OGH on the Protective Purpose of ‘No-Overtaking’

May 31, 2024 Benn-Ibler Rechtsanwälte

In order for there to be contributory negligence as a result of a breach of a protective rule, the breach of the rule must have the purpose of preventing a harmful event. It is therefore necessary that contributory negligence was involved.

The plaintiff and the defendant had a road accident in 2023. The defendant was driving a forklift truck that was not authorised to drive on public roads. He was attempting to turn left into a business driveway. The plaintiff’s view of the forklift was blocked by a minivan that drove between the forklift and the plaintiff’s car.

In the area of the accident, according to Section 52(a) Z 4a of the Austrian Road Traffic Regulations (Straßenverkehrsordnung, hereinafter StVO), overtaking by multi-lane motor vehicles is prohibited. Nevertheless, the plaintiff decided to overtake the minivan. He only noticed the forklift truck when he was level with the minivan. At the same time, the defendant made a sudden turn to the left, without looking over his shoulder, using the indicator or giving a hand signal, and collided with the plaintiff’s car.

The plaintiff claimed damages. The court of first instance held that a no-overtaking zone is of particular importance for road safety, and apportioned fault 3:1 in favour of the plaintiff. The judgment was modified in favour of the plaintiff by the court of appeal.

The decision of the court of appeal was upheld by the Austrian Supreme Court (Oberster Gerichtshof, OGH).

Regardless of whether or not overtaking is prohibited in the turning area, a left-turn manoeuvre without getting in the turn lane first requires the driver to observe the traffic behind themself again.

The protective purpose of no-overtaking zones according to Section 16(1) lit. a to c and (2) lit. b of the StVO is only to allow oncoming traffic to pass safely. It is also intended to prevent any damage that may be caused by overtaking. However, no-overtaking zones are not intended to protect road users travelling in the same direction and then making an illegal left turn.

The defendant was therefore at fault because he did not keep parallel to the road, did not observe the traffic behind him, and did not give any warning of his intention to turn.

OGH 2 Ob 37/24s (23 April 2024)