OGH: Transfer of duties pursuant to § 9 para 1 BauKG requires written form

Apr 22, 2022 Benn-Ibler Rechtsanwälte

The Austrian Supreme Court (Oberster Gerichtshof, OGH) decided that the transfer of the building owner's duties to a project manager pursuant to Section 9 para 1 of the Building Coordination Act (Baukoordinationsgesetz, BauKG) must be in writing in analogous application of Sec. 3 para 6 BauKG.

In the case at hand, the plaintiff was seriously injured due to blatant violation of safety regulations on the construction site. He now (also) claimed damages from the second defendant, who was the building owner, because she had breached her obligations under the BauKG to appoint coordinators and to ensure that a safety and health plan was drawn up.

The latter, in turn, objected that she had transferred her duties under Sec. 9 para 1 BauKG to the construction company appointed project manager. Contrary to the plaintiff's assertion, no written form was required for this.

The OGH ruled in favour of the plaintiff:

The written form requirement for the appointment of the coordinator pursuant to Sec. 3 para 6 BauKG is to be applied analogously to the transfer of duties to the project manager pursuant to Sec. 9 para 1 BauKG. According to the purpose of Sec. 3 para 6 BauKG, the written form should on the whole serve to preserve evidence and create "clear conditions". This applies in particular in the interest of the injured workers.

This clarity would be undermined if the building owner could informally transfer his duties to a project manager. In this case, there would be exactly the risk that Sec. 3 para 6 BauKG is intended to prevent, namely that injured workers would have to decide without a secure basis whether to make a claim against the building owner or the project manager. If it were to be clarified only in the course of a lawsuit who was actually responsible, there might be a problem with the statute of limitations.

This would be an inexplicable contradiction in one and the same law.

OGH 2 Ob 203/21y (27.01.2022)