Ski, snowboard and toboggan accident, when compensation is realistic

There is no separate code of conduct for behaviour on the slope in Austria. Instead the courts draw on the FIS rules of conduct of the International Ski Federation. They count as a recognised standard and concretise the care that an average slope user must observe. Anyone who breaches them and thereby injures another acts, as a rule, culpably within the meaning of §§ 1293 ff ABGB.

Central points are consideration for others, control of speed and manner of skiing according to visibility and ability, the choice of track by the skier coming from behind or above, careful overtaking with sufficient distance, controlled entering and starting, and stopping only at clearly visible places. Added to this are observance of signs and markings and the duty to give assistance. These standards apply by analogy to snowboarders; on toboggan runs a comparable care adapted to the run is required.

The most frequent dispute concerns collisions between slope users. Anyone coming from behind or above must choose a line that does not endanger the skier ahead. If they run into them, this regularly indicates their fault. For tobogganing it applies by analogy that the run must be used under control and at an adapted speed.

A realistic claim requires four steps. First, another person must have breached a FIS rule or duty of care. Second, that conduct must have been at least negligent. Third, it must have been precisely this breach that caused the accident (causation). Fourth, it must be examined whether the injured party bears contributory negligence under § 1304 ABGB.

The typical inherent risk of winter sports, by contrast, is borne by each person themselves. If someone falls without external influence, there is no claim against third parties. Contributory negligence is often taken into account, for instance for one's own excessive speed or lack of attention. The result is then a quota that reduces the compensation proportionally, without eliminating it. Fault is therefore rarely a matter of all or nothing.

The burden of proof is important: under § 1296 ABGB the injured party must in principle establish and prove the other party's fault. This is eased by the prima facie case, for instance in a rear-end collision. How exactly the quota is assessed in a collision is dealt with in the detail post on the apportionment of fault under FIS rules.

Where a claim exists, it typically covers treatment costs, loss of earnings, property damage to skis, snowboard or equipment, and pain and suffering under § 1325 ABGB. Pain and suffering is assessed according to the nature, duration and intensity of the pain and any permanent consequences. Details of the assessment and the comparison with Germany are explained in the post on pain and suffering after a ski accident.

The costs of a rescue can also be considerable. Who bears them and which insurance applies is the subject of the post on rescue costs after a helicopter operation. For your own cover it is also worth looking at the scope of private liability insurance for skiing.

Compensation claims become time-barred under § 1489 ABGB, in principle three years from knowledge of the damage and the tortfeasor. This period runs even if the consequences of injury are not yet fully foreseeable. Where healing is protracted, a declaratory action can suspend the limitation period for future losses not yet quantifiable.

Alongside the liability of other slope users, the slope operator may also be held responsible. It owes a slope-safety duty: it must protect against atypical dangers, that is, dangers that a winter-sports participant cannot reasonably expect. For typical alpine risks it is not liable. When a danger at the edge of the slope is atypical is examined in depth in the post on liability at the slope edge.

The distinction from insurance is important. A liability insurer of the wrongdoer only comes into play where the wrongdoer is actually liable. Where, by contrast, there is a pure self-inflicted fall or a general alpine risk, one's own private accident insurance helps, independently of any liability. Many winter-sports participants are covered through such policies or through club and association memberships; a look at one's own insurance documents is worthwhile after every accident.