Austrian Supreme Court: tour operator liable for floatplane boarding accident

Michael Wukoschitz's picture

The plaintiff had booked a package to the Maldives with the defendant. The package included a transfer by floatplane from Malé to the island where the hotel was situated. Accorsing to the Operating Manual of the carrier, it is necessary to moor the floatplane with three ropes. The crew is required to stand at each side of the entrance in order to assist the passengers boarding the aircraft. When the plaintiff was about to board, despite some waves the floatplane was only moored with two ropes and only one member of the crew was standing next to the entrance. The plaintiff was the first in the line. Without inviation or approval by the crew and without having received any safety instructions she started to get into the aircraft, took a step forward to the aircraft's floating body, slipped, fell and was serverely injured.

She sued the tour operator who argued that the accident had solely been caused by the plaintiff's own negligence. The court of first instance granted 50 percent of the amount claimed for because of contributory negligence of the plaintiff. The appelate court reversed the judgement and fully dismissed the claim: the plaintiff had not produced sufficient evidence of a causal link between any failure of the carrier and the accident. The Supreme Court (OGH) held that the evidence produced was suffcient to serve as a prima facie proof of the causation. Thus the burden of proof had shifted to the defendant. However, as the risk had been obvious the plaintiff herselve had acted negligently. The Supreme Court therefore restored the judgement of the first instance court.

Full text of judgement 3 Ob 212/13t of Jan. 22, 2014 availbale in German here>>.

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