SOURCES OF LAW AND THEIR EVOLUTION

LIABILITY FOR DEFECTIVE PRODUCTS BEFORE THE ADOPTION OF THE PRODUCT LIABILITY ACT

Austrian tort law is traditionally fault-based. Exceptions thereto have been introduced over time, and unlike other European jurisdictions, Austrian courts also grant claims based on a mere analogy to such statutory bases of strict liability, even to the totality of such causes of action, though rather cautiously. However, before the introduction of the Produkthaft ungsgesetz (PHG), no statutory regime was in force which would have held the producer (or anybody else) liable for the defects of a product irrespective of fault.

Fault-based causes of action apart from intentional wrongdoing include in particular neglect of statutory safety regulations or lack of warnings despite awareness of security risks. The latter was recently confirmed in a case concerning an exploding mineral water bottle, where the Austrian Supreme Court inter alia granted a fault-based cause of action against the producer for failure to monitor products which after putting them into circulation turn out to be dangerous (possibly triggering recall obligations). The rationale for such duties was found in the so-called Ingerenzprinzip, which is well-established in Austrian tort law: whoever creates or controls a source of danger is obliged to invest reasonable efforts into avoiding that such risk materialises.

The Austrian Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB) contains at least one major obstacle, however, that prevents victims of defective products from pursuing tort-based claims against the manufacturer on the basis of a product defect if she did not violate a duty of care herself individually: liability for auxiliaries in Austrian tort law is very limited – outside of contractual or other special relationships, the principal can only be held liable for harmful conduct of her auxiliaries if these were either habitually unfit for the task assigned to them, or if the principal knew that they are dangerous, ie that they are likely to cause harm due to peculiar personal features (§1315 ABGB). Apart from products manufactured by a single individual, this makes it almost impossible in practice to pursue claims in tort law against a producer that employs staff.