Damages in Austria – Your Right to Compensation
Attorney, expert in criminal law & civil law, owner of the IBESICH law firm
Legal Notice/Disclaimer: The following information is intended for general guidance only and does not replace individual legal advice. For advice tailored to your specific situation, please consult a lawyer or another qualified legal professional.
Whether it’s a traffic accident, a medical malpractice, or an everyday mishap – if someone else causes you harm, you may be entitled to compensation under certain conditions. The aim of Austrian tort law is to restore the injured party to the position they would have been in had the damage never occurred (principle of full compensation). This means you should receive compensation for all financial losses and, in cases of bodily injury, also a reasonable amount for pain and suffering (non-material compensation for pain and distress). In this guide, you will learn in an understandable way about the claims you are entitled to, the conditions that must be met, and how you can enforce your right to compensation.
- Claim for Damages: If someone unlawfully and culpably causes you harm, you can demand compensation for the entire damage from that person. The aim is to restore your financial situation to what it was before the damage occurred (no “profit” from compensation).
- Requirements: There must be actual damage that was caused by the wrongdoer and is based on unlawful and blameworthy (negligent or intentional) behavior. In special cases, the wrongdoer may also be liable without fault (e.g., under the Product Liability Act or the Railway and Motor Vehicle Liability Act).
- Types of Damage: Both material damages (e.g., repair costs, medical expenses, loss of earnings) and immaterial damages (especially compensation for pain and suffering in cases of bodily injury) are compensated. Follow-up costs such as attorney or expert fees after an accident can also be part of the compensation.
- Contributory Negligence: If the victim bears some responsibility for the accident or damage, their claim is reduced proportionally. By law, the wrongdoer and the victim share the damage according to their degree of fault; if the ratio is unclear, each party bears half. A violation of the duty to mitigate damages (e.g., if the victim allows the damage to increase) also leads to a reduction of the compensation claim.
- Liability Insurance: In many cases, the liability insurance of the wrongdoer covers the payment. For example, in traffic accidents, all motor vehicles are liability insured – you can assert your claims directly with the opposing insurance. But be careful: insurance companies often try to minimize the amount – in case of doubt, the offer should be reviewed by a legal expert.
- Statute of Limitations: Claims for damages expire after 30 years from the damaging event. Important: From the moment you become aware of the damage and the wrongdoer (usually from the time of the accident), the period is only 3 years. After that, the claim can no longer be enforced in court.
- Enforcement: Initially, negotiations are usually conducted out of court – many cases can be settled through a settlement with the insurance. If no agreement is reached, the claim must be enforced through a lawsuit. In the process, evidence (e.g., accident reports, medical expert opinions) is crucial. Generally, the losing party bears the legal costs, so if you win, most of the attorney and court costs are to be reimbursed by the wrongdoer or their insurance.
- Legal Support: Especially in cases of personal injury or complex matters, legal assistance is advisable. An experienced personal injury attorney knows all the claims positions, assists in securing evidence, and consistently enforces your demands – if necessary, in court. Law firms often offer an initial consultation to discuss the chances of success and costs.
Table of Content
Compensation for Damages – Overview
The term compensation for damages refers to the legal claim for restitution of a loss. The General Civil Code (ABGB) defines damage as “any disadvantage that has been inflicted on someone’s property, rights, or person.” This broad definition of damage includes both material damage (e.g., damaged property or lost income) and immaterial impairments (such as pain or emotional distress). It is important to distinguish the actual damage from lost profits – that is, benefits that one would have reasonably expected to have without the damaging event. Such loss of profit can also be compensable, but conceptually it is included in the definition of damage.
In Austria, the principle of fault generally applies: If someone has caused damage culpably and unlawfully, they must compensate the injured party for the resulting damage. This liability can arise from a breach of contract or from a tort (i.e., without a contractual relationship). However, in some cases, the law provides for liability without fault – this is referred to as strict liability. Examples include product liability law or the liability of vehicle owners under the Railway and Motor Vehicle Liability Act, where the inherent danger of an otherwise permitted activity (such as product manufacturing or vehicle operation) can lead to compensation obligations.
The goal of compensation for damages is full restitution. The injured party should be placed in the position they would have been in had the damaging event not occurred. Therefore, all disadvantages caused by the injurer are generally compensable. However, enrichment is not permissible – compensation for damages is not intended to provide the victim with a profit, but only to offset the damage suffered. Unlike in the USA, Austrian law does not recognize “punitive damages.” It is about compensation, not punishment.
Full compensation for bodily injuries also includes the compensation for immaterial damage. Pain, emotional suffering, or even mere inconveniences may not have a market value, but they are compensated through what is known as pain and suffering damages. This is in addition to the medical costs and lost earnings that the injured party is entitled to upon request. Pain and suffering damages are intended to adequately compensate for the suffering endured and provide the victim with a small “compensation” for pain and loss of enjoyment of life. The specific amount is determined by the severity and duration of the impairment (see below).
Requirements for a Claim for Damages
For a claim for damages to arise, four fundamental requirements must be met: Damage, Illegality, Fault, and Causation. If any of these conditions are missing, the injured party will not receive compensation. Below is an overview:
Damage: There must be a real damage incurred – that is, a disadvantage to assets, rights, or the person. No compensation without damage: mere annoyance or inconvenience is not sufficient. The damage can consist of a reduction in existing values (e.g., a broken item, physical injury) or loss of profit. Necessary expenses for remedying the damage (such as repair costs, medical expenses) also count as damage.
Illegality: The damage must have been caused by behavior that is objectively illegal. Illegal behavior is an act or omission that violates a legal obligation, good morals, or contractual duties. Examples: Running a red light or violating traffic regulations is illegal – if it causes an accident, illegality is present. A breach of contract (e.g., non-delivery of a paid item) can also trigger liability for damages because the contractual obligation has been violated. In some cases, behavior may be not illegal despite causing damage – for instance, in self-defense, in cases of permissible risk, or with the consent of the injured party.
Fault: The injurer must personally bear fault, meaning their misconduct must be blameworthy. Fault exists in two forms: Negligence (the individual was not as careful as reasonably required) and Intent (the damage was deliberately and knowingly caused). Legally, a distinction is made between slight and gross negligence: Slight negligence is a mistake that can happen to careful individuals; gross negligence occurs when someone neglects the required care to an unusually high degree. Intent means that the injurer caused the damage intentionally or at least with acceptance of the risk. If there is no fault – for example, because it was an unforeseeable accident – there is generally no compensation for damages.
No liability without fault: Children under 14 years of age and individuals with severe mental illness are generally not held responsible for damages they cause. Therefore, they are typically not liable in tort. However, in certain circumstances, their guardians (parents, caregivers) may be liable for neglecting their duty of supervision. In specific cases, the law also provides for a fairness liability for tortfeasor incapable of fault if it seems fair and the affected party has liability insurance – in such cases, legal advice should be sought.
Causation: There must be a causal connection between the behavior of the injurer and the damage incurred. The harmful behavior must have been a conditio sine qua non for the damage – in everyday language: Without the action of the injurer, the damage would not have occurred. However, mere condition is not always sufficient: Jurisprudence limits liability through attribution rules. Extremely unlikely or far-fetched causal chains are excluded to prevent limitless liability. Example: If someone causes a minor rear-end collision and the victim suffers damage weeks later because they had a completely different accident on the way to the doctor, the first accident-causer will not be held liable for that – the second accident falls outside their area of responsibility.
Finally, no exclusion of liability may apply. For example, liability may be contractually limited in certain cases (as long as legally permissible). Or the injured party has effectively waived claims. Such special circumstances are complex and should be examined with legal assistance.
Types of Damages (Material & Non-material)
The law broadly distinguishes between property damages and non-material damages. Simply put: Property damages are financial disadvantages that can be objectively measured, while non-material damages represent ideal impairments without market value.
Material Damages (Property Damage)
Material damages affect the assets of the injured party – that is, monetary value. These include:
- Property Damage: Damage or destruction of property. Examples: a broken car, damaged clothing, defective electronics. The liable party must cover the repair costs; in the case of total loss, they must pay the market or replacement value. Additionally, commercial depreciation – the loss of value of a repaired item, such as an accident vehicle – must be compensated if a market value loss occurs.
- Medical Expenses: In cases of bodily injury, the liable party must bear all costs of medical treatment – from emergency transport to hospital and therapy, including medications and rehabilitation. Future medical treatments, as far as they can be anticipated, are also included.
- Loss of Earnings: Income losses due to inability to work as a result of the incident. For instance, if someone cannot work for several months due to injuries, they are entitled to compensation for lost wages. In cases of permanent disability, future loss of earnings must also be compensated, usually in the form of a pension or lump-sum payment (see personal injuries).
- Household Management Damage: If the injured party is temporarily unable to manage their household (e.g., cooking, cleaning) and must hire someone for these tasks, those costs are compensable. Even if family members help voluntarily, a fictitious value is often assigned that can be claimed.
- Other Consequential Costs: All necessary expenses resulting from the damage event. This includes, for example, costs for expert opinions (such as an expert after an accident), legal fees to enforce claims, travel expenses (e.g., trips to the doctor or workshop), and other expenses that would not have occurred without the damage. It is important to be able to prove these expenses (keep receipts!).
Non-material Damages (Compensation for Pain and Suffering)
Non-material damages are those that do not have a direct monetary value – particularly pain, suffering, and loss of enjoyment of life. In Austria, non-material damages are only compensable if explicitly provided by law. The most important case is compensation for pain and suffering: Those injured due to someone else’s fault are entitled to financial compensation for their physical and emotional pain. The amount of compensation for pain and suffering is determined by the type and duration of the impairment. In practice, courts refer to guideline amounts per day of pain – approximately €120 for mild pain, €200 for moderate pain, and €350 for severe pain. These rates are summed up based on the number of days, with possible surcharges for permanent damages. The compensation for pain and suffering is intended to “compensate” for the pain endured and to make life a little easier for the victim (often used to finance a recovery vacation or disability-friendly purchases).
Additionally, psychological effects can fall under compensation for pain and suffering – such as trauma, depression, or anxiety following an accident. However, a strict standard must be applied; usually, a medical diagnosis (such as post-traumatic stress disorder) is required for emotional suffering to be compensated. In cases of merely temporary fright or normal grief, there is no compensation for pain and suffering.
Besides compensation for pain and suffering, the law recognizes a few other non-material claims for damages – such as in cases of violation of personal rights (e.g., damage to credit, unjustified detention) or special cases like loss of vacation enjoyment under consumer protection law. However, these play a minor role in general tort law.
Typical Damage Cases: From Traffic Accidents to Medical Malpractice
Claims for damages can arise in various areas of life. While the fundamental principles are the same, there are specific details depending on the type of damage. Here are some typical scenarios:
Traffic Accident
After a traffic accident, the injured party has extensive claims for compensation. These include repair costs (or the market value in case of total loss), rental car or loss of use, towing costs, medical treatment costs, loss of earnings, and pain and suffering, to name just a few. Important: In Austria, every motor vehicle must have liability insurance. This means you can directly claim your damages from the insurance of the driver at fault, which is usually more financially capable than an individual. Additionally, the EKHG applies in road traffic, which provides certain evidentiary advantages to the accident victim and, in some cases, liability even without the driver’s fault.
In practice, traffic accidents are often settled directly with the opposing insurance company. When the question of fault is clear, the insurance often tries to quickly make a settlement offer (preferably favorable for them). Caution is advised here: Without a precise understanding of all entitled claims (e.g., late consequences, household management damage, future therapy costs), there is a risk of settling for too little. Seek advice if in doubt before signing a settlement agreement.
Special considerations in traffic law: If an accident also leads to criminal proceedings (e.g., due to negligent bodily harm), the victim can join the criminal proceedings as a private participant. In the criminal judgment, a portion of the damages can already be awarded to the victim, saving time and costs. Furthermore, a legally convicted perpetrator is bound by these findings in civil proceedings – they can no longer deny their fault.
Sports Accident (Skiing & Leisure)
Sports accidents – such as on the ski slopes – are assessed according to the general rules of compensation. Anyone who injures another through rule violations or negligence is liable for the consequences. Recognized behavioral rules (FIS rules) apply on ski slopes; liability may arise from violations such as reckless speeding or overtaking at too close a distance. The question of fault is often disputed in collisions – experts are brought in to conduct accident reconstructions. It should be noted: Even athletes have a duty of care towards themselves. For example, skiing at high speed without a helmet, despite a general recommendation to wear one, risks shared fault for their own head injuries – this can reduce the compensation (similarly, the OGH has ruled that ambitious cyclists must wear a helmet, or they will bear shared fault).
In hunting accidents or other leisure accidents (e.g., climbing, water sports, etc.), the specific circumstances matter. Hunters are liable for misfires or injuries to third parties caused by hunting assistants according to general tort rules, and there is often a specific hunting liability insurance. In organized leisure activities (e.g., guided tours, club events), contractual liabilities or special liability provisions may also apply. Ultimately, victims of complex sports accidents should definitely seek advice, as often multiple parties (organizers, other athletes, equipment manufacturers) and thus several potential liable parties are involved.
Accident in Hotel, at Event, etc.
Organizers and operators of public places (concert organizers, shop owners, hotel operators) have traffic safety obligations. If these are violated – for example, failing to mitigate or warn about a noticeable hazard – they are liable for damages arising from it. Example: In a hotel, the stairs are freshly mopped, but no warning sign is posted; a guest falls – the hotel is liable for injuries resulting from the breach of duty of care. However, the guest must also exercise a certain degree of personal responsibility (see shared fault). Generally, liability insurance for businesses is common, covering such damage cases.
At larger events (concerts, sports events), liability is often contractually limited in the terms and conditions (up to legal limits). However, the injured party can still claim compensation if negligence can be proven against the organizer or their staff (e.g., inadequate safety measures, neglect of supervisory duties). The event itself – for example, a scuffle in the audience – does not, by itself, establish liability for the organizer as long as they have not violated their duty to maintain safety.
Medical Malpractice (Medical Liability)
Doctors or hospitals can also be held liable for errors. Medical malpractice (such as misdiagnoses, surgical errors, inadequate information) falls under the law of damages – often within the framework of a contract (treatment contract between patient and doctor/hospital). In cases of malpractice, the patient can claim compensation for additional treatment costs, loss of earnings, pain and suffering, and all other consequences. However, medical liability cases are complex: The patient must prove the malpractice and its consequences, which is hardly possible without a medical expert opinion. In certain cases, the judiciary facilitates the burden of proof for the patient (e.g., in cases of gross malpractice, it is presumed that they were causative of the damage). Nevertheless, many medical liability claims end up in court proceedings with extensive expert opinions.
Patients in Austria can seek support from the arbitration boards of the medical chamber or from the patient advocate of the federal states. Often, health insurance companies or the liability insurance of doctors attempt to reach an out-of-court settlement. If you are affected, it is advisable to seek specialized legal advice, as the matter is complicated and doctors are often represented by liability-insured law firms.
Particularities in Personal Injuries
Compensation for injuries to individuals (bodily or health-related damages) has some specific characteristics:
- Care and Assistance Costs: Severely injured individuals often require long-term care or assistance in daily life. The costs for caregivers, nursing homes, disability-friendly modifications to living spaces, etc., must be compensated by the liable party. Future costs (such as recurring expenses for wheelchairs or therapy equipment) must also be taken into account. Often, a prognosis regarding life expectancy and future needs is necessary – experts are consulted to determine these factors.
- Future Damages: In cases of permanent impairments, damages can arise over long periods (e.g., ongoing physiotherapy costs, medications, aids). Such future damages are generally compensable, but their likelihood and expected extent must be proven. Courts either award future claims in the form of a lump sum for all future damages or reserve the right for the injured party to sue again for actual incurred costs.
- Pension Claims: Instead of a one-time settlement, the injured party may, in certain cases, demand a pension. This is particularly applicable in cases of permanent loss of earnings (e.g., the injured person can never work again), where ongoing payments can be adjusted to living costs. The advantage of a pension is that the funds do not “run out”; the disadvantage is that there is no larger sum available at once in case of capital needs. Often, a pragmatic capital payment is chosen, as it definitively settles all claims.
- Capital Settlement: Liable parties usually prefer to settle all future claims with a one-time payment (capital settlement). Some injured parties also desire this to have control over a larger sum. Calculating an appropriate capital settlement requires discounting future damages to their present value. This involves considering life expectancy, interest rates, and inflation – a complex calculation often performed by experts or based on tables. Important: By accepting a capital settlement, all future claims are settled, even if actual costs exceed the forecast. Therefore, this decision must be carefully weighed.
It is also important to note that behind the compensation claims for personal injuries, social security providers are often involved. For example, the health insurance has advanced treatment costs, or the pension insurance institution pays disability pensions – these providers have recourse rights against the liable party. This does not significantly change the situation for the victim, except that in the process, the insurance providers usually assert claims as well. Nevertheless, it is advisable to document all personal expenses and losses accurately to avoid overlooking anything.
Contributory Negligence of the Injured Party
If the injured party has contributed to the occurrence or worsening of the damage, this is referred to as contributory negligence. A classic example is a pedestrian who crosses the street on a red light and is then hit by a car – in this case, the victim also exhibits a fault.
Austrian law stipulates that if the injured party bears contributory negligence, their claim for compensation is reduced in accordance with the relative fault of both parties. Specifically, a division of fault (liability ratio) is made – for example, 50:50, 70:30, etc. The injured party bears their share of the damage themselves. If the degree of contributory negligence cannot be precisely determined, the damage is split equally.
Contributory negligence does not have to be “guilt” in the technical sense – any careless behavior of the injured party that contributes to the occurrence of damage is sufficient. A violation of one’s own interests (such as not wearing a seatbelt, not wearing a helmet, or not going to the doctor despite severe pain) can also be considered contributory negligence. The important factor is the connection to the damage that occurred: only if the behavior of the injured party was a contributing cause of the damage or increased its extent does it reduce the claim.
A special role is played by the duty to mitigate damages. Every injured party is obligated to keep the damage as low as possible. If they ignore this duty, it can also be considered contributory negligence. For example: someone refuses the treatment recommended by a doctor after an accident, and their injury worsens as a result – the injurer does not have to fully cover the additional consequences because the victim contributed to the worsening. In other words: damages that could have been prevented through reasonable measures will not be compensated.
In cases involving multiple parties (when several injurers are involved), the question of how to divide liability among the injurers arises. If several perpetrators have acted together intentionally, they are jointly liable (solidarily) for the total damage. In the case of merely negligent independent causes, each is liable for the part they caused; if the shares cannot be determined, they are also jointly liable, and the internal division will then take place. As an injured party, you can choose from whom and how much to claim – the party being held liable can then seek reimbursement from the others.
Compensation and Insurance
Liability insurance plays a significant role in compensation cases. It protects the wrongdoer from financial ruin and ensures that a solvent debtor pays on the victim’s side. Many private individuals have personal or sports liability coverage included in their household insurance, while businesses have commercial or professional liability insurance.
In certain areas, liability insurance is legally required: the most prominent example is motor vehicle liability insurance. If a driver causes an accident, their insurance covers the damage to the other party up to high coverage limits. In Austria, the minimum coverage for personal injuries in traffic accidents is over 7 million euros—sufficient for even very serious accidents. As a victim, you can contact the insurer directly and file claims. The insurer will voluntarily pay in clear cases or negotiate with you regarding the amount. Please note: the insurance company is the contractual partner of the wrongdoer, not of you—therefore, it will try to pay as little as possible. Do not sign any hasty statements to the insurance company without thoroughly reviewing the case.
Coverage Objection and Direct Claim: What if the wrongdoer has no insurance or the insurance denies coverage? In Austria, in some cases of motor vehicle accidents, the Traffic Victim Compensation Fund steps in (for example, in cases of hit-and-run or lack of insurance). If an insurance company denies payment on the grounds that the damage is not covered (e.g., gross negligence of the insured, breaches of obligations, etc.), this does not affect the victim’s claim against the wrongdoer. However, you may then have to sue the wrongdoer personally. In the motor vehicle sector, the victim has a direct claim against the insurance company—the insurer cannot raise coverage objections against the victim but must pay first and may seek recourse from the insured later. This provides better protection for the victim.
Experience shows that insurance companies often calculate compensation for personal injuries (e.g., pain and suffering) rather low. Typically, they assess pain and suffering at the lower end of the scale. Follow-up damages are also sometimes initially “overlooked.” Do not be discouraged by initial low offers—they usually represent just a starting point for negotiation. With solid justification (medical certificates, cost estimates, etc.), it is often possible to achieve more. In case of doubt, legal support can help persuade the insurance company to recognize all claims.
Enforcement of Compensation Claims
The steps to obtain compensation are usually as follows:
- Evidence Preservation & Documentation: Immediately after an incident, it is important to secure evidence. Accident photos, witness statements, police accident reports, and in cases of bodily injury, medical diagnoses – all of this is crucial to later prove the sequence of events and the extent of the damage. Also, note the details of the liable party and any witnesses. Collect all invoices and receipts related to the damage.
- Out-of-Court Assertion: Typically, the liable party or their insurance is contacted first and asked to make a payment. Often, this is already handled by the victim’s lawyer. The compensation claim is presented in the form of a written demand letter (including a description of the accident and a list of all damages) with a reasonable deadline. Many insurance companies respond with a settlement offer or request further documentation. In some cases, a significant portion of the damage is already settled out of court.
- Lawsuit in Court: If the liable party or their insurance does not pay voluntarily, the legal route remains. In court, the victim must prove their claim – that is, the culpable, unlawful behavior of the defendant, the occurrence and extent of the damage, as well as the causality. Both sides present evidence (documents, expert opinions, witnesses). The process can take years and go through several instances, depending on the complexity and disputed amount. Court-appointed experts often play a key role (e.g., medical reports on injuries, technical reports on the accident).
- Judgment and Enforcement: Ideally, the process concludes with a legally binding judgment that awards the victim a specific amount. From the judgment, an enforcement title can be derived if the debtor does not pay. Then, enforcement actions can be taken – such as wage garnishment, bank account seizure, or auctioning off the debtor’s assets. In many cases, the insurance pays immediately after the judgment in cases of insured damages.
Costs and Risks: A civil lawsuit involves costs (court fees, attorney fees, expert fees). In Austria, the loser pays principle applies: the losing party bears the costs of the legal dispute proportionally. If the victim wins fully, the liable party or their insurance must cover all necessary costs; in the case of partial success, there is a division of costs. This cost risk should be assessed – legal expenses insurance can help mitigate it.
Conclusion: When to Consult a Lawyer?
In the event of damage, one often faces many questions: What claims do I have? How do I prove everything? Have I overlooked something? This is where the value of competent legal support becomes evident. A law firm specializing in compensation law knows the tricks of insurance companies and the current legal situation inside out. They help you quantify all your entitled claims – from property damage to loss of earnings to pain and suffering – completely and assertively.
A lawyer takes over communication with the opposing party or their insurance, allowing you to focus on your recovery or damage repair. Especially in cases of personal injury, it is advisable to seek legal advice early on. This helps you avoid mistakes in evidence preservation and missing deadlines. Additionally, having a lawyer signals to the insurance company that you mean business – unjustified rejections or delays can often be avoided this way.
Initial Consultation and Costs: Many law firms offer an initial consultation to assess your case. During this meeting, the chances of success and costs can be discussed. You will learn which steps are sensible and what timeframe to expect. The costs of a lawyer are based on the Lawyer’s Fee Act or individual agreements (often hourly rates) – in the event of success, the opposing party will cover these costs based on the Lawyer’s Fee Act.
Remember: Claims for damages generally expire after 3 years from the time of knowledge – so do not wait too long to consult a lawyer in the case of serious damages. With professional help, your chances of receiving what you are entitled to quickly and in full increase.
Frequently Asked Questions about Compensation for Damages
What are the requirements for a claim for damages?
Four criteria must be met: damage, unlawfulness, fault, and causality. This means that there must be actual damage that was caused by unlawful and culpable behavior. If any of these elements is missing, there is no claim.
For example: Without damage (i.e., if nothing happened), there is nothing to compensate. Or if there is damage, but the perpetrator is not at fault at all (no culpability), then they are not liable.
When does a claim for damages expire in Austria?
The general limitation period is three years from the time when the injured party becomes aware of the damage and the perpetrator. Regardless of knowledge, claims for damages expire at the latest 30 years after the damaging event.
Practically, this means that after three years, it is usually too late to enforce claims. In the case of hidden damages (where one only learns about them later), the limitation period may start later. However, the absolute 30-year period ensures legal certainty – no one can be held accountable forever.
Who pays for damages in the event of an accident?
In principle, the perpetrator is liable with their assets. However, in many cases, their liability insurance steps in and covers the payment to the victim.
In traffic accidents, for example, the car liability insurance of the perpetrator settles the damage. If there is no insurance (or if it denies coverage), the perpetrator must pay personally. If they are insolvent, this can mean that the victim does not receive their money despite winning the case – which is why having insurance is so important.
Will I receive damages if I am partially at fault?
Yes, but less. If you share partial fault in the damage case, your claim will be reduced proportionally according to your share of fault.
For example, if the other party is 70% at fault and you are 30% at fault, you will receive 70% of your total damages compensated. You will have to bear your own 30% share. If the partial fault cannot be precisely determined, the damage is usually split 50-50.
Is pain and suffering the same as damages?
Pain and suffering is a part of damages. It refers to non-material compensation for pain and suffering endured.
Damages encompass all items of loss – e.g., property damage, lost income, and also pain and suffering. The latter is only available in cases of bodily injury and covers non-material consequences (pain, emotional distress). It is therefore a subcategory of the claim for damages.
Do I have to pay taxes on damages?
In most cases, no. Actual damages – that is, payments that compensate for a loss – are tax-free.
Neither income tax nor value-added tax typically applies to actual damages. This is because you are not generating income but merely receiving compensation for a loss suffered. An exception may occur if the payment is made in a business context and actually represents a fee (non-actual damages) – then different tax rules may apply. However, typical compensation payments in the private sector (e.g., pain and suffering, repair costs) are not subject to taxation.
How long does it take to receive my damages?
It depends on the case – it can take weeks, months, or even years.
Simple damage cases with clear liability are often settled by the insurance within a few weeks. More complex or disputed cases that go to court can take years (including expert opinions and possible appeals). An out-of-court settlement is quicker, while a court procedure takes longer. With legal assistance, it is sometimes possible to exert pressure out of court to achieve a prompt payment.
How is the amount of pain and suffering calculated?
Courts refer to so-called daily rates – depending on the intensity and duration of the pain. For example, approximately €100–150 is set for light pain per day, about €200 for moderate pain, and around €300–400 for severe pain.
These rates are multiplied by the number of days of pain (e.g., days in the hospital, rehabilitation, etc.). Additionally, there are often flat rates for particularly severe permanent damages or scars. However, the exact assessment is at the discretion of the court and takes into account all circumstances of the individual case.
Who bears the legal costs in a damages lawsuit?
If successful, the losing party (or their insurance) must cover the legal costs. However, if you lose, you will also bear the costs of the opposing party.
Austrian civil procedure law stipulates that costs are imposed on the loser. Therefore, if you win, you will be reimbursed for your lawyer’s statutory fees. In cases of partial wins/losses, the costs are shared proportionally. It is therefore worthwhile to assess the chances of success beforehand – for example, in an initial legal consultation.
Do I need a lawyer for my claim for damages?
It is not mandatory, but usually very advisable – especially in cases of higher damage amounts or disputes.
A lawyer knows all the claims and deadlines, helps with evidence preservation, and negotiates professionally with the insurance company. Often, insurers try to minimize or deny claims without a lawyer. With legal support, your chances of receiving full compensation significantly increase. Additionally, a lawyer takes a lot of organizational work off your hands and knows how to successfully enforce the claim in court if necessary.
Sources
- § 1293 ABGB – Legal definition of damage: “Damage means any disadvantage that has been inflicted on someone’s property, rights, or person.” (JGS No. 946/1811, General Civil Code, in the current version)
- § 1295 Abs. 1 ABGB – General principle of liability: “Everyone is entitled to demand compensation for the damage caused to them by the injurer’s fault; the damage may have been caused by a breach of a contractual obligation or without reference to a contract.” (ABGB)
- § 1304 ABGB – Contributory negligence of the injured party: “If, in the case of damage, there is also fault on the part of the injured party, they shall bear the damage proportionately with the injurer; and if the ratio cannot be determined, in equal parts.”
- § 1325 ABGB – Compensation for bodily injury: The injurer must cover medical costs, lost income (including future earnings) and “upon request, also pay an appropriate compensation for pain and suffering based on the circumstances.”
- WKO – Compensation for damages (General Overview), Information from the Austrian Chamber of Commerce on compensation law, as of: 06.10.2025.
- Federal Ministry of Finance (BMF) – Mag. Johannes Pasquali (BMF spokesperson): “Compensation payments for private economic goods are not subject to taxation” (Source: Versicherungen.at, specialist article “When an insurance benefit is tax-free”, 2013).
- jusline.at
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