§ 1293 of the Austrian Civil Code (ABGB) defines damage as any detriment inflicted upon a person’s property, rights, or person. This definition therefore also encompasses personal injuries and, consequently, non-material (immaterial) damages. However, according to established case law, such immaterial damages are generally only compensable where a statutory basis exists. For example, the ABGB expressly provides that a person may claim reasonable compensation for pain and suffering (“pain and suffering damages”) if they have been physically injured by another (§ 1325 ABGB). Such compensation also covers immaterial damages.
The restriction of compensation for immaterial damages to expressly regulated statutory cases has been widely criticized by legal scholars. Over time, case law began to award damages for so-called “shock damages.” Such shock damage exists where a close relative is killed and the surviving relative suffers a medically significant impairment (a psychological illness), for example because they witnessed the accident that led to the death or developed a disorder after being notified of the death. In subsequent years, the jurisprudence evolved further, ultimately recognizing not only shock damages but also so-called “bereavement damages.” Unlike shock damage, bereavement damage does not (yet) involve a medically significant impairment. In 2001, the Austrian Supreme Court (OGH) for the first time endorsed the possibility of compensation for bereavement suffering (even though it ultimately dismissed the claim in that case due to the absence of further requirements). Where the tortfeasor bears gross fault for the death, close relatives may be awarded compensation for the grief suffered. It remains to be seen whether bereavement damages will be recognized not only in cases of death of a close relative, but also, for example, in cases of serious injury to a close relative.
In a recent decision, the OGH addressed the question of whether bereavement damages should also be awarded to pet owners following the death of their animal. The case was based on the following facts: The first plaintiff and the first defendant were both drivers involved in a car accident, which was at least negligently caused by the first defendant. The second defendant was the vehicle owner, and the third defendant the insurer. The first plaintiff had his dog secured with a harness in the vehicle. After the accident, he unbuckled the dog, which then jumped out of the car and ran away. It was later found dead at the roadside.
The plaintiffs claimed bereavement damages for the loss of their dog. They argued that they had cared for the dog like a child, providing special dog salons, dog hotels, vegan dog food, and wellness treatments, and that the defendant had caused the accident through gross negligence. Therefore, as in the case of the loss of a close relative, they should be entitled to compensation for grief. The defendants sought dismissal of the claim, disputing both the allegation of gross negligence and the existence of any legal basis for bereavement damages.
The court of first instance dismissed the claim, and the appellate court upheld this decision.
The OGH referred to its previous case law on shock and bereavement damages and noted that there had been no prior supreme court rulings on bereavement damages for the loss of a pet. In two prior shock damage cases, the OGH had denied liability.
In its first detailed consideration of bereavement damages in connection with the loss of a pet, the OGH concluded that mere grief over a pet does not, in itself, give rise to a claim for compensation.
Under § 1331 ABGB, damage to property gives rise to a claim for the so-called “value of special affection” only if the damage was caused out of malice or spite, or through conduct prohibited under criminal law. While animals are not considered “things” under § 285a ABGB, the provisions applicable to things continue to apply unless specific rules for animals exist. Such a specific rule does exist in § 1332a ABGB; however, it only covers the actual costs of treatment. Accordingly, claims for damages arising from the injury or killing of an animal remain governed by the provisions on damage to property.
According to the OGH, the case law developed by analogy regarding compensation for bereavement damages cannot be extended to the loss of an animal. On the one hand, there is no legal gap, as the legislature, when enacting § 1332a ABGB, assumed that immaterial damages for the loss of an animal would only be compensable in cases of intent. On the other hand, the “typicality” of grief required by case law is lacking in the case of the loss of an animal, unlike the loss of a close relative. From an objective perspective, grief comparable to that experienced upon the loss of a human being is considered too remote in the case of an animal. The Court therefore emphasized the need for a clear boundary. Furthermore, it would create a contradiction in legal valuation to deny compensation for shock damage (i.e., an actual health impairment), as the OGH has done in prior cases, while at the same time awarding bereavement damages.
In conclusion, the OGH upheld the legal view of the lower courts. Compensation for bereavement in connection with the loss of an animal is therefore only conceivable within the framework of § 1331 ABGB, for example in cases of animal cruelty (§ 222 Austrian Criminal Code), but not in cases of mere killing—even if caused by gross negligence. A change in the law would be required to alter this position.
(OGH decision 2 Ob 142/20a of 27 November 2020)
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