OGH: Competing claims in animal owner liability

Dec 15, 2021 Benn-Ibler Rechtsanwälte

The winter season brings slippery dangers. Thus, the Supreme Court (Oberster Gerichtshof, OGH) dealt with the case of a fall of a pensioner caused by her son's police dog and the associated applicability of several liability provisions with regard to the Republic of Austria.

Due to a rehabilitation stay, the plaintiff's son left one of his police service dogs in his mother’s care. From previous care, it was known that the plaintiff was physically and mentally capable of looking after the dogs. As a result of a collision with the neighbour's dog, the plaintiff became unbalanced on a slippery road and fell, sustaining a severe fracture. The plaintiff now sought damages from the Republic of Austria as the animal owner of a police dog pursuant to Section 1320 paragraph 1 sentence 2 of the Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB), damages pursuant to the Public Liability Act (Amtshaftungsgesetz, AHG) as well as pursuant to the Internal Police Service Dog Regulation 2015 (Polizeidiensthundevorschrift, PDHV).

While the lower courts dismissed the claim, the OGH ruled in principle that in the event of damage caused by an animal, the injured party can claim compensation for his or her damage under the AHG or the animal owner's liability under Sec. 1320 para 1 sent 2 ABGB, but a person entitled to his or her own rights who has agreed to take care of the animal cannot rely on Sec. 1320 para 1 ABGB because his or her damage lies outside the protective purpose of the provision. According to the wording, Sec. 1320 para 1 ABGB protects "every third party", but not those who have caused the damage themselves through the animal hazard.

Thus, the OGH in principle did not assume a competition of claims in the aforementioned liability provisions, but it also denied the plaintiff's claim for damages in the appeal. The PDHV was not applicable, as there was no lack of custody. The plaintiff was part of the "common household" of her son and was accordingly instructed, suitable and reliable to look after his dogs. Liability under the AHG was also out of the question, as there was no fault on the part of the service dog handler.

OGH 1 Ob 109/21t (07.09.2021)