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Compensation for Damages in Austria – From the Calculation of Compensation for Pain and Suffering to Damage Compensation Litigation. Austrian Damage Compensation Legislation, Tort – On Your Side from West (Innsbruck) to East (Vienna): Your Law Experts Attorneys Austria

 

Austrian Damage Compensation Law: An Important Part of Every Legal Practice – Your Attorneys in Austria

The practice of damage compensation law is one of the most important legal fields in Austria and around the world. More than half of all civil law-based legal matters are estimated to be affiliated with damage compensation matters or refer to damage claim litigation in some way.

Given that the damages sustained by a piece of property (for instance material damages to a car caused by a traffic accident) or worse, physical injuries suffered by individuals (e.g. paralysis resulting from an accident, medical malpractice at the hospital), can frequently be significant, it is hardly surprising that quite a few of these cases are litigated in court. In many situations it is not easy to determine who caused the damages or how the damages were inflicted and who is “to blame.” For instance, if an individual suffers permanent physical impairments as a result of such damages, this will also affect this individual’s ability to earn a living for the rest of his or her life, which consequently results in very substantial compensation demands.

Besides the dimension of the damages incurred under civil law aspects, such as the amount of compensation to be paid, the dimension of criminal law may also have to be taken into account. For instance, as far as the criminal code is concerned, the question may arise whether the party responsible for the damages committed an act that is subject to criminal prosecution (for example by causing a traffic accident while under the influence of alcohol). Hence, damage compensation cases are frequently litigated in civil as well as criminal courts.

 

Prerequisites for Damage Compensation, Austrian Damage Compensation Law / Tort – Attorneys in Austria

Austria’s damage compensation legislation is based on the principle that everyone must cover their own damages. Hence, § 1311 ABGB (Austrian Civil Code) states the following:

Mere coincidence affects the one whose assets are harmed or who is personally injured by the accident. However, if someone has culpably caused the coincidence; i.e. if the perpetrator has violated a law that aims at preventing accidental damages; or if he or she has interfered with third party business without having cause to do so, this party shall be liable for all disadvantages that would otherwise not have arisen.”

The consequence of this law is that certain prerequisites must exist if one seeks to obtain compensation for damages one has sustained from somebody else.

In Austria’s damage compensation legislation, these prerequisites are based on the concept of a certain compensation role. If someone has sustained certain damages and the former were illegally and culpably caused by another party, the aim is to give the victim defined compensation for the damages suffered. As a result, Austria’s damage compensation legislation primarily applies the principle of restoration of the previous state (natural restitution). The option referred to as “monetary compensation” for sustained damages cannot be considered unless what is defined as natural restitution is not possible or feasible.

As a matter of principle, there are four prerequisites that must be met for damages to render the victim eligible for compensation:

  • Damages: The fundamental requirement for anyone to be eligible for damage compensation is – of course – that damages were actually incurred.
  • Causation: Eligibility is also contingent upon the damages having been caused by another party and that they are not merely a product of an "absolute coincidence." Consequently, a certain behaviour is the reason or cause if the damages would not have been incurred in the absence of this type of behaviour. Based on this causality theory, the aim is to determine whether the specific damages would also have been sustained if one does not take the respective conduct or actions into account.
  • Unlawfulness: The right to demand compensation for damages from someone else also hinges on the perpetrator having committed unlawful acts. A perpetrator commits an illegal act if he or she violates a provision or commits an act prohibited by law.
  • Culpability: If someone causes damages, it must also be investigated whether the perpetrator can be held liable for the behaviour that resulted in these damages. A perpetrator can be held liable for conduct if one could also have expected the perpetrator to act in compliance with the law. For instance, the perpetrator’s age plays a role with regard to his or her legal competency. Other matters that also have to be examined are whether intent or negligence played a role.
 

Compensation for Damages in Civil Law and Criminal Law, Joinder of Private Parties – Attorneys in Austria

Damage compensation claims are frequently based on behaviours (e.g. personal injury, embezzlement, fraud) that the law notably opposes, and which are considered particularly harmful for society. Besides the civil law-based options of damage compensation, additional sanctions are available within the framework of criminal law.

Consequently, victims of behaviours or crimes also sanctioned by criminal law have the option to not only prosecute the perpetrating individuals or companies using the remedies available to them under civil law. They may also file a pertinent criminal complaint or report a crime to the court and thus participate in criminal proceedings.

If this is the case, the victim is not only a witness in the criminal proceeding, but also has the option to join the proceeding as a private party with his or her own private law-based claims (e.g. damage compensation). This gives the victim the opportunity to participate in the criminal proceeding. This is the only option available to gain access to review the court files (discovery) and to thus learn about the proceeding’s progress. If a verdict against the defendant is made in the criminal proceeding, the court simultaneously rules on the private law-based claims of the victim and, in most cases, awards a portion of these entitlements already during the criminal proceeding. If only a portion of the compensation amount is awarded, the claimant is remanded to the civil court remedies for the balance of the damage compensation amount. However, the fact that a portion of the amount is awarded in the criminal proceeding, frequently leads to out-of-court settlements for the entire damage compensation claim and the conclusion of the legal matter without the involvement of civil courts. If this should not be possible, the damage compensation amount that has not already been awarded can still be obtained by filing a civil complaint with the competent courts.

 

Your Damage Compensation Law Experts, Attorneys Gamsjäger and Dr Wiesflecker - Your Attorneys in Austria

When it comes to out-of-court settlements, the criminal law-based assessment and prosecution or defence of cases as well as the evaluation of causality matters and the assessment of the compensation / pain and suffering amounts to ask for, Law Experts Attorneys’ Stefan Gamsjäger, Esq, is an expert with a proven track record in all of these disciplines.

Thanks to the wealth of experience acquired while working for renowned, internationally engaged corporate law firms for many years, paired with his expertise in domestic and international civil proceedings and civil law, Dr Hannes Wiesflecker has all of the tools to successfully assist you as your legal counsel in damage compensation litigation. Attorney Dr Wiesflecker has also successfully completed the International Legal English Certificate (ILEC, University of Cambridge, UK). He is thus able to provide effective legal advice and work in English.

Law Experts Attorneys boast international experience and have offices in Innsbruck (domicile of the law firm), Telfs and Vienna. We are ready to assist you with comprehensive legal advice and representation in all disciplines of damage compensation law anywhere in Austriain court and out of court. Listed below are just some of the services we offer:

  • Verification of damage compensation claims with regard to their legal grounds and amounts; assessment of procedural and cost risks
  • Out-of-court negotiation of damage compensation settlements or monetary demands for pain and suffering and execution of settlements; negotiation of such settlements with e.g. liability insurance underwriters
  • In-court pursuit of damage compensation and/or pain and suffering compensation awards
  • Defence against allegations without merit aiming at the collection of damage compensation from corporations
  • Representation in criminal proceedings and assessment of damage incidents, prosecution or defence
 
Click here to send an e-mail to Law Experts Attorneys or call us at +43(512)586 586.

 

 

 

 

Mitglied von: Die österreichischen Rechtsanwälte, ÖGEBAU, Corporate INTL, GLOBAL LAW EXPERTS, LEGAL 500

 

 

Austrian Damage Compensation Law / Tort, Calculation of Demands of Compensation for Pain and Suffering; Filing of Damage Compensation Claims in Court, Austrian Damage Compensation Law: Research Examples of Other Aspects of Austrian Damage Compensation Law Below:

 

Austrian Damage Compensation Laws, Tort – The Basics; Prerequisites, Attorney Austria

Any natural or legal person sustaining disadvantages or damages is principally required to cover these damages (see also the earlier reference to § 1311 Sentence 1 ABGB [Austrian Civil Code]) on their own. This principle does not apply if certain grounds for liability allocation exist (encumbrance liability, absolute liability, liability on the grounds of interference). In these cases, standards are in place that hold other persons, entities or companies liable.

Hence, the term “damage compensation legislation/law” refers to all of the standards that determine the scenarios under which a damaged party is in a position to demand compensation from others for the damages the claimant has sustained.

A victim is in a position to demand compensation for damages from the perpetrator if the latter has caused the damages by committing illegal and culpable acts. In Austria, the requirements that render victims eligible for damage compensation can roughly be divided into those resulting from liability for the culpable breach of contractual or tort obligations (category encumbrance liability) or those arising from liability due to the materialization of abstract dangers (category absolute liability) and into cases where liability has to be assumed on the grounds of legitimate interference. Within the scope of these regulations, encumbrance liability constitutes the core of liability legislation.

In addition to a sufficiently serious violation of the law when causing the damages that entitle the victim to compensation, encumbrance liability is also contingent upon culpability (meaning the perpetrator can be held personally responsible). To that end, the law distinguishes between liability due to a breach of contract and tort acts that cause damages. The third category is absolute liability, which imposes liability for objectively dangerous conduct and is not contingent upon culpability.

 

Austrian Damage Compensation Laws - Definition of the Term “Damages”, Tort Claims, Attorney Austria

The law defines the term “Damages” as “Disadvantages caused to someone’s assets, rights or person” (§ 1293 ABGB). In Austria’s judicature, the amount of damages is determined through the deployment of the difference theory. Consequently, the amount of damages is equivalent to the difference between the assets the victim has after sustaining the damages and the assets the victim would have had he or she not sustained the damages.

Austria’s damage compensation law also makes a critical distinction between contract and tort liability.

As previously explained, the principle of natural restitution governs Austria’s damage compensation law. If natural restitution is possible and feasible, the victim has the option to either demand the reinstatement of the prior state or monetary compensation. Hence, the position of the victim is similar to the position of a creditor who has two options to collect a debt. Principally, the perpetrator is required to provide the chosen natural restitution. In most cases, this means that the longer the condition caused by the damages persists, the higher the compensation due will be. Consequently, the perpetrator also has an obligation to mitigate (reduce) the potential damages.

 

Austrian Damage Compensation Laws – Categories of Damages, Attorney Austria

Principally, damage compensation law knows two categories of damages: On the one hand, pecuniary damages that can be assigned a monetary value and on the other hand, intangible damages that cannot be directly translated into an amount of money.

Damage compensation law also distinguishes between positive (actual) damages incurred and lost profits. This additional differentiation is made to classify actual damages that have materialized to describe the loss of tangible property resulting from the loss of a certain legal asset. The other category is referred to as “lost profits.” The term refers to a reduction of assets that did not actually materialize and is defined as the loss of an opportunity to generate certain earnings.

 

Calculation of the Damage Compensation Due, Damage Compensation Amount, Calculation of the Compensation for Pain and Suffering, Pain and Suffering Amount, Tort Settlement, Attorney Austria

The calculation of the damage compensation due can be a complex process, especially if damages include personal injuries. If the physical or mental health of a person has been impaired, the damages to be compensated comprise the following components:

  • Medical and recovery expenses: The term “medical and recovery expenses” refers to all costs that have to be directly expended to recover from the health impairments the victim has sustained.
  • Lost wages: If an incident prevents the victim from earning potential wages or from generating future earnings, it is mandatory for the perpetrator to pay compensation.
  • Pain and suffering: What makes it so hard to determine how to compensate a victim for pain and suffering is that there really is no way or it is very difficult to financially compensate anyone for their pain and suffering. Hence, it is almost impossible to come up with a monetary amount that puts the victim into a satisfactory state. After all, it is a fact that “natural restitution” is not an option if someone has suffered physical injuries or is to be compensated for pain and suffering. Consequently, the primary purpose of compensation for pain and suffering is to award the victim a specific settlement for the inconveniences he or she incurred or is still experiencing. In actual litigation, Austrian courts compute the compensation awards for pain and suffering based on tables called “Schmerzensgeldtabellen” (Pain and Suffering Compensation Tables). The aim is to ensure that Austrian courts do not arrive at completely different awards for individuals who have sustained similar injuries. Unfortunately, the compensation amounts for pain and suffering awarded based on these tables are not comparable with punitive damages awarded in the United States. In most cases, they are extremely small compared to the impairments victims may have to live with.

The scope of the awarded damage compensation also depends on whether damages were caused by negligent acts or worse, intentionally (premeditated acts). If the damages have to be attributed to minor negligence, compensation will merely be awarded for positive (actual) damages. If they were caused by gross neglect or were intentionally inflicted, the injured party is in a position to demand full satisfaction, which includes compensation for lost profits. For damages caused by acts of minor negligence, the general value, i.e. the value of the matter at the time the damages occurred, is awarded.

 

Splitting of Damage Compensation Amounts – Culpability of the Victim in Austrian Damage Compensation Law, Attorney Austria

In some extraordinary cases, a specific part of the culpability may be attributed to the victim. This happens traditionally and most frequently with traffic or skiing accidents, if the damages were not just caused by one person’s behaviour and the other party involved also did something wrong (e.g. if he or she forgot to check for traffic behind or to activate the indicator light before changing lanes). In those cases, the Austrian Civil Code (ABGB) mandates that if the victim is partially responsible for the damages, the victim must assume the respective portion or half of the liability for the damages. The percentages of liability allocated to perpetrator and victim depend on their culpability ratios. In the event of doubt and if it is not possible to concisely determine these shares, the perpetrator should compensate the victim for at least half of the damages. In established Oberster Gerichtshof (Austrian Supreme Court) case law, the extent and the likelihood of the culpably caused risk, the relevancy of the violated provision and the question of negligence are the primary factors considered in split culpability rulings.

 

Multiple Perpetrator Liability in Austrian Damage Compensation Law, Attorney Austria

If multiple perpetrators have knowingly and intentionally collaborated to cause damages, these perpetrators are jointly and severally liable vis-à-vis the victim. However, if the respective percentage of the damage caused by each perpetrator can be concisely attributed to each person, each individual will be held liable for that person’s share in the damages as a matter of principle if the act was a case of negligence.

 

The Burden of Proof in Austrian Damage Compensation Law, Attorney Austria

Principally, the burden of proof that the victim has sustained damages and that the perpetrator is culpable for these damages is upon the victim. In Austria, it is generally mandatory for each party to prove the facts that are favourable to that party’s legal stance. If the course of events is typical, case law frequently also applies the prima facie rule of evidence. Prima facie means “first appearances,” i.e. this type of proof is based on the assumption that certain courses of events are typical and that is therefore highly likely that a typical course events also took place in the specific case on hand. The opposing party can rebut prima facie evidence by proving facts giving rise to a genuine possibility that the course of events was atypical.

 

Compensation for Pain and Suffering in Austrian Damage Compensation Law – Amount of Compensation for Pain and Suffering, Attorney Austria

The fundamental objective of compensation for pain and suffering is to remedy all types of pain – on the physical and mental level. The amount of compensation awarded for pain and suffering also aims at including considerations for any permanent damages and the risk of deterioration affiliated with all the hardship arising from the injury.

In this context, a ruling made by the Austrian Supreme Court back in 1955 (6th July 1955) is an interesting point of reference:

The entitlement to compensation for pain and suffering does not constitute an ordinary claim for damage compensation, but an entitlement all of its own that has a dual effect: Its purpose is to offer the victim adequate compensation for damages that are not pecuniary in nature. At the same time, it is supposed to take into account that the party causing the damages, owes the victim reparation for what he/she has done to him/her.

When determining this equitable compensation, it is principally permissible to consider all circumstances related to the matter, including the degree of culpability of the liable party and the financial situation of both parties. The absolute focus should be on the consideration of the level and dimension of impairment of the quality of life (level, severity and duration of the pain, suffering and disfiguration), while the other circumstances must be ranked in accordance with the special scenario of the specific case. If the liable party is in a position to substitute its own performance by filing a claim for compensation or with a liability insurance underwriter, this will have to be taken into account when assessing this party’s financial state.

If there are multiple perpetrators, the compensation to be paid by each may have to be determined individually pursuant to § 847 BGB. If all perpetrators are liable for the same amount, they are joint and several debtors. Only the party required to pay a higher compensation amount is individually liable for an exceeding amount, if any.

If a victim claims compensation for the pain he or she suffered (e.g. as a result of a traffic accident or surgery not performed in compliance with lege artis standards), a general assessment will have to be performed that provides sweeping coverage for all currently unforeseeable pain and suffering. Principally, compensation for pain and suffering should be a one-time settlement payment for all of the hardship the injured party will have to experience.

 

Statutes of Limitation for Damage Compensation, Compensation for Pain and Suffering, Attorney Austria

An entitlement to damage compensation or compensation for pain and suffering does not become due until a specific claim has been made by way of a notice, law suit or the filing of an extension of a court action.

As a matter of principle, it is possible to file damage compensation claims in court within 30 years. Every damage compensation claim – even if it aims primarily at natural restitution – is subject to an absolute statute of limitations of 30 years pursuant to § 1489 ABGB.

However, as of the date of knowledge of the damages and the perpetrator, law suits have to be filed within 3 years.