The contract stated that the theoretical and practical training would take place in accordance with the General Terms and Conditions and the curriculum of the Professional Association of Motor Vehicle Driving Schools and that the agreed training would be deemed to have been completed after 18 months from the date of registration. Furthermore, it was pointed out that in the quoted prices (among other things) "first-time test preparation and first-time test entry" is included.
[2] According to point 2.2.2 of the General Terms and Conditions for Driving Schools, the training and service packages also include "the presentation to and support at the first official driving test at the location of the driving school, if this is part of the booked training package and service package". According to point 3.2 the contract ends with the passing of the driving test or the issuing of the training certificate.
[3] The syllabus of the Austrian Association of Motor Driving Schools also provides for braking or full braking to the point of brake release readiness when overbraking from approx. 40 km/h and emergency braking in curves. The applicant put in the required hours of practice. Successfully passed the theory test from. There were no special incidents during the practice hours, the plaintiff never crashed. Shortly before the test, she also successfully rode the test course. She completed the rides on a motorcycle equipped with anti-lock braking system (ABS), only one short ride was made on the second motorcycle of the driving school, which does not have ABS. The two motorcycles differ – apart from ABS – mainly in torque by about 10%, which means that the motorcycle without ABS accelerates more slowly.
[5] It was planned that the applicant would also take the test on the 6th day. 5. 2016 with the motorcycle with ABS should complete. However, the examiner did not admit this motorcycle for testing because of minor defects. The applicant was offered a postponement of the test by the examiner and the driving instructor who was present, but she really wanted to take the test on that day. Before starting the test, she drove herself "a few laps" (approx. 15 minutes) on the motorcycle without ABS. In doing so, she was observed by the driving instructor, who did not like the plaintiff's lap driving. He also drew her attention to the fact that she was not allowed to brake when cornering. After that the test began. In the process, the examiner noted a slight error during the turn-in and a medium error during the slow slalom; the examiner and the driving instructor also noted other uncertainties on the part of the plaintiff.
[6] Part of the test was the so-called hazard braking, in which the examinees must accelerate to at least 50 km/h and then come to a stop within 19 m. In every motorcycle training course, it is therefore practiced to reach this speed as precisely as possible. If then another, even if similar motorcycle is used, already slight differences in length in the components such as grips, throttle cable, friction resistances etc. Are sufficient to be able to measure a few km/h difference with a trained hand position at the throttle twist grip.
[7] For this part of the test there are three attempts. The plaintiff failed all three attempts because she did not reach the required speed. Since the plaintiff wanted to pass the test, she asked the examiner for a fourth attempt, which was granted to her. During this attempt, she accelerated to a speed of 68 to 69 km/h. Braked jerkily with locking front wheel. In the process, the front wheel slipped, causing the plaintiff to fall and suffer a fracture of the right kneecap.
[8] The motorcycle with ABS would not have crashed because the front wheel was not locked. ABS was not the state of the art for two-wheelers in use in May 2016, but it was for a type rating. Since 1. 1. In 2017, motorcycles must have ABS when they are first registered. An obligation to the exclusive use of test motorcycles with ABS does not exist in driving schools to date.
[9] Increased acceleration was an obvious, albeit exaggerated, reaction of the plaintiff to a too slow initial speed and thus reaching a speed of just below 70 km/h was also obvious. At an initial speed of 50 km/h, an average braking deceleration of 4.7 m/sec² is required over 19 m, which corresponds to a stronger to strong service braking. At 70 km/h, on the other hand, a maximum braking deceleration of 9 m/sec² is necessary, which can only be mastered by extremely experienced motorcycle drivers.
[10] Experience shows that if the required 50 km/h is not reached three times, it can be assumed that the examinee is to be classified as too unsafe. Therefore, the exam manual states that in this case, the candidate's personal safety while driving in traffic is not given. Binding requirements of the driving school in questions of a necessary termination of the test by a driving instructor do not exist. The driving instructor present, who had not carried out the practical training with the plaintiff, did not have the necessary documents to determine the level of training, which is why the change to another test motorcycle should have been urgently avoided, especially since the plaintiff stated that she had never carried out this exercise without ABS before. She also underestimated the dangers of the practical exercise without a support system and overestimated her skills. Furthermore, the warm-up only lasted about 15 minutes, which must be judged as insufficient. Special braking exercises were not carried out.
[11] In the course of the theoretical training it is taught about braking that with a motorcycle without ABS there is an increased risk of falling in case of a stronger braking due to a possible locking of the front wheel and that a lot of practice is needed for the correct braking technique. This (and other identified) instructional content was also taught to the plaintiff at the defendant's driving school.
[12] The plaintiff had appeared for the test wearing a motorcycle jacket with protectors, a helmet, sturdy shoes and jeans. The examiner and the driving instructor had asked the plaintiff if she really wanted to take the test wearing only jeans, to which the plaintiff replied in the affirmative. The plaintiff knew that she could borrow motorcycle pants with protectors from the defendant. However, pants were only available in large size, but they could have been turned inside out. The plaintiff wanted to take the test wearing her jeans due to lack of riding comfort. The examiner pointed out to the plaintiff the possible dangers of. Injuries in the event of a fall.
[13] There are no special clothing requirements for either the training or the motorcycle test. However, if motorcycle pants with a knee protector had been used, the plaintiff's injuries would not have occurred because she would have had knee protection despite the larger size of the pants. No additional danger can be derived from the use of too large protective equipment.
[14] The plaintiff requested the award of 7.EUR 693.25, including pain and suffering damages in the amount of 5.500 EUR and the costs of the driving license course of 1.043 EUR. She had been provided by the defendant with a motorcycle without ABS, which was completely foreign to her. The defendant had not fulfilled his obligation as a contractual partner and driving school entrepreneur to exercise the greatest possible care towards his driving students and to provide motorcycles that are appropriate for road safety. The applicant was not informed in detail about possible difficulties or other problems with the "new" motorcycle and she only did a short warm-up lap with it. On the day of the test, the defendant had not provided any clothing even remotely suitable for her as a petite woman. It is the responsibility of the defendant or his driving instructors to correctly assess the ability of the learner drivers in the course of the training, in particular whether it is possible to master the exercises required for the practical test or not. If the defendant or his driving instructors had pointed out to the plaintiff that the driving behavior with such a motorcycle was completely different and that the exercises of the practical test should possibly have been trained by additional driving lessons, she would have done so and waived the test on the day of the accident.
[15] The defendant objected that the plaintiff had ridden both motorcycles, with and without ABS, in the course of her training as part of the so-called "comprehensive training". The examiner had refused the use of the motorcycle with ABS. The plaintiff was then offered to take the test on another day, but she refused. The plaintiff had been offered protective clothing (leather pants) several times before the exam as well as during the preparation for the exam, which she had also rejected. Only because of the plaintiff's insistence the examiner had let her drive a fourth time. In doing so, she had made a driving error which would have led to the plaintiff's fall even if the motorcycle had been equipped with ABS. There was no breach of duty by the defendant.
[16] The court of first instance granted the claim in the second instance with 6.EUR 650.25 sA and rejected the additional claim to the extent of the frustrated driving school costs in the amount of EUR 1,000.00.043 EUR sA undisputed (and therefore legally binding). In its legal assessment, it also made the statement, which was to be regarded as a further (dislocated) finding, that the evidentiary proceedings had "in no way" shown that the driving school had insisted on the wearing of protective clothing or that this had been demanded before the motorcycle was mounted. In legal terms, the court of first instance took the view that the driving instructor, who was present on behalf of the defendant, would have been obliged, on the basis of the training contract, to postpone the test due to the plaintiff's "insecurities and problems" and the use of a different motorcycle, and in any case to cancel it after numerous insecurities and mistakes had been noticed in the plaintiff. On the other hand, the plaintiff is not to be blamed for contributory negligence. This also applies to the failure to wear (complete) protective clothing. It would have been up to the defendant to emphatically point out to the plaintiff the dangers involved and also that the test would not take place without (complete) protective clothing.
[17] After supplementing the evidence, the Court of Appeal amended this decision to reduce the award to the plaintiff to 2.EUR 655.63 sA and its additional claim of EUR 5.00 sA.Dismissed the claim for EUR 037.62 sA. The court ruled that the ordinary appeal was admissible.
[18] On the basis of the facts of the case, which it assumed to be proven and which were essentially recapitulated at the beginning, the Court of Appeal came to the conclusion, by way of contractual interpretation, that the supervision of the plaintiff during the driving test by the defendant had been part of the training contract. The defendant was therefore still subject to contractual duties of protection and care during the driving test. It was therefore reproachable for him that he had let the plaintiff appear at the practical test with a motorcycle without ABS. The driving instructor, who was present for the defendant, should have known as an expert within the meaning of § 1299 ABGB that the two motorcycles were not identical and that the motorcycle without ABS accelerated more slowly. He had also noticed the insecurities of the plaintiff when driving in. The driving instructor should therefore not have admitted the plaintiff to the practical driving test, or at least should have strongly advised her not to take the test.
[19] The plaintiff was, however, contributorily at fault. She was not to be blamed for the driving error because special braking exercises with such a motorcycle had not been carried out during her training. Due to her theoretical training, however, she should have known that with a motorcycle without ABS there is an increased risk of falling when braking hard and that a lot of practice is required for the correct braking technique. She would therefore have been obliged to accept the offer to postpone the driving test. It must also be taken into account that the plaintiff was at the end of her training and, as the holder of a Class B driving license, should have known that she was only allowed to drive a vehicle if she could control it.
[20] When weighing up the misconduct of both parties, equal fault was appropriate. In addition, however, the compensation for pain and suffering was also to be reduced:
[21] The plaintiff is to be blamed as further carelessness in her own affairs for not having worn motorcycle trousers or protectors. In the case of learner drivers who first have to acquire driving experience, there is an increased risk of falls. It must be assumed that there is a general awareness in the circles involved that a reasonable and sensible learner driver wears adequate protective clothing because of the increased risk to himself or herself. Plaintiff could have borrowed motorcycle pants with knee protectors from defendant; whether they were unsightly was irrelevant. If she had worn such pants, the injuries would not have occurred. The plaintiff was therefore to be charged with a further contributory negligence of 25% with regard to the pain and suffering damages. This ultimately resulted in an award of compensation for pain and suffering of 2.063 EUR (5.500 : 2 = 2.750 x 75 % = 2.063).