OGH: Pupil Injured during After-School Care – Who Is Liable?

Apr 12, 2024 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, hereinafter OGH) has dealt with the liability privilege mentioned in Sections 333 ff of the Austrian General Social Security Act (Allgemeines Sozialversicherungsgesetz, hereinafter ASVG). Only if the employer has caused the accident intentionally, is the employer obliged to compensate the insured person for damages resulting from an accident at work.

The plaintiff is a pupil at a primary school which is run by the defendant – an all-day school with after-school care, when the plaintiff was injured while playing with his classmates on the school grounds.

The plaintiff sought compensation on the basis of public liability. The lower courts rejected the claim. As the accident had occurred in the local, temporal, and factual context of the plaintiff’s school attendance, the defendant could invoke their liability privilege.

The OGH upheld the decision of the lower courts.

Pupils are covered by statutory accident insurance pursuant to Section 8(1)(3)(h) of the ASVG.

Accidents by pupils that occur in a local, temporal, and causal connection with school attendance as covered by insurance are considered ‘work accidents’. Section 335(3) of the ASVG provides for a corresponding liability privilege of the educational institution.

Insurance cover exists if the pupil is within the school’s organisational area of responsibility and the accident cannot be attributed to the pupil’s private sphere. In the case at hand, the plaintiff attended a full-time school. According to Section 8 (j) of the Austrian School Organisation Act (Schulorganisationsgesetz, SchOG), school days are divided into learning time and free time. During both these periods, the teachers or other educational staff are required to look after the children.

As there is an intrinsic link between school attendance and the injury, the liability privilege applies.

OGH 1 Ob 23/24z (5 March 2024)