The Supreme Court has twice addressed the issue of warning instructions on products for sale, and has laid down guiding principles. In both cases, which resulted from accidents with a bicycle and a bottle of sparkling fruit drink respectively, the consumers' claims were rejected.
Pursuant to the court's reasoning, the appropriate scope and content of such instructions is to be determined on a case-by-case basis. In the event that a producer fails to comply with its obligations regarding warning instructions, its product is considered to be defective under Article 5 of the Product Liability Act. Customers must be warned of any dangerous product features and – if relevant – of the consequences of misuse (although this guidance applies only if the producer is expected to be aware that the danger of the feature is likely to be otherwise unknown). The court uses an objective scale of the expectations of a typical product user for its assessments.
In the first case before the court (OGH 6 Ob 272/03y, May 27 2004) the claimant rode a bicycle uphill and attempted to change gears while in a standing position, the hill being rather steep. The bicyle chain came off the sprocket wheel, causing the claimant to fall. She suffered a broken arm and filed for compensation.
The Supreme Court denied the existence of any duty to warn because, during a test ride at the point of sale, the claimant had presented herself as a relatively experienced cyclist.
In the second case (OGH 6 Ob 7/03b, February 19 2004) a claimant opened a bottle of non-alcoholic sparkling fruit drink, marketed as 'Kiddy sparkling wine', and was hit in the eye by the popping plastic cork. The bottle was modelled on a regular sparkling wine bottle, with a cork fixed in place by wire. The bottle had a warning attached that stated: "Caution: bottle is pressurized! Serve chilled!".
The court rejected the claim on the basis that the defendant had not violated any duty to warn. It is common knowledge that corks pop at a certain temperature. This fact may not be so widely known in the case of a non-alcoholic sparkling beverage, but the characteristic design of the bottle and its cork, together with the attached warning instructions, left no room for liability on the part of the producer.
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