OGH on public liability: No ordinary legal recourse against supporting GmbH in a university course of studies

Nov 20, 2020 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, OGH) had to judge whether a course of further education (Weiterbildungslehrgang) at a teacher training college (Pädagogische Hochschule, PH) is a fulfillment of sovereign duties and thus the ordinary legal recourse against a company participating in it is excluded (Sec. 9 (5) Public Liability Act (Amtshaftungsgesetz - AHG)).

The plaintiff is a primary school teacher and participated in a university course of studies "Movement Coach for Primary School" organized by a PH. For the realization of the training course "experience and outdoor pedagogy" in the context of this training course the PH used the defendant GmbH, which has a high ropes course. The plaintiff was seriously injured when participating in the course in the defendant's high ropes course. She sought compensation for injuries and reimbursement of treatment costs from the defendant GmbH.

The lower instances dismissed the action on the grounds of inadmissibility of the legal process because the defendant was acting within the framework of the PH course and thus as a body of the federal or state government. The OGH confirmed this view:

"Private individuals" also act as organs in the sense of the AHG if they do not set any sovereign acts themselves, but their activity consists only in supporting participation in the provision of sovereign tasks and objectives. A public PH is a federal institution (Sec. 2 (1) (1) of the Higher Education Act - Hochschulgesetz, HG)) and the university course of study offered by the PH was provided within the framework of the public-law educational mandate (Sec. 39 (1) HG). The supporting activity of the defendant high ropes course operator took place in sufficiently close internal and external connection with the sovereign task of the PH, namely the transfer of knowledge to the plaintiff. Therefore, the GmbH's status as an organ is to be affirmed and the ordinary legal recourse against it is excluded.

OGH 1 Ob 136/20m (22 July 2020)