OGH on the unalterable determination of damage

Jun 17, 2022 Benn-Ibler Rechtsanwälte

The short statute of limitations of Section 1489 of the Austrian General Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB) does not start to run before the actual occurrence of the damage. If there is uncertainty as to whether damage has occurred at all, the legal validity of the court decision is to be taken into account, because only then is the occurrence of damage unalterably established.

In the case at hand, a car driver was killed in an accident with a freight wagon which had rolled away from position. The fault was borne by a driver of a small car, who was found legally guilty of involuntary manslaughter. In separate preliminary proceedings, the Pension Insurance Institution (Pensionsversicherungsanstalt, PVA), which pays benefits to the surviving wife, asserted claims for recourse against both the first defendant in the present proceedings (railway transport company) and the Austrian Federal Railways (ÖBB) (plaintiff in the present proceedings) for payment of the widow's pension on the basis of Sec. 19 of the Railway and Motor Vehicle Liability Act (Eisenbahn- und Kraftfahrzeughaftpflichtgesetz, EKHG). Ultimately, the Austrian Supreme Court (Oberster Gerichtshof, OGH) ruled that ÖBB had sole strict liability under the EKHG, as the first defendant was not an operating company (Sec. 5 EKHG).

ÖBB now wanted to recover damages from the first and second defendants. ÖBB had concluded a framework agreement with the second defendant, which the first defendant entered into. The second defendant assumed liability for the first defendant's compliance with the contractual obligations.

The court of first instance dismissed the action on the grounds of limitation.

The Court of Appeal changed the previous decision to an interlocutory judgment denying the statute of limitations, since statutes of limitations, as with recourse claims according to Sec. 896 ABGB, only begin to run with the actual payment and there is no joint and several liability.

The OGH ruled:

Although there is no joint and several liability, there can still be an inherent liability of the defendant towards the plaintiff. If there is ambiguity as to when the occurrence of the damage is established, the occurrence of the damage is only "unalterably" established when a court decision concerning the damage becomes final. Since rights from a contract become statute-barred after 30 years according to Secs. 1487 ff ABGB in the absence of a shorter period, the recourse claim based on an assumed obligation to recover damages also only becomes statute-barred after 30 years.

2 Ob 64/21g (22.02.2022)