A nine year old girl was injured in a “familiy hotel” when running against a glass door which due to lightning conditions was hardly visible when shut and not made of safety glass. She successfully claimed for compensation for pain and suffering against the tour operator. Court held that even when her mother had been negligent by not warning her daughter of the dangers of the glass door, this could not be attributed to the claimant as contributory negligence.Following this decision the tour operator’s insurer claimed back half of the compensation paid to the girl from her mother, arguing that due to the judgement she had contributed to the accident at fault. Reasonings of the jugdement against the tour operator were binding for her as she had been given third party notice.Austrian Supreme Court (OGH) at the contrary held that there was no binding character of the specific reason as it had not been relevant for the decision against the tour operator. There was no negligence of the mother as parents were not bound to check hotel for any possible source of danger to their children.OGH 11.12.2007, 4 Ob 211/07v; decision available in German here.
