Pain and suffering compensation after a ski accident, Austria and Germany compared

Austrian pain and suffering compensation is grounded in § 1325 ABGB. The tortfeasor must compensate the injured person, in addition to treatment costs and loss of earnings, appropriately for all pain suffered. In settled OGH case law the assessment is made as a global assessment: no day-rate formula is applied mechanically; instead a single overall sum is determined taking into account the overall picture of the injury.

The global assessment is guided by the type, intensity and duration of pain periods (mild, moderate, severe pain), any lasting consequences such as permanent functional impairment or instability, and any disfigurement. Orientation tables for pain periods exist in practice and serve as an internal aid; they are not a rigid tariff system and have no binding force. What counts is the overall picture.

The overall picture also includes the course of treatment: multiple operations, hospital stays and rehabilitation, physiotherapy, a protracted recovery, all of this feeds into the global assessment. Anyone who documents their injury course in full, namely medical reports, surgical reports and rehabilitation records, lays the foundation for a well-grounded estimate.

German pain and suffering compensation under § 253 Abs 2 BGB is assessed according to equity. German practice has developed pain-and-suffering tables over decades, recording comparable cases with similar injuries and the awards granted in them. These tables have no statutory force but are used by courts and lawyers as a frame of reference.

More recent German legal practice and debate increasingly feature a so-called day-precise method, in which the number of days of pain periods becomes more prominent. The precise methodology is not finally uniform in Germany. What can be stated is that the German pain and suffering level tends to be somewhat higher than the traditional Austrian level. A tendency, not a fixed differential, to be assessed individually for each case.

This tendency interests the German visitor injured in Austria less than they might initially assume, because what matters is which law applies.

The conflict-of-laws basis is Article 4 of the Rome II Regulation (Regulation (EC) No 864/2007). Under that provision, the law applicable to a non-contractual obligation arising from a tort, including ski accidents, is the law of the country in which the damage occurs (lex loci damni). If the accident happens in Austria, Austrian law applies. This is independent of where the injured person is domiciled, their nationality, or the country from which they travelled.

For court jurisdiction, the Brussels Ia Regulation applies. For a tort claim, the injured person can choose to sue either at the place of acting or the place of damage; both lie in Austria when the accident occurred there. In practice, ski accident proceedings are conducted before Austrian courts, and Austrian substantive law governs the claim.

For the German visitor this means concretely: after an accident at an Austrian ski resort they have a claim to pain and suffering compensation under § 1325 ABGB, not under § 253 Abs 2 BGB. The Austrian global assessment applies, not the German tables. This is often a surprise, and from the injured party's perspective it makes it all the more important to obtain an assessment under Austrian law without delay.

Within the framework of global assessment under Austrian law, four factors in particular shift the amount upwards or downwards. First, the severity of the injury: a multiple fracture, cruciate ligament rupture, head trauma or spinal cord injury are different starting points from a simple sprain. Second, the duration of the recovery: a protracted recovery involving multiple operations and rehabilitation phases leads to a different outcome from an injury that heals quickly.

Third, permanent impairments have a particularly strong impact. Lasting restrictions in movement, changes to gait, chronic pain conditions or a permanently reduced capacity all increase the figure significantly, because they persist beyond the actual pain period. Fourth, contributory negligence under § 1304 ABGB acts as a reduction factor: anyone who skied without a helmet, was under the influence of alcohol, or violated FIS rules must expect a quota reduction. How substantial the reduction is depends on the concrete circumstances and is a central point of dispute.

The interplay between these factors and the OGH's global assessment approach cannot be calculated schematically. A well-founded estimate requires complete knowledge of the course of treatment and, in many cases, a medical expert opinion on pain periods and lasting consequences.