What happened?
The Austrian Supreme Court (OGH) considered the circumstances in which a child below the age of tortious capacity (under 14) may be held liable for damage they have caused where the persons responsible for supervising them cannot be held liable.
In this case, the claimant, then aged six, and the defendant, aged seven, attended a mutual friend’s birthday party in September 2020. The defendant was in a treehouse approximately two metres above the ground and aimed a drawn children’s bow, with an arrow fitted, towards the lawn where the claimant was standing. He was aware that shooting a bow and arrow was dangerous and could result in another person being struck. In circumstances that could not be established in greater detail, the arrow was released and struck the claimant in his left eye, causing injury. The precise characteristics of the arrow—in particular, whether it was pointed or had a metal tip—could not be established.
The claimant subsequently sought EUR 130,000 in damages from the seven-year-old defendant. The lower courts upheld the claim. They found no breach of the duty of supervision by the parents present, as the parents had exercised the required care. The defendant then lodged an extraordinary appeal on points of law with the Supreme Court against the finding of liability.
How did the Supreme Court rule?
The Supreme Court rejected the defendant’s extraordinary appeal. The lower courts’ decision therefore remained in force, requiring the defendant, who was seven at the time, to compensate the six-year-old claimant for the injuries caused by the arrow.
As a general rule, children under 14 lack tortious capacity. However, section 1310 of the Austrian Civil Code (ABGB) provides for three situations in which a child under that age may nevertheless be held personally liable on equitable grounds. One is liability based on the financial ability to bear the loss: particular consideration is given to whether the person who caused the damage is better able to bear it than the injured person, having regard to their respective financial circumstances. In this case, the defendant had liability insurance. Under the established case law, the insurer’s financial resources may therefore also be taken into account.
A prerequisite for such liability, however, is that the child’s conduct was unlawful. The Supreme Court considered this requirement satisfied: the defendant knew that handling a bow and arrow was dangerous and could cause injury to others. The fact that the bow was merely a “children’s bow” or a “toy” did not alter that assessment. The decisive consideration was that an adult with full tortious capacity would have been liable for the damage caused by the same conduct.
The parents, by contrast, could not be held liable because no breach of their duty of supervision could be attributed to them. Since compensation could not be recovered from those responsible for supervision and the requirements for liability on equitable grounds were met, the seven-year-old defendant remained liable.
(Decision 6 Ob 3/26y of 30 June 2026)
