wife, who were driving in their own car. At 8.30 am these persons parked their cars on the parking place and drove to a nearby parking place at noon. Both of the two cars had to wait before a tunnel. It was a sunny and warm day. The claimant took a bottle of mineral water of the brand "A*****" from a cooling box in his trunk with the purpose to drink from this bottle. When he twisted the cap of the bottle there was a sound similar to that of a the opening of a bottle of sparkling wine but no water was squirting out of the bottle. The cap flew against the right eye of the claimant. There from he suffered an injury of the right eye and let drop the bottle. His wife was getting out of the car immediately, took a second bottle of this mineral water, opened it and cooled the eye and the eyebrow of her husband with this water. The claimant found this to be very cooling/soothing.

Before the departure for Kaernten on 15. August 1992 the claimant put several bottles of mineral water from the cellar into the cooling box and tested the box to see if it worked. On the way to Kaernten the box was supported by battery for some time. Since the arrival at their holiday destination the cooling box was not being provided with energy so that it was not being cooled for almost 24 hours.

The conditions of manufacture at the accused company are on the present level of technology and science and largely prevent faults of product in the treatment of mineral water, cooling of the bottle and production of the bottles and caps.

Decision:

The Austrian Supreme Court held the accused guilty.

In compliance with Article 6 of the Directive, a product is defective according to 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 one can assume a fault of production. The kick off of the cap can only be a single fault evoked by a very tiny foreign substance, minor uncleanness or a fine bumpiness at the inside of the bottle, which could not be seen with the human eye or could not be found by the electronic inspection machine, but that disturbed the solution equilibrium in this single bottle. This must be the reason because faults of that kind do not appear very often at this very special kind of mineral water. If the accused could be reproached with a fault of instruction regarding the omission of a warning concerning the possibility of a danger when opening the bottle depends on whether the defendant had to take accidents like the present one into account or not.

The defendant held that the claimant was not using a normal standard of care when opening the bottle and that it would have been reasonable if the claimant had held the bottle in such an manner that the cap pointed away from his body. This direction is not being followed by the court.

What to be proven was if the user attitude was foreseeable for the producer. If not the producer would not be held liable. Common behaviour such as chewing on a pencil is foreseeable for the manufacturer. Even if it is not common the producer has to take behaviour into account as long as it is theoretical possible and an obvious usage.

It is not common knowledge of the public that caps of mineral water bottles can behave just like the corks of bottles of sect. Therefore nobody opens a bottle of mineral water very cautiously. There is no rule that says one should hold the cap of such a bottle away from ones face when opening it. The accused had no reason to assume, that the person who bought such a bottle would behave very cautiously on hot days after storing the bottle not cooled.

The claimant did not violate any cautions when opening the bottle after storing it not cooled for more than 20 hours and he did not act under extreme conditions where he should have assumes that he was behaving risky. It was not his fault.

On the basis of the technical knowledge of the defendant he should have given a warning. He should have known that faults cannot be excluded in the process of production.

The Court held that it was not of importance for the liability if the defendant could have recognised the fault or not.

Even if one would take for granted that there had been no high pressure in the bottle of mineral water at the time of the distribution, the defendant would not be under the condition of Section 7 APLA. According to this section, the accused, who claims that the product was not defective at the time he placed it on the market, has to prove this.

If there had been a disturbance of the solution equilibrium there already was a fault, because this disturbance led to the high pressure in the bottle.