In January 2022, the Regional Court for Civil Matters in Vienna (Landesgericht für Zivilrechtssachen Wien) dismissed the claim of a German citizen for damages for pain and suffering, medical and nursing care costs, and loss of earnings. The Re-gional Court was of the opinion that neither the Epidemic Act (Epidemieschutzge-setz) nor the Criminal Code (Strafgesetzbuch) constitute a basis for individual claims for damages. Moreover, the Republic of Austria or its organs could not be accused of any unlawful or culpable conduct.
Now, however, the Vienna Higher Regional Court (Oberlandesgericht Wien) has overturned this ruling. The reason for this was that the first judgment was flawed in its findings. The Regional Court for Civil Matters must now decide on the matter again after supplementing the proceedings.
The Vienna Higher Regional Court held that a corona infection is a natural phe-nomenon and compensation can only be claimed from the state if the state authori-ties culpably violated a “protective law”, i.e. a law intended to protect certain per-sons/groups of persons from such a disease.
Like the Regional Court for Civil Matters, the Vienna Higher Regional Court is of the opinion that neither Austrian epidemic law, nor national or EU law bases would come into consideration and therefore no claim for damages can be derived.
However, the OLG Vienna emphasized that the right to life and bodily integrity re-quires that governmental information about imminent dangers “must be correct and complete”. Moreover, the media release published by the Office of the Tyrolean Provincial Government on 5.3.2020 had not been correct and complete information.
Rather, the Tyrolean authorities announced on 5.3.2020 at 5.44 p.m. that the Ice-landers who had departed from Ischgl and tested positive had been infected on the plane and that “from a medical point of view, it seemed unlikely that there had been any infections in Tyrol”. This, although they were aware of the fact that two infected guests from Iceland had developed the first symptoms before departure.
From this, the Vienna Higher Regional Court concluded that information that did not reflect the current status of whathad been knowingly communicated, which meant that the information was unlawful and culpable. This makes the Republic of Austria liable!
According to the Vienna Higher Regional Court, however, it was not sufficiently clar-ified by the Regional Court whether the German had knowledge of the information announced by the Office of the Tyrolean Provincial Government on 5.3.2020 at 5.44 p.m.
This also has implications for the other numerous claims for damages against the Republic of Austria in relation to vacationers presumably infected in Ischgl. If the claims are based on similar facts, it is to be expected that the judgments will also be set aside here and referred back for supplementary proceedings.
The judgment of the Vienna Higher Regional Court has therefore opened up the possibility of further lawsuits, namely for persons who were aware of the an-nouncement of the Office of the Tyrolean Provincial Government of 5.3.2020, 5:44 p.m., relied on it and therefore did not leave Ischgl or arrived at all.
Our law firm is currently handling such cases.
Attention: Statute of limitations from March 2023!
It is important to observe the time limits applicable in Austria. A claim for damages becomes time-barred within three years from the date of knowledge of the damage and the damaging party. If you have suffered damage due to the misinformation, this must be claimed within three years. Otherwise your claim will become time-barred!