18.04.2020
There are currently reports circulating in the media about claims for damages that authorities and the operators of hotels, bars and other establishments are threatened with by people who were infected with SARS-CoV-2 in Tyrolean hotels, bars and ski resorts. The reason (for the claim): authorities and operators did not react quickly enough to the corona pandemic and failed to take necessary measures.[1]
The damage that would be claimed in this case could consist of claims for compensation for pain and suffering from the sick person, as well as loss of earnings due to the illness and the costs of treatment incurred. In order to enforce any claim for damages, according to general principles (to put it simply), there must be damage, an unlawful and culpable action or omission on the part of the person causing the damage, and a causal relationship between this behavior and the damage that occurred (and this must usually be proven by the injured party).
Is the judicial enforcement of such claims due to Covid-19 disease actually realistic?
I. Liability of hoteliers and restaurateurs
In principle, every contract also includes certain protection and care obligations, which primarily relate to the greatest possible elimination of sources of danger for the contractual partner (here: the guest/tourist). It is one of the obvious duties of an innkeeper or hotelier to take all reasonable measures to enable guests to use their establishment safely.[2] The question now arises as to how far these reasonable measures go and when a restaurateur violates these so-called “duties of care” in connection with infectious diseases.
It would be an overstretching of traffic safety obligations (and also inadmissible for reasons of personal rights and employment law) if one were to demand that a restaurant owner, in order to exclude any risk to guests from infectious diseases, constantly test every guest and employee for the presence of infectious diseases that could be dangerous to other guests. In practice, this is probably just as impracticable as it must have seemed necessary given the applicable state of knowledge at the beginning/middle of March 2020. In the early phase of the Covid-19 pandemic, bar and restaurant operators will have to be conceded that they could not have known if individual guests (who often only stay in their establishment for a short time) or employees (with mild symptoms) were infected; in particular, tourism businesses cannot simply and generally be accused of violating their traffic safety obligations at a time when authorities had not yet published any specific warnings or instructions.
On the other hand, a restaurateur or hotelier who knows (or should have known) that infected guests are staying in the establishment, but does not take any measures (possibly even those suggested by the authorities) to prevent other guests (and employees) from being infected, can be accused of violating his duty of care. In this regard, hoteliers and restaurateurs are also obliged to report (even suspected cases) of corona disease among their employees and people they accommodate (Section 3 Paragraph 1 Item 7 of the Epidemic Act).
Irrespective of this, a restaurateur or hotelier may also be held liable under Section 1311 ABGB for violating a protective law. In this context, protective laws are not only "laws" in the classic sense, but also individual sovereign orders. If the restaurateur violates an official order to close his business or a recently issued regulation, for example on the basis of the Covid-19 Measures Act, by keeping his business open and thereby causing further infections among guests, this basis for a claim would also come into question.[3]
However, in individual cases, proving causality will be difficult: according to general rules, an infected guest who wants to assert a claim against a hotelier or restaurateur would have to prove that he was infected in this particular establishment and not in another location. In the case of liability for violating a protective law, however, this proof is much easier, and the presumption applies in favor of the plaintiff that the breach of duty, which lies in the violation of a protective law, was causal for the damage that occurred. However, this presumption can be refuted by the defendant on the evidence level.
II. Official liability
It also seems conceivable that authorities (technically speaking, we are talking about public corporations) may be held liable within the framework of official liability for failure to take measures to avert danger in connection with the Covid 19 pandemic.
In principle, the federal government, states, municipalities and other public bodies are liable under general tort law provisions for damages caused to third parties by persons acting as their bodies in the execution of the law. An omission by a body can also give rise to a claim for official liability. However, such an omission is only relevant if the body is under a duty to act, i.e. the omission is unlawful, and if this omission was actually causal for the damage that occurred.[4]
The Epidemic Act, for example, now stipulates that in the case of a notifiable disease (which since January 2020 also includes the coronavirus[5]), or a suspected case of such a disease (!), the necessary precautions must be taken without delay, including “Operating restrictions and closures“ (§ 20), “Measures against the gathering of large crowds“ (§ 15) and “Traffic restrictions“ (§§ 24, 25).
It is conceivable that an unlawful omission on the part of the authorities could be seen in the fact that they did not act in accordance with the obligation arising from the Epidemic Act in the case of known suspected cases of Covid-19. without delay take the necessary precautions. Whether this is actually the case with regard to certain authorities can only be assessed on a case-by-case basis. In a specific case, the question must be asked how long an authority must be granted to examine a situation and order appropriate measures – after all, business closures and traffic restrictions are significant infringements on the rights of those affected, which require careful consideration, which is why the Epidemic Act also states that these measures “absolutely necessary“ have to be.
According to general rules of tort law, the injured party would have to prove that the failure to perform a required action was causal for the damage that occurred, but this is made easier for him in many cases under official liability law by the presumption of causality, insofar as he only has to make the reasons for the probability of the damage being caused credible.[6]
III. Conclusion
It is legally possible to enforce claims for damages against the owners of individual businesses in which Covid-19 has been infected, as well as against authorities for failing to take necessary measures - but the concrete chances of success can only be assessed on a case-by-case basis.
We are happy to support you in resolving legal issues related to the Corona crisis and to help you enforce claims. We do not pursue the interests of our clients in the context of mass proceedings or so-called class actions, but exclusively in the context of individual advice. The reason for this is that, in our experience, every case is different - in crucial details at most. Each claim requires a separate examination, an examination that we cannot carry out when enforcing many similar (but not identical!) claims.
[1] Compare for example https://www.derstandard.de/story/2000116076613/tiroler-hoteliers-und-republik-muessen-sich-auf-klagen-vorbereiten.
[2] OGH 29.8.2013, 8 Ob 106/12i.
[3] This basis for the claim has the advantage that the established case law does not require strict proof of the causal connection. In these cases, "prima facie evidence" suggests that the damage to be prevented by the norm was caused by the prohibited behavior. It is then up to the defendant to make the causality of the breach of duty seriously doubtful - by overriding the prima facie evidence that burdens him, OGH 31.08.2010, 4 Ob 113/10m.
[4] Mader in Schwimann/Kodek (ed.), ABGB Practical Commentary4 (2016) to Section 1 AHG Rz 43.
[5] Ordinance of the Federal Minister of Labour, Social Affairs, Health and Consumer Protection regarding notifiable communicable diseases 2020, BGBl II 2020/15.
[6] Mader in Schwimann/Kodek (ed.), ABGB Practical Commentary4 (2016) to Section 1 AHG Rz 47 mwN.