The news of a family member’s accident can have health consequences. According to current case law, in such cases there may be a claim for pain and suffering (shock damage or grief pain compensation) against the injuring party.

Based on the Supreme Court’s decision on 9 Ob 1/19s, this article will deal with the issues of shock damage and grief of close relatives.

Shock damage

According to established case law, close relatives (e.g. parents, children, spouses, life partners) who suffer shock or other mental impairment to be assessed as an illness (e.g. depression) as a result of the death or serious bodily injury of their relative are entitled to an independent claim for damages for bodily injury against the tortfeasor.

It makes no difference whether the relative was involved in the accident themselves or had to witness the death or serious injury of their relative directly, or whether the illness only developed afterwards as a result of the psychological stress triggered by the death or serious injury.

This claim does not require the tortfeasor to be at fault, but is also due if the tortfeasor has only acted with slight negligence or is liable on the basis of strict liability.

However, claims for pain and suffering by close relatives for pathological shock damage are not only possible in the event of the victim’s death or serious physical injuries. In the case of psychological impairment of the victim caused by sexual abuse (especially during the victim’s minority), a close relative can also be awarded pain and suffering compensation for the shock damage, provided that the act and the consequences of the act are of a comparably high degree of severity. This was established in the Supreme Court’s recent decision on 9 Ob 1/19s.

The requirements for a claim for compensation for shock damage based on fault-based liability are based on §§ 1293 ff in conjunction with § 1325 ABGB. However, shock damage cannot only be compensated on the basis of fault. Liability can also exist on the basis of mere strict liability.

Case law requires a specific acute clinical picture for shock damage. Fear of future psychological consequences alone is not sufficient to claim shock damage.

For shock damage, therefore, a massive impact on the psychological sphere and not just a psychological impact on mental well-being must be examined.

Substitutable shock states are, for example, insomnia due to anxiety and nightmares, complete listlessness, exhaustion and isolation, post-traumatic stress disorder, hopelessness, sad moods or drive disorders.

In the case of shock injuries, in addition to compensation for pain and suffering, medical expenses and loss of earnings may also be considered.

Examples from the case law on shock damage

In 2 Ob 186/03x, the Supreme Court awarded compensation for pain and suffering (shock damage) in the amount of EUR 65,000.00 in an extreme case – the plaintiff lost his wife and three children in a traffic accident caused by the driver of a semitrailer and was no longer able to work after this shock experience.

In 2 Ob 212/04x, the partner and fiancé were awarded EUR 11,000.00 for the shock damage suffered as a result of the death notice.

In 2 Ob 135/07b, the disabled son suffered a massive depression with a time delay due to the accidental death of his mother, which ended in suicide – EUR 35,000.00 in compensation for pain and suffering was awarded.

In 2 Ob 58/07d, the minor plaintiffs involved in the accident were awarded EUR 7,500.00 and EUR 9,600.00 in pain and suffering compensation for shock damage (witnessing the father’s serious injury).

In 2 Ob 99/08k, the Supreme Court considered the pain and suffering compensation of EUR 20,000.00 awarded to a mother due to the development of an “abnormal grief reaction” as a result of the accidental death of her 12-year-old daughter to be appropriate.

In 2 Ob 138/10y, the Supreme Court did not consider the award of EUR 7,000.00 to the widow of the person killed in a traffic accident to be in need of correction due to the severe shock suffered.

Grief pain

According to new case law, close relatives are entitled to compensation for pure grief pain (emotional pain), irrespective of the existence of their own health impairment, if the injuring party is at fault (intent or gross negligence) for the loss of the close relative. Mourning pain is the emotional reaction caused by the loss of a close relative.

A tortious or contractual claim for compensation is to be awarded if a grossly culpable homicide (more recently also child swapping – 4 Ob 208/17t) has caused grief in a relative who had an intense emotional bond with the deceased.

In the case of slight negligence and in the case of strict liability, the claim does not exist because, according to case law, the required severity of the reason for attribution is lacking.

Examples from the case law on grief pain

In the decision 2 Ob 141/04f, the bereavement allowance to which an adult is entitled (loss of mother) was calculated at EUR 13,000.00.

In 2 Ob 90/05g, the Supreme Court held that bereavement damages (loss of brother) in the amount of EUR 9,000.00 were appropriate.

In 2 Ob 263/06z, the parents of the 6-year-old girl who was killed were each awarded EUR 20,000.00 in bereavement damages.

The award of bereavement compensation for the loss of a (beloved) pet is rejected.

Assessment of the claim

The assessment of the claim is based on the intensity of the family ties. Important criteria for this are, in particular, the degree of kinship, the age of the deceased and the relative as well as the existence of a household community, although it always depends on an assessment of the individual case.

Contributory negligence of the deceased reduces the claim of the relative.

If you wish to make a claim due to the death of a relative, please contact us. Make an appointment on 01/505 77 00 or office@toplaw.at