Damages for breach of the duty of supervision

When a child or a person requiring care causes damage, the question often arises whether the person responsible for supervision must pay compensation. Liability does not follow merely because someone is a parent, relative, teacher or carer. The decisive issues are the supervision actually assumed, the concrete risk and the sequence of events.

Section 1309 ABGB links compensation to a neglect of the care entrusted to the supervising person. This article explains which facts matter, how parental and institutional responsibilities differ and which documents should be secured at an early stage.

Under section 1309 ABGB, an injured person may seek compensation from a person entrusted with care over the person who caused the damage where the damage is attributable to a neglect of that care. The provision does not create automatic liability for every act of a child or another person receiving care.

Several questions must be considered together: Who actually assumed supervision? What were the age, characteristics and development of the person being supervised? What risk was apparent? What level of supervision could reasonably be expected in that situation? The overall picture determines whether a breach may have occurred.

The portal section on accidents, traffic and insurance places supervision issues within the wider assessment of cause, liability and damage. The overview on evidence and negotiation is useful for the evidential side.

The required level of supervision is not the same for every person or every moment. The Austrian Supreme Court considers the age, characteristics and development of the person being supervised. The surroundings, apparent danger, previous experience and the possibility of reacting quickly may also matter.

A young child in an unclear or dangerous environment may require closer guidance. An older and experienced teenager may be expected to act more independently. The law does not provide a general fixed distance or a fixed number of checks.

The question is prospective: which danger was recognisable at the time and which reasonable measure could have prevented or reduced it? Looking back solely from the fact that damage occurred is not enough.

Parents and relatives may be considered under section 1309 ABGB where supervision was entrusted to them and they negligently failed to provide it. The injured person must first set out the specific omission. The supervising person may establish that the required care was taken.

The review therefore includes family arrangements, actual presence, information about particular risks and whether the dangerous act could have been anticipated. A short period of care by grandparents, friends or another trusted person can change who was responsible at that moment.

For children under 14, section 1310 ABGB may also be relevant. It concerns possible equitable liability where the injured person cannot obtain compensation in another way. It does not replace the concrete assessment of supervision and does not permit a general attribution of liability.

Schools, clubs, care providers and other organisations are not automatically liable for every incident occurring during their activities. The relevant factors include the assignment, the tasks assumed, the organisation of the activity and the safety requirements of the situation.

In 1 Ob 110/23t of 20 September 2023, the Austrian Supreme Court explained that for a care facility supporting an adult, liability towards outside third parties will generally not be based on the supervision duty under section 1309 ABGB, but on a general duty of care and safety. This distinction shows why age, form of care and the direction of the claim must be established carefully.

Secure the care agreement, house rules, duty roster, handover records, training material and correspondence about the incident. For an accident during an organised activity, the schedule, allocation of supervision and witness accounts may also be important.

Even a possible breach of supervision only leads to compensation if it was relevant to the damage. Three levels should be kept separate: which supervision measure was missing, whether it would probably have prevented or changed the incident and which health or financial disadvantages resulted.

In a personal injury, medical findings, treatment records, recovery costs, loss of earnings and pain compensation may be relevant. For property damage, photographs, repair invoices, diminished value and proof of ownership matter. The information on personal injury and recovery costs helps with the first classification.

Several causes may be involved. The injured person’s own conduct, an additional risk in the surroundings or an independent event can affect the assessment. Record each damage item separately with period, document and causal connection.

Prepare a chronological account of the incident with place, time, people present, earlier arrangements and the immediate sequence. Add photographs, videos, messages, witness contacts, medical records and correspondence with insurers or institutions.

For an alleged breach of supervision, information about age, development, known risks, handover and specific warnings is particularly important. Record observations separately from later legal conclusions. This keeps clear which facts are actually established.

The damage documentation check can help organise the file. If several responsible persons are possible, the claim check offers a practical first sorting aid.

A frequent mistake is to infer a breach merely from the fact that damage occurred. It is equally insufficient to say generally that a child was not supervised enough. The file needs concrete details about the risk, the expected reaction and the measure that could actually have been taken.

Further difficulties arise when parental liability, institutional liability and the liability of the person acting are mixed together. The amount of damage is also often not separated into recovery costs, loss of earnings, property damage or other disadvantages.

A clear timeline with responsibilities and documents provides a better basis. It shows which questions remain open and which records are still missing.

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