OGH: Non-professionals are obliged to refuse installation work

Apr 21, 2021 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, OGH) ruled that someone who takes on a job for which expertise is required without the appropriate expertise has acted culpably and in tort.

In the present case, the defendant installed a new but unsuitable tap on the kitchen sink in his daughter's flat "as a favor". He had no expertise in the field of installation. Sometime after the installation, water leaked, causing damage to several flats in the house, including the flat of the defendant's daughter.

The water damage insurance of the building in question claimed damages in the amount of EUR 70,000.

The defendant was said to have lacked the necessary expertise for the installation of the fitting. The defendant replied that he had acted free of charge and purely as a favor. He claimed that he had not been obliged to check the suitability of the fitting. Due to a lack of relevant training, he had neither recognized nor had to recognize this.

The court of appeal ruled in favor of the insurance company. In relation to damage to the daughter's flat, the contributory negligence of the property management was established, which did not insist on calling in a specialist.

According to the OGH, the principles of tortious liability apply: In the case relevant here, the defendant was not liable because he did not realize that the fitting was unsuitable, but because he took on the transaction, which was associated with recognizable dangers and whose professional execution would have required special expertise, as a layman. Diligent conduct would have meant refusing the work.

If such a damaging action takes place in a house in which damage can recognizably also occur in other dwellings than one's own or the rented dwelling or with the owner of the house, these persons are also protected by the law and are therefore also directly injured parties.

OGH 4 Ob 17/21k (23.02.2021)