Dog Injures Trainer: When the G&Ts ‘Bite’

May 24, 2024 Benn-Ibler Rechtsanwälte

Unusual provisions in general terms and conditions do not become part of the contract if they are unfavourable to the other party and could not have been expected under the circumstances, according to Section 864a of the Austrian Civil Code (Allgemeines bürgerliches Gesetzbuch, hereinafter ABGB).

The defendant is the owner of a Bernese Mountain Dog and contacted a dog trainer (the claimant) to have the dog trained. The terms and conditions of the training contract read in part as follows:

‘The owner of the animal shall be liable for any and all damage caused by the owner and/or by the animal. [...] The participant is liable for all damage caused by themself, the dog, and any persons accompanying the participant, even if the participant is acting at the prompting of the trainer. [...]’

At the plaintiff’s request, the defendant muzzled the dog during outdoor training. The plaintiff failed to check if the muzzle had been fastened properly. The dog trainer then showed the defendant a routine. In order to get the dog to retreat, she pushed the dog backwards with her knee and pulled on the dog’s collar. After an initial growl, the dog jumped at the plaintiff, slipped its muzzle and bit her left hand.

As the plaintiff suffered a laceration as a result of this incident, she sought compensation, claiming that the defendant was at fault because the defendant had failed to fit the muzzle correctly and was also liable in accordance with the terms and conditions of the contract.

The court of first instance held that the defendant was not at fault for the plaintiff's injuries. The plaintiff had irritated the dog and therefore the trainer had to take responsibility for her own behaviour. The court of appeal upheld the first instance decision.

The OGH recently provided the following clarification:

Since the plaintiff did not challenge the legal assessment of the court of first instance in her complaint, she is not entitled to do so in the appeal. There is also no question of liability under the general terms and conditions. According to the G&Ts, strict liability for any damage caused by the dog is presupposed, which term violates Section 864a of the ABGB.

OGH 10 Ob 10/24d (16.04.2024)