OGH on Product Liability in Austria

Dec 15, 2023 Benn-Ibler Rechtsanwälte

A product is defective if it does not provide the level of safety that is reasonable under the circumstances. However, if the defect was not foreseeable according to the state of science and technology at the time, the exclusion of liability under Section 8(2) of the Austrian Product Liability Act (Produkthaftungsgesetz, hereinafter PHG) applies.

In 2010, the plaintiff was implanted with a hip prosthesis marketed by the defendant in 2009. Due to a design defect, the implant broke in 2017 and the broken prosthesis had to be surgically replaced.

An increase in fracture rates and associated complications was not known to the medical community at the time the hip prostheses were first introduced to the market. It was not until 2010 that the increased fracture rate of this type of prosthesis was first described. Later, the use of these implants was no longer recommended, as the disadvantages and complications did not justify the potential benefits.

The plaintiff therefore claimed damages under the PHG.

The appeal court dismissed the case. Broken prostheses are not considered normal wear and tear. At least 10 to 15 years of implant life are expected. However, an increased rate of complications due to prosthesis fracture was not known at the time the product was marketed and the product therefore reflected the state of scientific and technical knowledge at the time.

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) confirmed the decision of the court of appeal.

The prerequisite for liability under the PHG is a product defect in accordance with Section 5 PHG. The prosthesis fell short of the expected durability of the implant by several years. In this case, it is a product defect of the prosthesis.

However, Section 8(2) of the Product Liability Act provides for an exclusion of liability due to lack of recognisability of the defect. This is based on the state of science and technology at the time the product in question was put on the market. The increased breakage rate was only discovered later. As a result, the prosthesis corresponded to the state of science and technology at the time, and the defendant’s liability is therefore excluded.

9 Ob 54/23s (18 October 2023)