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LEXIKON
Recourse of the contractor against the building inspectorate
In its decision of November 18, 2019 (OGH 18.11.2019, 8 Ob 88/19b, www.ris.bka.gv.at/jus), the Austrian Supreme Court (OGH) provided concrete clarification for the first time on the question of the extent to which a contractor can successfully assert recourse claims against the local building inspectorate that violated its supervisory duties.
Facts of the case
The Supreme Court’s decision was based on the following facts: The plaintiff is the liability insurer of a contractor who was commissioned in June 2008 to carry out construction work for the addition of another story to an office building. The defendant had provided the general planning and local building supervision (ÖBA) for this construction project. The contractor was responsible for massive defects in the construction of the subfloor, which damaged the laminate flooring laid on top of it. The client successfully sued the contractor for payment of the costs of repairing the damage caused by the defective subfloor. The damages awarded to the client were covered by the contractor’s liability insurer.
Based on Section 67 of the Austrian Insurance Contract Act (VersVG), the liability insurer now sought half of the damages paid from the architects carrying out the construction supervision on the basis of recourse. The claims against ÖBA were justified on the grounds that the architect had failed to fulfill his duty to inspect and communicate and had not prevented the (premature) installation of laminate flooring on a screed that was too wet and the resulting follow-up costs. The architect had thus caused the damage together with the contractor and was liable for 50% of the damages compensated. The court of first instance dismissed the claim in its entirety, as the contractor could not seek recourse against the construction supervisor for inadequate supervision of the execution work. The court of appeal confirmed the legal opinion of the court of first instance.
Assessment by the Supreme Court
The Supreme Court took a more nuanced view of the issue (Supreme Court 18.11.2019, 8 Ob 88/19b www.ris.bka.gv.at): According to the findings, the architect violated (only) his monitoring obligations within the scope of the construction supervision because he did not notice the excessive moisture in the subfloor and misjudged the resulting drying time and the necessity and unsuitability of a vapor barrier. No other misconduct could be attributed to the construction supervision.
The Supreme Court confirmed the established case law according to which construction supervision acts exclusively in the interests of the client and not in those of the contractor, so that the contractor carrying out the construction work cannot assert contributory negligence to reduce his liability in the event of a breach of a related obligation due to the lack of a connection with illegality vis-à-vis the client.
However, according to the Supreme Court, the contractor who performed poorly and the contractor entrusted with construction supervision who violated his control obligations are jointly and severally liable to the client pursuant to Section 1302 of the Austrian Civil Code (ABGB) if their share of the total damage cannot be determined. If a debtor pays more in the external relationship than he would have to pay in the internal relationship due to his joint and several liability, he is entitled to a right of recourse in accordance with § 896 ABGB. In the absence of a contractual provision, recourse between joint and several debtors in the internal relationship depends on the severity of the grounds for attribution, in particular on fault.
All of this also applies to the recourse between the contractor and the construction supervisor that is the subject of the proceedings. However, in order to assess the specific possibility of recourse, the respective circumstances of the individual case must be considered, in particular the scope of the tasks assigned to the construction supervisor. It must also be taken into account that only the contractor and not the construction supervisor is responsible for the defect-free performance of the work and that the appointment of a construction supervisor is not intended to release the contractor from this obligation (even partially). The severity of the grounds for attribution may therefore lead in individual cases to the construction supervisor’s liability in the internal relationship being completely waived.
According to the Supreme Court, this is the case here: the correct concrete mix ratio is at the very heart of the subfloor, which is (only) the responsibility of the contractor. In view of the weighting of the grounds for attribution, the contractor is solely liable for the damage caused by the defect, so that the recourse claim against the ÖBA was not upheld.
Result
As a result, this means that recourse by the contractor against the construction supervisor is possible in principle, but as a rule, the contractor’s predominant, if not sole, liability must be assumed, as in this case.