What happened?
The plaintiff suffered an injury during an operation at the defendant municipal association’s hospital when a nerve was severed, resulting in diaphragmatic elevation. In a previous proceeding, it was established that the defendant was liable for all future consequences and damages stemming from this operation.
The subject of the current case was the plaintiff’s claim for compensation for loss of earnings. Between September 2016 and August 2020, the plaintiff was unemployed and, in addition to other undisputed income, received emergency assistance totaling EUR 18,532.
The defendant argued that the emergency assistance should also be considered as income for the plaintiff and thus deducted from the compensation for loss of earnings.
The court of first instance partially upheld the plaintiff’s claim. Contrary to established case law, the court held that distinguishing between unemployment benefits and emergency assistance was inappropriate. While injured parties in such cases must account for unemployment benefits, emergency assistance had not previously been deducted. Consequently, the court reduced the compensation.
However, the appellate court upheld the plaintiff’s appeal and amended the decision, fully granting the claim. The court reasoned that emergency assistance is not earned income but a social welfare benefit designed to prevent hardship. The purpose of emergency assistance is not to relieve the liable party. As a result, there was no reason to deviate from previous case law, and the court rejected the idea of deducting emergency assistance from compensation claims for loss of earnings.
The defendant filed an appeal with the Austrian Supreme Court (OGH), seeking the reinstatement of the first-instance ruling.
How did the Supreme Court decide?
The OGH upheld the appellate court’s assessment, citing established case law. The court elaborated that emergency assistance constitutes a benefit granted to the recipient for social reasons—similar to other good-faith, consumption-based maintenance benefits—and is not intended to reduce the liability of the wrongdoer.
The OGH further emphasized that emergency assistance presupposes a state of need, meaning recipients generally must use the funds for essential purposes. The court noted that if the wrongdoer fulfilled their obligation to compensate for loss of earnings promptly (instead of delaying through prolonged litigation), the emergency situation justifying the assistance would not arise in the first place. Therefore, the question of double compensation through emergency assistance and loss of earnings does not even arise.
For these reasons, the deduction of emergency assistance from compensation claims was excluded. The OGH dismissed the appeal.
(OGH Decision 8 Ob 104/21h, July 18, 2022)
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