In August 2013, the plaintiff who spent his holidays at an Austrian lake booked a “banana boat ride” operated by the defendant. Before mounting the “banana”, the participants were instructed that the banana was likely to capsize and they should cling on tight. During the ride which was operated in an accurate manner and at reasonable speed the banana, indeed, capsized and the plaintiff was seriously injured on his head probably because he collided with another passenger’s body.While the first instance court (Bezirksgericht Klagenfurt) granted damages for pain and suffering and the appelate court (Landesgericht Klagenfurt) upheld this judgement, the Supreme Court (OGH) reversed the decision upon further appeal of the defendant:Any sporting operator was obliged to inform the participants about the typical risks in order to enable them to assess the hazards involved. However, it was decisive whether the respective participant was sufficiently aware of the danger. If a participant therefore knew about the danger because of having carried out the same activity before, even a potential failure to provide information (burden of proof on the plaintiff) would not be causal for the damage. According to the findings of the first instance court, the risk of capsizing was obvious and the plaintiff already had experience in banana boat riding because he had taken part in such activities twice before. Therfore there was no doubt that the plaintiff was well aware of the risk of capsizing. Hence, no liability on behalf of the defendant.Case details: OGH judgment 8 Ob 94/17g of August 24, 2017 (ECLI:AT:OGH0002:2017:0080OB00094.17G.0824.000)
