Section 1302 ABGB after a ski accident: joint and several liability where several contributions to the damage cannot be determined and recourse after payment.
Mag. Christopher Angerer, Rechtsanwalt
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Several people may be responsible for the same damage after a ski accident. If it remains impossible to determine what share each person caused, section 1302 ABGB provides for liability jointly and severally. The injured person may then seek compensation under the rules of joint and several liability from any of the participating tortfeasors.
The rule requires several concrete possible tortfeasors and one attributable item of damage. A mere suspicion about the accident sequence is insufficient. If the contributions can be determined, each person is generally responsible for the damage caused by that person’s own fault.
This post deals only with section 1302 ABGB where a slope collision and an additional breach of duty leave the contributions unclear. The general assessment of the FIS rules, sole liability of a slope operator and insurance questions are separate issues.
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Section 1302 ABGB requires several people with an identifiable contribution to the same damage.
Where only one person may be responsible or participation is still open, the accident sequence requires further clarification. Secure lines of travel, breaches of duty, injury consequences and the available records.
Where contributions can be determined, liability is allocated according to the relevant contribution. Identify which damage item can be attributed to which breach and which records support that allocation.
If it remains impossible to determine which share of the same damage each tortfeasor caused, section 1302 ABGB may impose liability jointly and severally. Recourse between the parties remains available after payment.
Section 1302 ABGB describes two situations. Where damage was caused intentionally or the shares of the individual people cannot be determined, they are liable jointly and severally. The provision therefore concerns a concrete multi-person situation and the allocation of one specific damage.
After a ski accident, one person may have contributed through a line of travel while another contributed through an independent failure to secure or warn. Whether both contributions matter in law depends on the established accident sequence and on the duty applicable to each person.
Joint and several liability follows from the statutory rule. It does not decide the exact amount of damage, individual defences or the internal distribution between the parties. Those questions require separate assessment.
Contributions are unascertainable where several contributions are established as possible causes of the damage, but their respective size cannot be determined reliably. This can matter in a closely connected accident sequence where several breaches of duty overlap.
That situation differs from an open factual question. If it is still unclear who participated, whether a breach occurred or what damage was caused, the basis for applying section 1302 ABGB has not yet been established. Witnesses, accident reports, photographs and medical records can clarify those questions.
If contributions can be separated sufficiently, the first sentence of section 1302 ABGB applies: each person is responsible for the damage caused by that person’s own fault. Joint and several liability cannot be assumed merely because several people were present at the same place.
Liability jointly and severally allows the injured person to seek the relevant compensation from one of the participating tortfeasors. The statutory wording means that all stand for one and one for all. The uncertainty about the internal share therefore does not have to be resolved by the injured person first.
The claim remains limited to proven damage and the applicable requirements of liability law. Injury consequences, property damage, causation and any contribution by the injured person must therefore be examined. Section 1302 ABGB does not automatically make every asserted item fully payable.
Once compensation for the same damage has been received from one party, it cannot be claimed again from another. Record payments, settlements and admissions with their date, amount and related damage item.
Section 1302 ABGB expressly reserves recourse for the person who has compensated the damage against the other parties. A person who pays more than the internal share can therefore generally seek an adjustment from the other participants.
Section 896 ABGB describes internal recourse between joint and several debtors. If no special relationship exists, the shares are generally equal. A special legal relationship or another established basis may lead to a different allocation.
If one co-obligor cannot pay that share, section 896 ABGB provides that the shortfall is assumed by the other co-obligors. The concrete recourse calculation therefore requires separate review of contributions, agreements, payments already made and the parties’ ability to pay.
A slope collision is often only the visible part of the event. Another person may have contributed through an independent breach of duty connected with the danger or the injury. For section 1302 ABGB, the question is whether both contributions relate to the same specific damage.
For example, a collision between two slope users may coincide with an inadequately secured hazard. The legal assessment depends on whether the second breach actually contributed causally to the accident and whether the respective shares of the damage can be determined.
Joint and several liability does not replace the assessment of each breach. Every person must be linked to a legally relevant contribution. Only then can it be decided whether an exact allocation is possible or the special rule in section 1302 ABGB applies.
Secure the accident site if it is safe. Photographs should show lines of travel, visibility, slope width, markings, hazards and the positions of the people involved. Note the sequence with time, weather and the statements of everyone present.
Important records include accident reports, witness contacts, original messages and videos, and documents concerning an additional breach of duty. For an injury, file medical findings, invoices, sick leave records and the development of symptoms chronologically.
Recourse also requires payment records, settlements, admissions and communication between the parties. A clear damage schedule separates items already compensated from open claims and makes later allocation easier.
The central question is how the specific damage can be allocated.
| Shares can be determined | Shares cannot be determined |
|---|---|
| Each person is generally liable for the damage caused by that person’s contribution. | The parties may be liable jointly and severally for the relevant damage. |
| Damage items are allocated to the individual contributions. | The injured person does not have to resolve the internal share in advance. |
| Internal adjustment follows the established allocation. | Recourse against the other parties remains available after payment. |
| Evidence mainly supports causation and the amount of damage. | Evidence must also explain the multi-person situation and why allocation is impossible. |
The actual assessment depends on the accident sequence and the evidence.
Damage allocation is decisive. Several people being involved does not by itself trigger section 1302 ABGB. The key is whether several concrete contributions concern the same damage and whether their shares can be determined reliably.
If several concrete tortfeasors are responsible for the same damage and their shares cannot be determined, section 1302 ABGB may make them liable jointly and severally. Internal allocation is assessed afterwards.
No. A legally relevant contribution by each person and one concrete shared damage must be established. Open participation or mere presence is insufficient.
Each person is generally liable for the damage attributable to that person’s own fault. Damage items and supporting evidence must be allocated accordingly.
Where liability is joint and several, the injured person may seek the relevant compensation from one participating tortfeasor. The statutory recourse rule protects the paying party in relation to the others.
Section 896 ABGB provides for equal shares where no special relationship exists. Agreements, special legal relationships, established contributions and a co-obligor’s inability to pay may affect the calculation.
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