In the case 4 Ob 109/24v, the Austrian Supreme Court confirmed the claim for a declaratory judgment for future damages that could not be ruled out due to pollutant emissions from a ventilator.

The Austrian Supreme Court clarifies that if a respirator, which is to be used for many hours every night over a long period of time, contains a material that can decompose and enter the lungs and/or release chemicals, which can cause damage to health, the device does not meet the reasonable safety expectations of an average user (regardless of a breach of special safety regulations for medical devices).

The plaintiff has thus already proven a product default within the meaning of § 5 PHG (at the time of placing on the market in accordance with § 6 PHG). The decisive factor for product liability is whether the product has an unexpected safety deficit (see 6 Ob 162/05z). Whether the potentially dangerous PE-PUR foam in the plaintiff's device actually decomposed during its use and got into his lungs or released chemicals is, contrary to the defendant's view, not decisive for the assessment of defectiveness here (see also Posch/Terlitza in Schwimann/Kodek, ABGB Praxiskommentar, § 1 PHG Rz 3 mwN).