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Austria: Liability: EKHG or ABGB?

10 January 2022
Egbert Frimmel


There are also other types of liability in the case of fault liability, which can be used to establish a liability for damages. For example strict liability under the Railway and Motor Vehicle Liability Act (EKHG). But what is the relationship between them? Can they also coexist so that the injured party has “the choice”, as it were, on what to base his claim on? What's it about?

EKHG - no aliud!

Only recently, in a decision on this subject, the Supreme Court (OGH) made it clear that the limited liability under the EKHG compared to the unlimited (tortious) culpable liability under the ABGB is not an aliud, but a minus. This means that an action based on fault includes liability for endangerment, but conversely, the examination of liability for fault is not possible if the claim is based only on the EKHG. It is important that the liability under the EKHG is limited in terms of amount, whereas the liability for fault under the ABGB is unlimited.

In the opinion of the Supreme Court, it should also be noted in this context that, according to established case law, even official and strict liability are not excluded. The injured party therefore has the option, in addition to or instead of an official liability claim, to claim the liability of the legal entity as the vehicle owner according to the EKHG.

Subject of liability

The strict liability according to the EKHG is about the replacement of damages that were not caused by illegal and culpable behavior (as with the fault liability according to the ABGB), but by the operation of a dangerous thing. Section 11 EKHG regulates the distribution and compensation of damage among those involved in the accident in the event that several vehicles have caused damage. A compensation (recourse) is then provided between several parties involved who have become liable to a third party for damage. First and foremost, the respective culpability of the parties involved and, secondly, the (normal or extraordinary) operational risk emanating from the respective vehicles must be taken into account.

Conclusion: The limited liability according to the EKHG does not appear as an aliud, but as a minus compared to the unrestricted (tortious) fault liability according to §§ 1295 ff ABGB, which is why an action based on fault includes liability for endangerment, but vice versa Checking liability for negligence is not possible if the claim is based only on the EKHG. We are happy to advise you on liability issues of all kinds, because even official and strict liability are not mutually exclusive according to established case law.


For further information, please contact:

Egbert Frimmel , Partner

Frimmel | Anetter Rechtsanwälte GmbH, Austria


t: +43 463 500002


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