Efficient Corona Assistance by Your Attorney in Austria: From Withdrawal from Contract to Claim for Damages - Your Law Experts Lawyers Help throughout Austria
Criminal Investigation at Austrian Ski Resorts, Claim for Damages & Official Liability due to Covid-19 - Ischgl, Paznauntal, St. Anton, Sölden, Zillertal, Mayrhofen
Every year Ischgl in Tyrol, an Austrian ski resort which is also known as the ‘Ibiza of the Alps’, is transformed from a sleepy village of 1,500 souls into a hopping winter sport paradise. Ischgl and its neighboring villages draw around 500,000 visitors each winter. But now Ischgl as one of the most popular après-ski hotspot in Austria is blamed for spread of coronavirus across Europe.
As reported in the international media like CNN, BBC and The Telegraph there are hundreds of people from all over Europe whose infections are traced back to e.g. Ischgl, some of them directly to Kitzloch, according to European authorities. Thus, hundreds of cases across Europe are linked to the ‘party machine’ on Austrian slopes of Ischgl.
International media reported that about 40 per cent of Norway’s 1,400 coronavirus cases to date have been linked to Ischgl. In Sweden the number of Ischgl infections has topped 1,000, also the UK is affected.
According to different reports also other regions as Mayrhofen, Gerlos in Zillertal, Zell am Ziller and Aschau-Kaltenbach are affected.
Health experts say alarm bells were missed which results in a good legal basis to claim for damages. Prosecutors launch investigation into allegations that initial infection was hidden from authorities. The Tyrolean state government is now facing serious criticism and legal actions.
For all guest who visited ski resorts like Ischgl, Paznauntal, St. Anton am Arlberg, Sölden, Zillertal, Mayrhofen, Gerlos, Zell am Ziller and Aschau-Kaltenbach etc. it is now advised to check which claims can be made. These tourists may be entitled to claim for damages against the Tyrolean authorities and against the Republic of Austria.
We guarantee that your legal issue will be handled with the greatest attention and precision and solely by our highly qualified experts in the Law Experts Team of our Senior Managing Partner Dr Hannes Wiesflecker.
Dr Wiesflecker not only held positions in renowned law firms in Vienna and Innsbruck, but after his legal studies also worked for several years as a lawyer for the Association for Consumer Information (VKI) and the European Consumer Centre (ECC). During this time, Dr Wiesflecker successfully supported numerous consumers at the VKI and EVZ with regard to consumer protection law issues and assisted them in matters of damages and litigation. Due to this long-standing activity and his relevant practical experience as a lawyer, Dr Wiesflecker is a specialist in the field of consumer protection law, tort law and public liability law. As a lawyer, Dr Wiesflecker is also a lawyer of confidence and contract lawyer of the Chamber of Labour Tyrol and is therefore regularly active in the areas of civil law, tort law and consumer protection law, representing and advising clients.
The Coronavirus (Covid-19, SARS-CoV-2) and its classification in the Austrian Legal System, Covid-19 as "force majeure" - Corona Help by Your Attorney throughout Austria
The world holds its breath. The economy and social life have come to a standstill in the corona crisis. This extreme situation due to corona disease has led to the cancellation of events and concerts, the closure of schools, restaurants and shops, and massive exit restrictions and curfews in social and economic life. The Austrian citizen is extremely restricted in his daily life.
From a legal perspective, the question arises in particular as to how the Covid-19 pandemic should be classified in terms of its impact on society. Due to its massive impact, the question arises in particular whether Covid-19 can be categorised as "force majeure". This is probably to be affirmed, since in Austria one speaks of "force majeure" when events cannot be influenced, "come from outside" and are "inevitable" and "more unpredictable".
Even though there is, of course, no direct case law regarding the current crisis situation regarding Covid-19 and its legal effects on existing contracts and a claim for damages, the legal system in Austria and already issued decisions of the Supreme Court (OGH) help to answer many questions.
In connection with the outbreak of the infectious disease SARS, case law has already affirmed cases of force majeure and the exemption from contractual obligations. In a decision in 2005, the Supreme Court deemed the outbreak of the infectious disease SARS to be a case of force majeure. The coronavirus is indeed a SARS virus, which means that this case law also applies to the corona crisis.
Claim for Damages & Official Liability due to Covid-19, SARS-CoV-2 - Corona-Help by Your Lawyer throughout Austria
The practice of damage compensation law is one of the most important legal fields in Austria and around the world. More than half of all civil law-based legal matters are estimated to be affiliated with damage compensation matters or refer to damage claim litigation in some way.
A natural or legal person who suffers a disadvantage or damage must, in principle, bear it themselves (see § 1311 sentence 1 ABGB.) This principle is breached if certain grounds for attribution exist (liability for fault, strict liability, encroachment liability) and a liability for damages of other persons or enterprises is standardised.
Compensation can be claimed if the damage was caused by illegal and culpable conduct by the injuring party. The prerequisites for a claim for damages in Austria can be roughly divided according to whether it is a liability from culpable violation of contractual or tortious obligations (so-called culpability liability), a liability due to the realisation of abstract dangerousness (so-called strict liability) or a liability from lawful interference (interference liability). Within these rules, fault-based liability forms the core of liability law.
According to the General Civil Code, all 4 prerequisites such as damage, causation, illegality and fault must be met in order to be able to make a claim for damages.
With regard to Corona, there could be relevant lawsuits and proceedings against accommodation providers in tourism in Austria and especially in Tyrol. Accommodation and lodging is provided on the basis of a civil law contract and so-called protection and due diligence obligations arise from this contract. Accommodation establishments must therefore protect their guests from the risk of infection or illness in the best possible way.
Furthermore, official liability with regard to incidents of coronavirus in the event of, for example, a demonstrably late closure of a facility such as a hotel, bar or restaurant, may constitute unlawful conduct by the authorities and thus a claim for official liability. Private individuals could then take legal action against the state for damages.
> Find more legal information on the subject of damages, official liability and court proceedings in our following legal article "Official liability & claiming damages from the state and hotels".
Your Damage Compensation Law Experts, Attorneys Gamsjäger and Dr Wiesflecker - Your Attorneys in Austria
When it comes to out-of-court settlements, the criminal law-based assessment and prosecution or defence of cases as well as the evaluation of causality matters and the assessment of the compensation / pain and suffering amounts to ask for, Law Experts Attorneys’ Stefan Gamsjäger, Esq, is an expert with a proven track record in all of these disciplines.
Thanks to the wealth of experience acquired while working for renowned, internationally engaged corporate law firms for many years, paired with his expertise in domestic and international civil proceedings and civil law, Dr Hannes Wiesflecker has all of the tools to successfully assist you as your legal counsel in damage compensation litigation. Attorney Dr Wiesflecker has also successfully completed the International Legal English Certificate (ILEC, University of Cambridge, UK). He is thus able to provide effective legal advice and work in English.
Law Experts Attorneys boast international experience and have offices in Innsbruck (domicile of the law firm), Telfs and Vienna. We are ready to assist you with comprehensive legal advice and representation in all disciplines of damage compensation law anywhere in Austria – in court and out of court. Listed below are just some of the services we offer:
- Verification of damage compensation claims with regard to their legal grounds and amounts; assessment of procedural and cost risks
- Out-of-court negotiation of damage compensation settlements or monetary demands for pain and suffering and execution of settlements; negotiation of such settlements with e.g. liability insurance underwriters
- In-court pursuit of damage compensation and/or pain and suffering compensation awards
- Defence against allegations without merit aiming at the collection of damage compensation from corporations
- Representation in criminal proceedings and assessment of damage incidents, prosecution or defence
Claiming Official Liability & Compensation for Damages from the State and Hotels - Compensation Claim, Official Liability and Legal Proceedings due to Covid-19, SARS-CoV-2, Austrian Damage Compensation Law / Tort, Calculation of Demands of Compensation for Pain and Suffering:
The tort law in Austria and the claim for damages regarding Corona - Claiming damages in Austria according to ABGB
The so-called tort law in Austria refers to the sum of those norms that regulate when an injured party can demand compensation from another party for damage that has occurred to him.
In general, everyone has to bear their own damages in Austria. § Section 1311 ABGB regulates this as follows:
Mere coincidence affects the person in whose assets or person it occurs. If, however, someone has caused the accident through his own fault; if he has violated a law which seeks to prevent accidental damage; or has interfered in other people's business without distress, he is liable for all damages which would not have occurred except for that.
Thus, whoever slips on a normal surface, for example, or steers his car against a tree because of his own insecurity, has to bear the damage himself.
The basic prerequisite for the assertion of a claim for damages is the occurrence of damage. § 1293 ABGB regulates this as follows:
§ Section 1293.
Damage is any damage to property, rights or person that has been inflicted on someone. The loss of profit that someone may expect according to the usual course of events differs from this.
In the case of damage, a distinction is made between pecuniary damage and loss of profit (e.g. loss of earnings), on the one hand, and non-material damage which only occurs in the emotional world of the person concerned (e.g. compensation for pain and suffering, holiday pleasure), on the other.
As soon as the damage and the damaging party are known, damages must be claimed within 3 years. However, claims for damages can generally be asserted in court within 30 years.
However, tort law lists exceptions to the obligation to pay damages, according to which the damage incurred can be claimed by another person. Austrian tort law regulates the conditions under which someone else can claim compensation for the damage incurred.
Besides the so-called strict liability, the so-called fault-based liability according to the General Civil Code (ABGB) is the most important basis for compensation.
In the case of fault-based liability, the question again arises whether this liability is based on a contract or on other grounds (tortious liability).
The prerequisites in tort law in Austria are based on the idea of a compensatory function. If someone has suffered a certain damage and this damage was unlawfully and culpably inflicted by a tortfeasor, the injured party should receive some compensation for the damage suffered.
For the compensability of damage there are basically 4 conditions:
- Damage: The basic prerequisite for a claim for compensation is that damage has occurred.
- Causation: A certain behaviour is causal for a damage if the damage would not have occurred without this behaviour.
- Illegality: A damaging party acts unlawfully when he violates a commandment or prohibition of the legal system.
- Fault: Conduct is considered reproachful if one could have expected the injuring party to behave lawfully.
With regard to a possible claim for damages due to the corona virus (Covid-19, SARS-CoV-2), the general rule according to the General Civil Code applies. Therefore, all 4 conditions such as damage, causation, illegality and fault must be met in order to be able to make a claim for damages.
A possibly frequent case for claims for damages due to Corona could be the non-performance of contractual obligations. If one party to the contract cannot fulfil its contractual obligations due to the circumstances surrounding Corona, the other party to the contract is likely to suffer damages. This damage is also likely to have been caused by the defaulting contractual party. In most cases, the illegality will also be affirmed due to the obligation to provide services. When examining the conditions for a claim for damages regarding fault, the last point could lead to considerable legal uncertainties with regard to the coronavirus. The question here is whether the party in arrears is actually in a position to fulfil the contract in any way at all due to the circumstances concerning Corona. The question may also arise as to whether the contractual party could and should not have taken better precautions.
With regard to a possible claim for damages due to Corona, it is therefore always necessary to examine the individual case and the individual contract in order to be able to reach a reliable conclusion.
With regard to corona, there could be relevant lawsuits and court cases in tourism in Austria and especially in Tyrol. This could possibly also occur against accommodation establishments, as accommodation and lodging are based on a civil law contract and so-called protection and due diligence obligations also result from this contract.
The Austrian Supreme Court (OGH) has made the following statement on RS0017049:
The conclusion of a contract not only gives rise to the main obligations which are characteristic of the type of contract in question, but also generates a number of secondary obligations, including the duties of protection and due diligence. The debtor not only has to perform the principal obligation owed, but he must also perform it with such care that all the creditor's legal interests with which he comes into contact are protected and safeguarded from damage as far as possible (see Bydlinski JBl 1960,359 ff; Koziol - Welser, Grundriss des bürgerlichen Rechts I. Teil S 90; Gschnitzer in Klang IV/l, 473).
Accommodation establishments as well as hoteliers must therefore protect their guests from the risk of infection or illness in the best possible way. How comprehensive this protection is and whether a lawsuit is likely to be successful depends, among other things, on what was subjectively discernible for the individual hotelier at the time and whether he acted correctly in the respective situation.
For hoteliers or accommodation providers who were demonstrably aware of a corona disease and did not take immediate action, i.e. immediately called in the authorities and, if necessary, closed down the business, massive liability for damages may well result. If even suspected cases or cases of infection due to the corona virus have been concealed by an accommodation establishment, the liability will become even more severe and possibly also have consequences under criminal law.
Compensation and official liability according to the official liability law (AHG) - official liability because of corona / coronavirus in Austria
The public liability law represents a part of the tort law and contains its own tort law. The application of the AHG - like the general tort law - is linked to the unlawful and culpable infliction of damage, as well as to the sovereign execution, whereby the unlawful and culpable infliction of damage must have been carried out by an organ of the legal entity.
The Public Liability Act is therefore applicable for damages in the area of sovereign administration, i.e. judicial and executive. A claim under the Public Liability Act therefore basically requires the following:
> as in general tort law
- Unlawfulness of the infliction of damage
- Culpability of the damage inflicted
> additionally according to the Public Liability Act (AHG)
- Sovereign enforcement
- By organ of the legal entity
The claim for damages is therefore generally regulated according to the provisions of civil law. The liability according to the AHG applies for illegal and culpable behaviour of the institutions if they act in execution of the law.
The liability of the legal entity occurs when an institution commits a violation of law and causes damage to a third party. The legal entity is liable for any fault of its entities, i.e. not only for intent and gross negligence, but also for slight negligence.
It is also important to note that the institution causing the damage is never liable itself (e.g. the governor of the state), but only the legal entity (federal government, states, municipalities).
The claim according to the AHG is called a subsidiary remedy, which therefore requires that the legal remedy has been exhausted.
With regard to possible claims for damages regarding the coronavirus, the points mentioned above must therefore be examined.
As far as corona and official liability are concerned, the incidents in tourist areas such as Ischlg, St. Anton, Zillertal etc., which are reported in the media, are without doubt of particular relevance. According to media reports, for example, the mayor of Ischlg, Werner Kurz, has already been asked by international media to give a statement on a reported corona case in a well-known après-ski venue. It is said that an infection was already known here at the end of February, but it had not been reported as required by law. Such rumours are circulating in relation to various tourist communities. According to a statement of facts, the consumer protection association (VSV) through its chairman Kolba now also wants to know from the public prosecutor's office in Innsbruck whether the authorities have deliberately acted too slowly to protect Tyrolean tourist businesses. In its statement of facts, the association raises the suspicion of negligent and intentional endangerment of the community and abuse of authority. The public prosecutor's office has already been involved in such cases in order to examine possible proceedings for, among other things, negligent endangerment of people by transferable diseases (presumption of innocence applies).
The official liability with regard to the incidents concerning the coronavirus could, for example, in the case of a demonstrably late closure of a facility such as a hotel, bar or restaurant, constitute unlawful conduct by the authorities and thus a claim for official liability. In this case, private individuals could then sue the state for damages.
Covid-19 & Corona in relation to contract law and existing contracts - Corona advice from your lawyer throughout Austria
In general, every private person and every company carries out a large number of legal transactions every day. With regard to these contracts and legal transactions, the question now arises to what extent they are still valid and whether the services must be provided.
If a contractual obligation cannot be met, the basic principle is that this party is obliged to inform the other party of this fact. Furthermore, in Austria there is a basic obligation to mitigate damages.
With regard to "force majeure" in relation to Corona and existing contracts, it is generally applicable that, due to this extraordinary event, no one can be held directly responsible for it. It must therefore be examined in each individual case on the basis of the agreed contract and the individual case whether withdrawal or cancellation is possible and what effects this has.
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