Warwick Legal Network

Austria: Liability of local building control, cases of alternative causality

 

In a decision of February 23, 2022 ( 3 Ob 30/22s ), the Supreme Court had to deal with a case in which the plaintiff had commissioned the defendant architect with the planning and the local building supervision. It was about the damage from a water ingress. According to the findings of the first instance, the water ingress in the granny flat had two causes. The architect was not liable for one, since his work had already ended at the relevant point in time. The second point of entry concerned the channel between the concrete base of the stone wall and the inner concrete wall in the basement. According to the court, it was not possible to determine whether the rubber sealing, which had been properly planned by the architect, was actually carried out or not.

In this context, the Supreme Court held that, contrary to the arguments of the plaintiff, there was no case of alternative causality and once again made it clear. According to this, alternative causality presupposes that there are several potential damaging parties, each of whom has committed a misconduct that is specifically dangerous and therefore suspected of being causal. Except for the strict proof of causality (both causes are possible), all elements justifying liability must be present. It is important that there is a reversal of the burden of proof in the event of alternative causality. The potential tortfeasor must then prove that its element of the two alternatives did not result in the damage.However, it is doubtful whether the person claimed has actually taken any concrete action giving rise to liability, ie if there is only a possibility, there is no case of alternative causality. This therefore does not bridge doubts as to whether dangerous actions were taken at all.

In addition, the Supreme Court has repeatedly stated that, in principle, real estate can also be subject to commercial depreciation. This arises from the idea that potential buyers may remain concerned that, despite the damage being repaired, there could still be hidden defects or future damage, which, based on this assessment, leads to a lower market price. In this context, the Supreme Court also stated that if there were several existing defects, the claimant must prove which of the defects caused the mercantile depreciation.

In summary, if there are two possible causes of damage, and this is particularly interesting if this affects two different trades, the claimant must prove that both have specifically identified defects that may have caused the damage. There is joint and several liability if one of the parties involved cannot prove that they are free. The decision appears relevant because in practice, joint liability between two trades causing a defect for damage is often prematurely sought without the potential causality for the overall damage being specifically proven for each individual.

 

For further information, please contact:

Konstantin Fischer , Partner

Zumtobel + Kronberger + Rechtsanwälte OG, Salzburg

e: fischer@eulaw.at

t: +43 662 624500

 

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