OGH on the duty of care of a whirlpool owner

Jun 24, 2022 Benn-Ibler Rechtsanwälte

In the present case, the Austrian Supreme Court (Oberster Gerichtshof, OGH) examined the duty of care of a whirlpool owner.

At a party, the plaintiff had suffered legionella pneumonia due to the whirlpool. The legionella formed due to a biofilm, as the defendants had left the waste water hose permanently connected to the whirlpool. The plaintiff then sought a declaration of liability for all future damages and claims. The defendants countered that they carried out the cleaning in accordance with the operating manual. There was no requirement in the manual to use a special sponge for manual cleaning. The pool was cleaned using an Ozonator. The defendants also regularly checked the pH and chlorine levels.

The court of first instance dismissed the claim. It held that although the cleaning was carried out according to the manual, legionella contamination could not be prevented subsequently. The Court of Appeal again overturned the first judgement.

The OGH stated:

The Court of Appeal had disproportionately overstated the first defendant's duty of care. Although the operating manual contained numerous problems and possible causes of water problems, there was no reference to legionella. Although the defendants did not use a coarser sponge as requested by the plaintiff, they could not have foreseen the imminent danger of contamination with legionella. For this reason, according to the OGH, they did not breach any objective duty of care. The permanent fixing of the drain hose, which led to the biofilm in the first place, does not constitute a breach of due diligence either. A diligent whirlpool owner did not have to recognise that this posed a risk of bacterial infiltration. This was because the drain valve was completely closed again anyway.

The defendant's appeal was therefore to be upheld and the judgement of the court of first instance was to be restored.

OGH 9 Ob 14/22g (27.04.2022)