LEXIKON

In its decision of March 10, 2026, 1 Ob 20/26m, (www.ris.bka.gv.at/jus), the Supreme Court (OGH) addressed the allocation of the burden of proof in product liability cases where the cause of the defect is unclear. The case arose from a lawsuit filed by a patient whose breast implant leaked silicone due to damage. It remained unclear whether the defect occurred during manufacturing or only upon implantation. The OGH clarified that the injured party need only prove the existence of a product defect at the time the injury occurred. Thereafter, pursuant to Section 7(2) of the Product Liability Act, it is incumbent upon the manufacturer to demonstrate a preponderance of probability (>50%) that the defect did not yet exist when the product was placed on the market. If the manufacturer fails to provide this exculpatory evidence—because a subsequent cause is no more probable than a manufacturing defect—the uncertainty is borne by the manufacturer.