Change in case law on work accidents during home office (OGH 27.04.2021, 10 ObS 16/21k)

Created by Mag. Fridolin Fahringer |
Business Law

According to new case law, the intention of the act during "home office" shall be the only considered requirement to establish, whether an accident is covered by the accident in-surance: If the objective action tendency (intention) of the activity causing the accident is carried by a vocational volition, an occupational accident is to be affirmed and a disability pension is entitled.

1. Background

The employee and later plaintiff worked in his multi-story house in ‘home office’. His ‘office’ was located on the second floor, the stairs between the first floor and the first floor were predominantly used privately.

The employee expected a phone call on the day of the accident while attending a business meeting with a work colleague on the first floor. When the phone rang in his ‘office’ on the second floor, the employee rushed up the stairs to take the call. In that process he fell and injured himself.

2. Previous case law:

According to previous case law, the predominant use of so-called ‘mixed areas’ such as a stairwell had to be considered. The insurance only covered an accident if the ‘purely personal’ area was left and the essentially used business/occupational area was entered. Under this line of case law, mixed-use areas only counted as business premises if they were used a substantial extent for business purposes. If the staircase was used ‘predominantly privately’, an occupational accident had to be denied.

3. Decision of the Supreme Court (new case law):

This caselaw was overturned in the most recent judgment: Even if the employee did not use the stairs in the present case predominantly for business purposes, he climbed the stairs to take a business call. Despite the stairs were predominantly used for private purposes, the act of ascending the stairwell was carried by a purely vocational volition and therefore the court confirmed an occupational accident and hence an occupational insurance coverage.