Ski instructor seriously injured at work: the employer liability privilege

Under § 175 ASVG, a connection in place, time, and cause with the insured employment must exist for the accident. Consequently, the duty roster, actual activity, and accident time matter during teaching or an assigned work task. A private run after work requires separate assessment. Different boundary questions from daily ski school work are also raised by a company outing. The employment connection is not established by simply being in the ski area.

Losses arising from bodily injury caused by the occupational accident are covered by § 333 Abs. 1 ASVG. Compensation for pain and suffering and injury-related lost earnings can be included among these losses. Intentional causation of the accident is required by the basic rule for compensation by the employer. This restriction is not removed by serious permanent consequences. Where causation was intentional, the claim is reduced by statutory accident insurance benefits under § 333 Abs. 2 ASVG. Damaged equipment requires separate assessment as property damage.

In 8 ObA 66/21w of 22 October 2021, the Austrian Supreme Court clarified that both the occurrence and the extent of the damage must be encompassed by intent. Conditional intent can suffice. Deliberately disregarding a safety rule is, by itself, insufficient. The case concerned an explosion during hazardous goods transport, not a skiing accident. For a claim against the employer, its own intentional conduct is required; an assistant’s intent is not simply attributed to it for this purpose. Separate proof is therefore needed for accident causation and for intent to cause harm.

Where legislation imposes heightened liability for the operation of a means of transport, § 333 Abs. 3 ASVG excludes occupational accidents caused by such means from the basic rule. The employer’s liability is then generally limited to the sum available under an existing liability policy, a limit that does not apply to intentional causation. Following an accident involving a cableway or vehicle in a ski area, specific examination is required for the transport category, operational connection, and insurance. The exception is not established automatically by the involvement of such equipment or installations.

Statutory or authorised representatives of the business owner and workplace supervisors receive protection under § 333 Abs. 4 ASVG. What matters is the actual function in the work activity. Employment alone does not turn a colleague into a supervisor. Likewise, an independent lift operator or colliding skier does not benefit simply because the accident occurred in the same place. A separate assessment of role, operational relationship and liability basis is required for each potential defendant. Claims against third parties outside the privilege may remain available.

Reimbursement claims by social insurance institutions against the employer or equivalent persons are the subject of § 334 ASVG. Gross negligence as well as intent can suffice here. Consequently, the provision creates no personal claim for pain and suffering for the injured instructor. Benefits under § 213a ASVG are expressly excluded. Under § 334 Abs. 3 ASVG, the insured person’s contributory fault neither removes nor reduces this recourse. Therefore, the ski school must assess an institution’s recourse allegation using a different standard from the instructor’s personal compensation claim.

Accident treatment, rehabilitation, and a disability pension are benefits listed in § 173 ASVG. The requirements governing each benefit determine the entitlement and scope thereof. Consequently, the liability privilege does not remove statutory accident protection. Nevertheless, that protection does not fully replace every category of civil damages. Where lasting limitations arise, medical records, evidence of occupational capacity, and benefit decisions must be retained. A private accident policy also requires a separate examination of the policy and its conditions.

The employment contract, duty allocation, work instructions, accident report, and witness accounts must be retained. Where transport is involved, operator records and insurance details also matter. Permanent consequences and lost earnings are documented by medical and income records; contemporaneous messages may show what those responsible knew and did. Before proceedings, the evidence must fit the particular defendant. A ski school’s recourse against an instructor after a customer’s injury follows the DHG and addresses a different question from the injured instructor’s own personal injury claim.