2.2. Conclusions The extent of duty of care in gastonomy is assessed on a on a case-by-case basis by the Austrian Supreme Court. A number of judments deal with the particularities of the alpine region and the respective weather conditions. The Supreme Court tries to reasonably balance the duty of care of the restaurateur on the one hand and the guest’s personal responsibility on the other. Foreseeability is taken into account on both sides: the more foreseeable a particular source of danger is for the restaurateur, the more likely they are to be obliged to take measures to prevent it, and the more the guest must anticipate a particular danger, the more caution they must exercise themselves. Adminstrative Regulations like regulations on construction safety or employee protection can provide indications of the safety standard to be expected. The case studies provide a good overview of the aspects that need to be considered in each case. III. FOOD SAFETY The Austrian Food Safety and Consumer Protection Act (LMSVG)16 which covers all stages of production, processing and distribution, regulates, among other things, the requirements for food and water intended for human consumption. It is intended to protect the health of consumers and also to protect them from deception.17 It therefore explicitly prohibits the distribution of comestibles which are unsafe (harmful to health or unfit for consumption), falsified or devalued or not compliant with regulations issued under this Act.18 The gastronomy sector has to observe these provisions, and in particular ensure hygiene, to comply with the legal requirements. Any non-compliance will inevitably lead to liability if damage is caused as a result. The main problem for claimants is the proof that their damage was caused by the particular food served in a certain restaurant. 3.1. Case studies Other than in the public safety cases above, there are only very few cases published with regard to food safety. 16 Lebensmittelsicherheits- und Verbraucherschutzgesetz (LMSVG), BGBl I 2006/13, most recently amended by BGBl I 186/2023. 17 Sec. 2 LMSVG. 18 Sec 5(1) LMSVG 197 LIABILITY ISSUES IN THE GASTRONOMY SECTOR
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