Children in Ski Accidents – Who is liable if a child causes or is involved in a ski accident?

Liability of children – Parents’ duty of supervision – Compensation for pain and suffering – Damages – Third-party liability insurance – Compulsory helmet use – Liability on grounds of equity

Lawyer specialising in ski accidents involving children in Austria

Children have long been a common sight on Austria’s slopes – whether on ski courses, with their families or on school ski trips. If a collision occurs, the same question immediately arises for everyone involved: who pays? The answer is very different for children than for adults – and it comes as a surprise to many of those affected. This article explains in simple terms when a child is liable, when the parents are liable, what role the compulsory wearing of helmets and insurance play, and what compensation an injured child is entitled to following a skiing accident.

The basic principle: children under 14 are not liable in the same way as adults

Austrian law makes a clear distinction based on age:

• Children under the age of 14 are ‘minors’ and are therefore, in principle, not capable of committing a tort. They are thus not liable under the general rules of tort law (Section 1295 of the Austrian Civil Code (ABGB)) – even if they have objectively breached the rules on the slopes.
• From their 14th birthday onwards, young people are generally fully liable in the same way as adults.

However, this does not mean that a child under 14 never has to pay. The law provides for a special rule in such cases.

The exception: liability on grounds of equity under Section 1310 of the ABGB

Section 1310 of the ABGB allows the court to order a minor to pay compensation for the damage in full or in part – at its discretion. This is subject to one of three conditions:

• The child was capable of understanding the situation in the specific case. In other words, they were able to recognise the danger of their behaviour and adjust their conduct accordingly.
• The injured party refrained from defending themselves out of consideration for the child.
• The child’s financial circumstances justify compensation – this is where the real leverage lies in practice (more on this shortly).

Important: Even in the case of liability based on equity, it must first be established that an adult skier would be liable in the same circumstances. If only the general, unavoidable risk of skiing has materialised, the child is not liable either.

Moreover, liability on grounds of equity is subsidiary: it only applies if the injured party cannot obtain compensation for the same damage from the parents who are responsible for supervising the child – the child’s liability is therefore always only the final stage of the assessment.

Capacity to exercise judgement: it depends on age, not skiing experience

The court always assesses whether a child was capable of understanding the situation on a case-by-case basis.

The younger a child is in relation to the age of majority (14 years), the less likely it is that they can be held responsible.

According to case law, a 13-year-old can reasonably be expected to observe the FIS rules. The behaviour of children under the age of 7, on the other hand, is judged more leniently.

A common misconception: skiing ability is not the same as the capacity to exercise sound judgement. A child may be able to ski safely from a technical point of view and yet still be unable to accurately assess speeds, distances and the behaviour of other skiers. Anyone claiming compensation as an injured party against a child must assert and prove the child’s capacity to exercise sound judgement – not the child’s inability to do so.

The FIS rules for the slopes: the benchmark for children too

On Austria’s slopes, the principle of personal responsibility applies, supplemented by the FIS rules of conduct and the POE rules of the Austrian Board for Alpine Safety. These FIS rules are, in a sense, the ‘traffic rules’ on the slopes and are used by the courts as a benchmark for the duty of care in alpine skiing.

These skiing rules apply throughout Austria to all users of the slopes. In the case of children, however, the courts do not apply the same standard as for adults: the assessment is based on whether a child of the same age and sound judgement would have acted differently in the same situation. Furthermore – as is the case with road traffic – children are largely exempt from the so-called ‘principle of trust’: other skiers must not rely on a visible child always behaving in accordance with the rules.

Compulsory helmets for children in Austria

If a child is not wearing a helmet at the time of an accident and sustains head injuries, this may

• constitute contributory negligence in relation to the consequences of the injury and may reduce the child’s claims, as well as
• result in a breach of the parents’ duty of supervision (Section 1309 of the Austrian Civil Code (ABGB)).

Even where there is no legal obligation, failing to wear a helmet in the event of head injuries may be regarded as negligence in one’s own affairs. Our urgent advice is therefore, regardless of the federal state: always ensure children wear a helmet on the slopes.

Who pays in the event of a skiing accident? Third-party liability, accident insurance and rescue costs

When it comes to the question of ‘who pays in the event of a skiing accident’, different types of insurance are often confused. They fulfil completely different purposes:

• Third-party liability insurance: Covers you if your child causes damage to someone else. To cover a child who is not legally liable for their actions, an explicit inclusion clause is often required – see below.
• Private accident insurance: Pays out the agreed benefits (e.g. in the event of permanent disability) regardless of who was at fault. It is therefore often the only source of cover if your child falls without any third-party involvement – so the classic question ‘does accident insurance pay out in the event of a fall?’ can be answered with a ‘yes’ here, within the terms of the policy.
• Health insurance: Covers medical treatment.
• Legal expenses insurance: Covers the costs of legal proceedings.

One aspect that is often underestimated is the cost of rescue operations. “Who pays for the helicopter in the event of a skiing accident?” – statutory health insurance does not usually cover the costs of a rescue helicopter, which are often in the four-figure range. These costs are usually covered by private accident insurance with a rescue costs cover option or by membership schemes (e.g. the Alpine Club, ÖAMTC). If someone else is at fault for the accident, the rescue and recovery costs are considered recoverable accident damages and can be claimed back from the party responsible.

The key point: the child’s third-party liability insurance

In the third scenario (‘financial circumstances’), there is a rule that is often overlooked:

A liability insurance policy taken out in the child’s name counts as the child’s assets.

This means that the insurance policy effectively determines the outcome of the case:

• If cover exists, liability on grounds of equity is generally upheld – the child (or their insurer) pays.
• If there is no cover and the child has no assets of their own, a claim against the child will come to nothing.

Practical tip for parents: Check your personal or family liability insurance before the ski season begins. Many policies often only cover the liability of children who are not legally capable of committing a tort if this is expressly included. If this inclusion is missing, your child may be legally protected – but the injured party will then come away empty-handed, which, experience shows, leads to lengthy and costly proceedings.

‘Parents are liable for their children’ – is that even true?

No. This statement is one of the most persistent legal misconceptions in Austria. There is no automatic parental liability.

Parents are only liable if they have breached their duty of care. The standard is based on what was reasonable and necessary in the specific case – depending on the child’s age, maturity and character, as well as the specific risk involved.

Anyone who carefully instructs, equips and accompanies their child does not breach their duty of supervision – even if an accident does occur. Conversely, the child’s liability takes precedence over parental liability.

If your child has been injured in a skiing accident

If your child is the victim, they are entitled to the same claims for compensation as an adult:

• Compensation for physical and emotional pain and suffering (in Germany: Schmerzensgeld)
• Medical and treatment costs, including therapies and rehabilitation
• Additional costs for care and support, even if provided by relatives
• Travel, transport and rescue costs, including those of accompanying parents
• Compensation for disfigurement, for example in the case of permanent scarring
• Determination of liability for future damages

Does all this also apply to tobogganing and sledge accidents?

Yes. The principles outlined – criminal responsibility only from the age of 14, liability based on equity, parents’ duty of supervision and the requirement to wear a helmet – apply to tobogganing and sledge accidents just as they do to skiing. Children in particular are frequently involved in accidents on toboggan runs. Here too, compensation following a toboggan or sledge accident is governed by the same rules, and here too, it is vital to secure evidence promptly.

What should you do following a skiing accident involving children?

• Notify the Alpine police: in the event of personal injury, the official accident report provides a record that may prove crucial in subsequent proceedings.
• Document the scene of the accident: Take photos of the slope, the route taken, visibility and snow conditions, as well as the volume of traffic.
• Secure evidence: Make a note of the names and contact details of any witnesses.
• Medical examination: Ensure that even seemingly minor injuries are documented immediately.
• Inform your insurance company – but do not sign anything: Report the incident to your liability, accident or legal expenses insurer, but do not admit liability.
• Seek legal advice: Ideally before making initial contact with the other party or the insurance company.

How can a solicitor help you?

• Clarifying the insurance cover: Is there a liability insurance policy in the child’s name – and does it cover children who are not criminally responsible? In practice, this single question determines the entire outcome of the case.
• Analysing the liability issue: Was there even a breach of the FIS rules? Was the child capable of understanding? Is the injured party partly to blame?
• Assessment of the duty of supervision: liability of the parents, the ski school or the ski instructor.
• Correspondence with insurers: We handle all communication with liability, accident and legal expenses insurers.
• Representation in court: Both in asserting and defending against claims – including the issue of the child’s proper representation during the proceedings.

Are you yourself facing claims against your child?

If your child is immediately taken to court, swift action is required. The legal situation is considerably more challenging for the opposing party than many assume: they must not only prove a breach of the rules, but also that the conditions set out in Section 1310 of the Austrian Civil Code (ABGB) have been met. A carefully constructed defence – based on the child’s skiing history, the insurance cover and a developmental psychology report – has good prospects of success.

Conclusion: With children, it’s the details that matter

Skiing accidents involving children are legally more complex than those involving adults. Whether liability arises at all depends on factors that may seem trivial at first glance: the child’s exact age to the month, their actual skiing history, whether they were wearing a helmet – and, above all, the small print of the liability insurance policy.

Whether you wish to secure compensation for your injured child or defend against a claim made against your child: seek legal advice at an early stage for any accident-related damage arising from skiing. Our law firm specialises in ski law. Lawyer Benedikt Walch is himself a state-certified ski instructor and ski guide, thereby providing his clients with not only a legal but also a technical advantage.

Mag. Benedikt Walch
office@ra-walch.at
+43 1 41 200 41

This article provides a general overview and is not a substitute for legal advice in individual cases.