Drunk on the way home: OGH on the cancellation of insurance coverage

May 5, 2021 Benn-Ibler Rechtsanwälte

An employee sought the award of a disability pension from the General Accident Insurance Fund (Allgemeine Unfallversicherungsanstalt, AUVA) after suffering an accident on the way home from his place of work. This was to no avail, as according to the Austrian Supreme Court (Oberster Gerichtshof, OGH), the event was not a case of occupational accident.

The plaintiff left a company party intoxicated, missed his usual bus connection and went to another station. For inexplicable reasons, although he had reached his new destination, he crossed the road several times and took longer than necessary. A car struck him while he was crossing a pedestrian crossing.

The OGH stated that according to Sec. 175 (1) General Social Security Act (Allgemeines Sozialversicherungsgesetz, ASVG), occupational accidents also include accidents which occur on the uninterrupted way to or from the workplace. The insurance cover exists insofar as the employee is on the way to the destination (workplace or place of residence) in geographical terms and with the intention of reaching the destination. The extent to which insurance coverage also exists for detours depends on the circumstances of the individual case, whereby generally accepted standards and, in particular, the wish of the person concerned to complete the journey with as little interruption as possible are to be taken into consideration here.

The Supreme Court confirmed that there was no longer any insurance coverage, since no later than after leaving the second bus stop, the plaintiff could only have been pursuing his own personal interests. The Supreme Court countered the employee's argument that the coverage is not lost if one crosses the road while waiting for the bus at a pedestrian crossing directly adjacent to the bus stop by stating that in this case it could not be determined whether the plaintiff was actually waiting for the bus. The Supreme Court found that even if one were to affirm the decisive temporal connection of his way home from work, at least for the changing of the side of the road, there was no inner connection with the desire to reach the place of residence.

The plaintiff's extraordinary appeal was dismissed by the Supreme Court by decision.

OGH 10 Ob S8/21f (09.04.2021)