Understanding Compensation for Damages in Austria- Prerequisites for Claim

Understanding Compensation for Damages in Austria- Prerequisites for Claim
Understanding Compensation for Damages in Austria- Prerequisites for Claim

Understanding Compensation for Damages in Austria- Prerequisites for Claim


Majority of private civil law litigations are affiliated with damage compensation, or involve damage claim litigation. The victim usually demands for compensation for the loss incurred or injury suffered.

Although damage compensation claims are private law-based claims and are frequently litigated in civil courts, in Austria, this claim can also be litigated in criminal courts if the act, which resulted in the damage, is subject to criminal prosecution.

When the court is faced with this nature of proceedings, it is expected to consider and determine certain issues before awarding the compensation claimed by the victim. Some of the issues will usually be:

  1. What action gave rise to the damage?
  2. Who caused the damage?
  3. Was the damage caused by accident, negligence, or intentionally?
  4. Did the victim contribute in any way to the action that caused the damage?
  5. Is there more than one culpable perpetrator?
  6. Can the victim be compensated in any other way other than by monetary compensation?
  7. How much compensation is okay for the pain and suffering occasioned to the victim?
  8. Is this action statute barred?

Where the court is satisfied that the victim has proved its claim against the perpetrator and is entitled to the damage compensation, the court is guided by some principles that will help it calculate the actual amount to be given to the victim.

Meaning of Damage under Austrian Damage Compensation Law

The law defines damage as ‘disadvantages caused to someone’s assets, rights or person’.


What Actions Give Rise to Damage Compensation Claims?

The acts which give rise to damage compensation claims commonly arise from ‘breach of contract’ and ‘tort’ (encumbrance liability). Thus, where there is a breach of contractual obligations, or a breach of tort obligations, a victim can file a damage compensation claim against the perpetrator.


Apart from these common cases, other kinds of actions give rise to damage compensation claims and they are as follows:

  • Where a victim suffers damages due to the materialization of abstract dangers (absolute liability), this can give rise to a damage compensation claim.


  • Where damage is caused to a victim by an act of legitimate interference, a victim can also file a damage compensation claim.


Who Bears the Liability for Damages under Austrian Compensation Law?

Generally, under Austrian law, any natural or legal person who sustains a disadvantage or damage is required to cover the damage on his own. This principle is however subject to exceptions. It does not apply where the victim is able to prove certain grounds which clearly show that another person is liable for the disadvantage or damage.

In cases where encumbrance liability, absolute liability, liability on the grounds of interference are proven, the law has placed standards that holds other persons, whether natural or artificial, liable for the damage or disadvantage suffered by another. These standards gave rise to the term ‘damage compensation legislation/law’.


Thus, a victim who seeks to obtain compensation for the damages he has suffered must prove certain prerequisites.


What are the Prerequisites that must Exist for a Successful Damage Compensation Claim?

There are four prerequisites that must exist to make a perpetrator liable to compensate a victim for the damage suffered by the later. These prerequisites are:

  • There must be prove that the victim has suffered the damagee. prove that damage has occurred.


  • There must be prove that the damage was caused by the act of the perpetrator, and not merely a product of ‘absolute coincidence’. In other words, there must be prove that the damage would not have occurred had the perpetrator not carried out the act that he did. If the damage would still have occurred in the absence of the perpetrator’s conduct, then there is no causation.


  • The perpetrator’s action was unlawfule. not permitted by law.


  • The perpetrator is culpable for the damage. To determine culpability, the perpetrator’s age will be considered. The court will also consider factors like, negligence, or intention of the perpetrator.


Is a Victim always Entitled to Monetary Compensation?

Under Austria’s damage compensation law, the ‘principle of restoration’ is primarily applied in damage compensation claims. The law seeks to restore or restitute the victim to the state he was before the damage occurred. If restitution or restoration is possible, the option of monetary compensation may not be considered.


But where the damage is such that it is not possible or feasible to restore or restitute a victim to his previous state, or the only form of restitution is to repay the sum lost by the victim, the court will consider the option of monetary compensation. Therefore, a victim’s entitlement to monetary compensation depends on the nature of the damage and impossibility/non-feasibility of restitution.


What Categories of Damages exist under the Damage Compensation Law?

The law recognizes two categories of damages.

  • Pecuniary damages: These are damages to which a monetary value can be assigned.


  • Intangible Damages: These damages cannot be assigned a monetary value as the loss suffered by the victim cannot be translated into an amount of money.


The law also makes a distinction between:

  • Positive or Actual Damages: These are actual loss or materialized disadvantages that have been suffered by the victim, e.g. where a victim loses assets or any tangible property.


  • Loss of Profits: These covers cases where a victim has lost an opportunity to generate certain earnings. Thus, no actual physical damage has been occasioned.


How Does a Victim Pursue a Damage Compensation Claim when the Perpetrator’s Act is Criminal?


Where the perpetrator’s act amounts to a crime, and damage has been occasioned to the victim, the victim has two options:

  • File a separate damage compensation claim against the perpetrator before a civil court; or


  • Join the criminal proceeding as a private party with a private law-based claim.


For the latter option, the following procedures should be followed by the victim in order to make a successful claim:

  • File a criminal complaint, or report the crime to the court. This will enable the victim participate in the criminal proceedings.


  • Exercise the option of joining the proceeding as a private party with his/her own private law-based claims; and
  • The victim should bring his or her private law based-claims to the notice of the court.


If the court gives a verdict against the defendant in the criminal proceedings, the court will simultaneously rule on the victim’s private law-based claim. The court can award the total claim or amount sort by the victim. But usually, it awards a portion of the amount claimed. If the court does the later, the victim can proceed to file the compensation claim at the civil court for the balance of the compensation amount.


Out of court settlement options can also be utilized too. Most likely, the perpetrator would rather opt for this, just to avoid further litigation before a civil court.


Who Bears the Burden of Proving Compensation?

A damage compensation claim has the chances of succeeding when the four prerequisites, earlier indicated, are proven. The burden of proving these factors rests on the victim.


If the course of events is typical, i.e. follows the normal course of events that is expected to take place in cases similar to the specific case at hand, the prima facie principle will usually be applied by the court until and unless, the opposing party proves facts which rebut the prima facie evidence.


Thus, in Austria evidential law, every party is mandatorily expected to prove facts that support the party’s assertions and are favourable to his/her legal stance.

What Principles Govern the Calculation of Damage Compensation Due to a Victim?

Where you cannot restitute a victim to his previous state, how do you adequately determine the amount that will adequately compensate the loss or disadvantage that a victim has suffered?


This question reveals how complex the calculation of damage compensation can be, especially when it involves intangible damages like personal injuries. Nevertheless, certain principles guide the court in calculating the amount due to the victim.


The principles are as follows:

  • Splitting of Damage Compensation Amount where there is Contributory Negligence: If the victim’s conduct partially contributed to the damage, the liability is allocated according to their culpability ratio.



If their culpability ratio cannot be determined, the court is likely to award half of the damages against the perpetrator, while the victim bears the other half.


So, in all cases of contributory negligence, the compensation is split between the victim and the perpetrator.


  • Joint and Several Liability of Multiple Perpetrators: If damage was occasioned to the victim by multiple perpetrators who conspired with each other to cause the damage, each perpetrator is jointly and severally liable to the victim.


But, where the culpability ratio of each perpetrator can be determined, each individual will be liable for his own share in the damages.


  • Difference Theory: If the damage is occasioned to a victim’s assets, in Austria’s law, the amount which the victim will be entitled to receive as damages will be determined by applying the ‘difference theory’.


In applying this theory, the court considers the difference between the victim’s current assets after sustaining damages and the asset the victim would have had the damage not be sustained.


  • The pain and suffering the victim has endured or is enduring: Even though it is difficult to compensate a person for pain and suffering, the court at least tries to award monetary settlement to the victim for the inconvenience he/she is enduring. In computing the monetary compensation to be awarded, the courts are guided by the Schmerzensgeldtabellen (pain and suffering compensation tables).


For personal injuries, especially in cases where the physical or mental health of the victim has been impaired, the court will consider the following factors in calculating the monetary compensation to be awarded.

  • The costs directly incurred as medical and recovery expenses i.e. the amount directly spent for the victim’s recovery.


  • Whether the perpetrators actions led to the temporary or permanent incapacitation of the victim, as to render him unable to generate future earnings/wages? If the victim is any of these states, it is mandatory to award a monetary compensation against the perpetrator to make up for the lost wages and earning potentials of the victim.


  • The pain and suffering the victim has endured or is enduring as a result of the personal injuries.


  • Whether the perpetrator’s action was due to negligence (including the degree of negligence), or a premeditated act (i.e. done intentionally)? If it was due to a minor negligence, compensation is awarded only for actual damage suffered. If the perpetrator’s action was intentional or gross negligence, compensation may cover both actual damage and loss of profits.


When can a Damage Compensation Claim be Filed?

Generally, damage compensation claims can be filed within 30 years. So, the general statute of limitation for every damage compensation claim is 30 years.

However, a victim is expected to file a law suit for damage compensation within 3 years, beginning from the date the victim had knowledge of the damages and the perpetrator’s identity.



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