Pre-existing damage after a ski accident: which symptoms did the accident worsen?

Increased vulnerability without corresponding pain or limitations before the accident may be described by an earlier medical finding, and symptoms may also have existed already. The label pre-existing damage is therefore insufficient for the legal assessment, and the relevant facts are the specific effects before and after the event.

A person causing injury must, in principle, take the injured person with their existing physical characteristics. In 1 Ob 126/21t, the Austrian Supreme Court (OGH) explains this for particular vulnerability and an unfavourable recovery as well. Where the accident and a predisposition jointly increase the injury, a division of compensation is not generally determined by an arbitrary medical percentage. Accident-related aggravation must still be proved.

If an existing predisposition would have caused the same damage at an identifiable time even without the ski accident, a limit may apply. In 2 Ob 192/22g, the OGH states that the person causing injury must plead and prove this defence. The relevant time must be identifiable with some certainty, and a mere possibility of later symptoms is insufficient.

Should this be proved, damage resulting from an earlier onset or aggravation remains relevant, specifically the disadvantage arising from the condition occurring sooner or following a more severe course. In 2 Ob 105/25t, the OGH confirms the requirements for the same hypothetical outcome and its timing. A later independent fall and household assistance were the subject of that case. No medical finding regarding shoulder or back injuries while skiing is made.

Earlier medical letters, imaging, operation reports and treatment records for the affected body area should be preserved. It is useful to record which movements, work tasks and everyday activities were possible before the accident. The history should include documented pain, medication and sick leave, as well as a symptom-free period. The earlier records should be supplied in full so that the comparison can be understood.

Rescue records, the initial medical assessment, and subsequent examinations should be added. The timing of the appearance of new pain or functional loss, as well as the development of treatment and capacity, should be documented. Later falls or illnesses must also be placed on the timeline. Imaging obtained after the accident alone proves neither a new injury nor the absence of a causal connection; a medical assessment is required for that.

Which additional functional impairment appeared after the documented accident is one question for a previously damaged shoulder. Whether and how the accident aggravated existing symptoms or caused new limitations is the issue for a back condition. An indication is provided by timing. The accident mechanism, earlier findings, the initial assessment and the subsequent course must also be addressed by the explanation.

Temporary aggravation, permanent additional impairment, and the expected course without the accident should be assessed separately by the medical expert. Any uncertainty regarding that course must be identified. The injured person generally must prove the accident damage claimed and its causal connection with the accident. This requirement differs from the defence of the same hypothetical damage, which the person causing injury must prove. Legal attribution is decided by the court.

Treatment costs, lost and future earnings, and appropriate compensation for pain and suffering are provided for by § 1325 ABGB. Where pre-existing damage exists, the additional burden attributable to the accident must be assessed for each item. Treatment that was already necessary beforehand does not automatically constitute accident damage. However, additional therapy required because of the aggravation may be relevant.

Invoices and losses should be organised by period and medical reason. For incapacity for work, establish which activities were restricted beforehand and which further limitation the accident added. For household assistance, distinguish between the previous need for help and the additional effort. A diagnosis alone does not show whether a particular expense would have arisen in the same way regardless.

Should the insurer cite degeneration or an old operation, it should be clear which part of the claim is disputed and why. An alleged previous condition, the same hypothetical damage, and the injured person's conduct constitute distinct objections. Culpable conduct by the injured person is what contributory fault under § 1304 ABGB concerns. Such fault is not established by having an illness alone.

Unresolved treatment issues, possible permanent consequences, and the scope of the release should be assessed before a final settlement is accepted. The medical records and the reasons for any deduction should be assessed together. Separate contractual review is required for terms concerning the contribution of pre-existing conditions in your own private accident policy. They do not create an automatic deduction for the damages claim against the other party.