Slope conditions after a ski accident: Applying to preserve evidence in court

The risk that evidence will be lost or become harder to use later is addressed by Section 384(1) ZPO. On a ski slope, scheduled grooming, thawing or removal of a barrier may explain that risk. The specific evidential question to which the threatened loss must be connected by the application is: which trace, terrain feature or safety measure will become impossible to examine reliably after the change?

Section 384(2) ZPO further permits the establishment of an object's current condition where a legal interest exists on the part of the applicant, notwithstanding the absence of the risk of loss mandated by subsection (1). An explanation of the connection to the potential damages claim is required. To pursue a claim, an injured guest may require the condition to be recorded, whereas to defend against an alleged breach of its safety duties, the operator may require such recording. In RS0130711, the Austrian Supreme Court states that the submissions must disclose a civil claim for whose enforcement, defence or safeguarding the preservation of evidence is needed.

The applicant must, pursuant to Section 385(1) ZPO, identify the facts on which evidence is to be taken and the means of proof. An inspection and the examination of witnesses and experts are listed in Section 384(1). The witnesses and any proposed experts must be named. A general request to investigate every cause of the accident and every responsible person leaves the actual evidence to be preserved undefined.

The slope, precise section, accident time, and recognisable reference points should be identified for a site inspection. The position and dimensions of an obstacle, barriers present, or visibility from a particular approach point may be the subject of factual questions. Photographs, sketches, and the rescue report help to define the area to be inspected. Documented observations should be kept separate from assumptions. Whether the recorded condition establishes liability remains a legal question.

Applications are generally directed by Section 384(3) ZPO to the court hearing the dispute. Where proceedings have not begun or where the case is urgent, the application goes to the district court in whose district the object to be inspected, the basis of the expert evidence, or the person to be examined is located. For the site inspection discussed here, this means the accident location in Austria. Jurisdiction for the later damages action is not determined by this. The application may also be made orally for recording by the court.

Section 385(2) ZPO requires the applicant to name the opposing party. Where a slope defect is alleged, the correct operator must therefore be identified. Only where the circumstances presented show that the applicant cannot identify the opponent in the situation concerned may the name be omitted. Incomplete research alone does not establish this exception. An operator seeking evidence for its defence must likewise identify the known claimant.

By order without a prior oral hearing, the court decides under section 386(1) ZPO. The known opponent must first be heard by the court unless delay would be dangerous or that party's consent has already been demonstrated. The applicant may be required by the court to substantiate the circumstances making preservation necessary. Therefore, specific information about the scheduled start of grooming, an announced alteration or melting already observed should be supported with available material.

In an order granting the application, the facts and means of proof are defined by the court, which also appoints the experts and makes the necessary arrangements. Evidence may be taken in urgent cases before the order is served on the known opponent, as permitted by Section 387(2) ZPO. Permission for this may be requested together with permission to take the evidence. That option should be expressly considered in an urgent case. A particular processing time or an inspection before every possible change is not guaranteed by it.

Under section 389 ZPO, the preserved evidence may be used in later proceedings by either party, and the evidence may also be supplemented or taken again. Objections regarding the manner in which the evidence was taken or regarding a failure to notify the opponent, including late notification, are assessed by the trial court. A court site inspection therefore provides usable evidence; it neither awards compensation for pain and suffering nor conclusively establishes the operator's liability. Private photographs and privately commissioned reports originate differently and do not replace the requested court procedure.

The costs of taking the evidence are initially borne by the applicant under section 388(3) ZPO, without prejudice to any right to reimbursement. Reimbursement for the necessary costs of participating in the taking of evidence must be made to the opponent, without prejudice to the decision in the main proceedings. This exposure should be discussed before applying. The court's retention of the record and its transmission to a different trial court are governed by section 388(2) ZPO.

An inspection today records the present condition of the accident site if it has already changed, yet it cannot recreate earlier tracks in the snow. One must check which unchanged terrain features can still be recorded and which earlier facts can be established through witnesses or recordings already preserved. The evidential question in the application must be limited accordingly. For legal preparation, the accident time and exact location, specific changes and their timing, known parties and available documents should be brought together. Mag. Christopher Angerer assesses which application for court preservation of evidence those materials can support.