Injured skier dies during proceedings: pain and suffering and the estate

The estate comprises the transferable rights and liabilities of the deceased under § 531 ABGB, including an accrued claim for pain and suffering under § 1325 ABGB. In 6 Ob 2068/96b of 30 September 1996, the Austrian Supreme Court clarified that inheritance does not depend on the injured person having already asserted the claim, and a previous action or acknowledgment is not a prerequisite.

Burn injuries, rather than a skiing accident, were the subject of the decision. The general principle of that decision also matters for the personal pain and suffering claim of an injured skier. The claim is not brought into existence by litigation itself. Liability for the accident, proven damage, and payments already made still require examination. A valid waiver or settlement is not reversed by the death.

An assessment still to be made must reflect the accident consequences arising up to death if the claimant dies before the close of the first-instance hearing. For a previously expected remaining lifespan, pain that cannot be suffered after death is not included. The nature, intensity and duration of physical and psychological suffering up to death remain decisive. This does not imply a mechanical reduction by individual days.

In 10 Ob 89/15h of 7 June 2016, a distinction is drawn by the Supreme Court between compensable suffering arising from knowledge of reduced life expectancy and compensation for the period following death. Psychological suffering that has already been experienced as a result of the accident may be taken into account. On its own terms, a final payment judgment or conclusive settlement must instead be examined. Assessment is not automatically reopened by a later death, nor is a repayment claim thereby created.

Treatment expenses, care costs, and lost earnings accrued before death, in addition to pain and suffering, may constitute part of the claim. For each item, clarification is required regarding its holder, its cause, and whether it has already been covered or transferred to a third party. Social insurance payments, care allowances, and social assistance must not be ignored across the board, nor must they be deducted indiscriminately. What matters is their legal basis and any transfer of the claim.

Under § 1325 ABGB, the temporal scope of the injured person's own claims terminates at death at the latest. In the medical liability case 7 Ob 170/25p of 15 April 2026, the Supreme Court reaffirmed this limitation. Consequently, the inherited injury claim affords heirs no compensation for hypothetical earnings or care needs occurring after death. Furthermore, a request for a declaration regarding personal late consequences that arise only in the future must be adjusted. Accrued unpaid claims, however, remain subject to separate pursuit.

Proceedings are interrupted by a party's death under § 155 ZPO only if that party was represented neither by a lawyer nor by another person holding procedural authority. Where such representation existed, proceedings therefore generally continue. Although legal successors may revoke the procedural power of attorney, death does not terminate it under § 35 ZPO. A death is therefore no reliable reason to disregard summonses or running deadlines.

In the absence of such representation, interruption generally lasts until the legal successors resume proceedings. § 155 ZPO also provides ways for the opponent to seek resumption, including through a court-appointed curator or a summons to the legal successors. The statements and evidence needed at the particular procedural stage must be identified from the case file. Relatives should promptly connect the existing legal representatives with the estate proceedings.

Under § 546 ABGB, the estate, as a legal person, maintains the legal position of the deceased upon death. Succession to that position by the heirs occurs only upon the court's transfer of the estate under § 547 ABGB, known as Einantwortung. The party designation in the damages action and the evidence of succession must correspond to that stage. A family relationship alone does not entitle a relative to sue personally for the entire claim.

Representation prior to that transfer is governed by § 810 ABGB and the particular court orders. Unless they agree otherwise, several authorised heirs generally act jointly. Separate examination is required for any continuing procedural power of attorney. As 7 Ob 170/25p emphasises, divisible estate claims generally belong to co-heirs in their respective shares after transfer. Before one heir seeks payment for everyone or concludes a settlement, authority and allocation of the claim must be clarified.

Included among the required documents are the claim, previous pleadings, expert reports, court decisions, proof of service, and complete payment and settlement correspondence. The death and succession are established by the death certificate, estate case number, and any estate transfer order. For assessing the amount of compensation, medical records, care documentation, and income evidence up to death remain important. A medical review is required if the assumption that death was unrelated to the accident is uncertain.

The decision regarding who continues proceedings, which amounts remain claimed, and whether the relief sought should be reduced or reformulated is supported by these records. Before settlement, the scope, the authority to represent the estate, and any necessary approval from the estate court must be examined. That decision also includes litigation costs and previous part payments. Mag. Christopher Angerer assists with coordinating the claim, the continuation of proceedings, and the estate.