OGH: Accident During Loading Not Subject to EKHG

Jan 4, 2023 Benn-Ibler Rechtsanwälte

In the case at hand, the Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) again specified what is to be regarded as an accident during operation of a motor vehicle under the Austrian Railways and Motor Vehicles Liability Act (Eisenbahn- und Kraftfahrzeughaftpflichtgesetz, EKHG).

In 2019, a trailer owned by the plaintiff was loaded by an employee of the defending party using the latter’s excavator. During loading, not only the intended waste material but also larger, unidentifiable rocks fell onto the trailer, causing damage to the trailer. Subsequently, the plaintiff demanded payment of approximately EUR 24,000.00. The defendant was the owner of the excavator and a typical operational risk emanating from an excavator had materialised, which was why the EKHG is applicable in the plaintiff’s view.

While the court of first instance granted the claim, the court of appeal dismissed it. In its decision, the court argued that the damage did not result from any departure from the intended workflow and that there was therefore no undesired action, which also means that there was no accident under Section 1 EKHG.

The OGH considered as follows:

An accident is a direct, sudden event arising externally. The court of appeal’s opinion that such an event must necessarily be involuntary is to be rejected. It is also wrong that such an event must be unintentional, as the concept of what constitutes an accident must be understood objectively. It must also be rejected that in the present case the damage did not occur during the operation of the excavator. For any damage to occur during vehicle operation, there must be a hazardous setting. This requires a vehicle-driven situation, so that a such a setting can also be given if hazards exist aside from any vehicle operation.

As an interim result, the OGH thus held that it was an accident that occurred during the operation of the excavator, but the Court did not conclusively address the issue of strict liability due to the lack of findings.

OGH 2 Ob 183/22h (25 October 2022)