In a recent decision, the Austrian Supreme Court (Oberster Gerichtshof, OGH) dealt with the issue of waiver of right of way when stopping at an intersection and clarified alleged ambiguities in previous case law.
According to Section 19 (8) StVO (Straßenverkehrsordnung, Road Traffic Act), the driver of a vehicle may waive his right of way, whereby such a waiver must be clearly recognizable for the person obliged to wait. Stopping the vehicle is always considered a waiver of the right of way – there is no difference between a voluntary waiver and a waiver based on a legal requirement. If someone brings his or her vehicle to a stop in such a way that it is perceptible to other road users, him or her must expect other road users to perceive the stop as a waiver of the right of way. It is sufficient if the other road users recognize the waiver of priority beyond doubt. It is therefore not important that the other party involved in the accident did not subjectively perceive the vehicle’s standstill. Rather, the objective perceptibility is decisive, since otherwise the question of priority would be made dependent on circumstances that the driver could not even assess with certainty in the situation.
(Decision OGH 2 Ob 32/22b of 16.03.2022)
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