OGH on designed speed in the EKHG

Jun 24, 2022 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, OGH) has ruled that an electric forklift whose maximum speed is electronically limited to less than 10 km/h does not fall within the scope of the Railway and Motor Vehicle Liability Act (Eisenbahn- und Kraftfahrzeughaftpflichtgesetz, EKHG).

In the case at hand, a truck driver was injured in the hall of a shipping company when an electric forklift truck ran over his foot. The forklift had four speed levels, with a maximum of 9 km/h at level 1 and a maximum of 15 km/h at level 4. Due to the space available, the forklift trucks used in the shipping company were only delivered with level 1, i.e. with a driving speed of less than 10 km/h. The speed of the forklift truck could not be changed. To change the level, it would be necessary to enter a 5-digit code. This code was not known to any of the employees of the haulage company.

The injured lorry driver now (also) claimed compensation for pain and suffering from the shipping company as the vehicle owner within the meaning of EKHG.

The court of first instance dismissed the liability under the EKHG, the court of appeal upheld the claim in turn.

The OGH finally restored the original judgement:

According to Section 2 para 2 EKHG, the EKHG is applicable to motor vehicles as defined in the Motor Vehicles Act 1967 (Kraftfahrgesetz 1967). An exception is made for vehicles which, due to their construction and equipment, are permanently guaranteed not to exceed a speed of 10 km/h on a straight, horizontal road in calm conditions.

According to the OGH, the electronic equipment of a vehicle can now also permanently prevent a certain speed from being exceeded if the limit cannot be overcome without considerable effort. This is to be assumed if overcoming the electronic barrier requires specific knowledge that is not generally accessible.

In the original case, the equipment of the electric forklift truck ensured that the maximum attainable speed could not be exceeded at all times. The typical danger (speed over 10 km/h) could therefore not materialise.

OGH 2 Ob 200/21g (26.04.2022)