Road traffic accident & damages – pursuing your claims in Vienna

After the accident: suddenly facing all the questions alone

A road traffic accident turns your daily life upside down in seconds. Alongside the pain, the shock and a damaged vehicle, questions quickly arise that will not resolve themselves. Who pays for the treatment? What am I entitled to in damages for pain and suffering? Who replaces the earnings I lose while I am on sick leave? And why is the other party’s insurer offering much less than the damage is really worth?

Many people do not realise that the other party’s liability insurer often gets in touch quickly with a settlement offer. In doing so, it is acting as your opponent – and in our experience, its offers tend to be low. This page gives you a calm, clear overview of the claims Austrian law provides after a road traffic accident, and of when it makes sense to involve a lawyer. At Teamanwälte in Vienna, we support injured parties through the entire claims settlement process – from the first letter to the insurer to, if necessary, filing a claim with the court. If you were not at fault, the initial review of your case is usually free of charge.

What does a damages claim after a road traffic accident involve?

After a road traffic accident, it essentially comes down to two questions: who is liable – and for how much? Austrian law has two bases of liability for this, and they can apply side by side.

Fault-based liability – if you cause damage through your own fault, you are liable

The traditional basis is fault-based liability under §§ 1293 et seq. ABGB: anyone who causes damage unlawfully and culpably must pay compensation for it (§ 1295 ABGB). Anyone who drives through a red light, speeds or fails to give way must answer for the consequences.

Strict liability under the EKHG – even without fault

Alongside this is strict liability under the EKHG. It does not depend on fault but on the operating risk that every motor vehicle carries. The keeper of the vehicle is liable even if they are not personally at fault (§ 5 EKHG). The keeper can escape liability only in a few narrowly defined cases. One is an unavoidable event (§ 9 EKHG). Another is unauthorised use of the vehicle without the keeper’s consent, provided the keeper did not culpably make that use possible (§ 6 EKHG). Strict liability is subject to statutory maximum amounts (§§ 15, 16 EKHG), which are regularly adjusted in line with inflation.

For injured parties, this dual basis is an advantage. Even where fault cannot be clearly proven, there is often still a claim under the EKHG. We assess which basis will hold up in your particular case.

When does it make sense to involve a lawyer?

Not every bump and scrape needs a lawyer. Where fault is clear and only property has been damaged, insurers often settle quickly. But once people have been injured, larger sums are at stake or fault is disputed, the balance of power shifts significantly against you. It makes particular sense to have a lawyer review your case if:

• you or your passengers have suffered physical or psychological injuries – even ‘minor’ whiplash can have long-term effects;
• fault is disputed or you are accused of contributory negligence;
• the other party’s insurer cuts your claim or stalls, or makes a suspiciously low lump-sum offer;
• you are self-employed and have suffered a loss of earnings;
• there is a risk of long-term effects whose extent cannot yet be foreseen;
• the accident happened abroad.

Damages for pain and suffering: how the amount is determined

Damages for pain and suffering under § 1325 ABGB compensate for what cannot be captured in invoices: physical pain, emotional suffering and the loss of enjoyment of life. Contrary to what many people expect, Austria has no official table for damages for pain and suffering. The amount is assessed case by case, on the basis of a medical expert report. The report records the periods of pain – that is, how many days of slight, moderate or severe pain you went through.

As a rough guide, the following guideline daily rates are commonly used in practice (not a binding table; individual cases may differ):

• slight pain: around €110–160 per day (as a guide)
• moderate pain: around €220–280 per day (as a guide)
• severe pain: around €330–420 per day (as a guide)

Damages for pain and suffering are usually awarded as a lump sum – a single total that also takes likely future developments into account. As things currently stand, damages for pain and suffering are generally tax-free (this should be checked by a professional in each case).

Important to know: damages for pain and suffering are awarded not only for visible physical injuries but also for psychological consequences that amount to a medical condition – such as post-traumatic stress disorder (PTSD) after a serious accident. In claims settlement, such consequences are often overlooked or played down. Yet they are a separate loss in their own right, and you can claim compensation for them.

Which items of loss you can claim

Damages after a road traffic accident cover far more than repairing the car. With personal injury in particular, the individual items often add up to a considerable sum – and injured parties overlook some of them.

Personal injury (§ 1325 ABGB)

• Medical treatment costs: treatment, therapy, medication, medical aids and travel to medical appointments, to the extent that your health insurance fund does not cover them.
• Loss of earnings: the income you lose while you are unable to work. If you are self-employed, you are compensated for your loss of profit. Unlike damages for pain and suffering, compensation for loss of earnings is taxable.
• Nursing and care costs and household help, if your injuries mean you can no longer run your household.

Damage to property

• Repair costs or, if the car is an economic write-off, the replacement value.
• Incidental and consequential costs: towing, hire car costs or costs arising from loss of use, and registration and deregistration costs.
• Reduction in market value: even a professionally repaired vehicle loses value on the market because it counts as an accident-damaged car. You can claim compensation for this lasting loss of market value – it is particularly relevant for vehicles up to around three years old. Insurers often quietly leave this item out of their first offer.

Compensation for disfigurement (§ 1326 ABGB)

If the accident leaves a visible disfigurement – such as a conspicuous scar – and this hinders your career or personal prospects, you may also be entitled to compensation for disfigurement. The amount depends on your age, occupation and circumstances and is assessed case by case (any figures quoted are only a rough indication). Insurers almost never include this item in a settlement offer of their own accord.

Claims by relatives

Where an accident tragically results in death, close relatives may also have claims. Compensation for grief for purely emotional pain is generally available only if the person who caused the accident acted with gross negligence or intent. If the shock causes the relative to suffer an illness of their own – psychiatric injury caused by shock – different, less strict requirements apply. In addition, funeral expenses and any loss of maintenance – the maintenance the deceased would have provided in future – must be compensated.

Fault, contributory negligence and the burden of proof

Fault is rarely as clear-cut as it seems at first glance. If the injured party was also contributorily negligent, the claim is reduced proportionately under § 1304 ABGB. If the respective shares of fault cannot be established, a 50:50 split applies in case of doubt.

• One vehicle is speeding, the other fails to give way – depending on how serious each breach is, the split might be around 25:75 or 50:50.
• Seat belt not fastened: if the injured person’s contributory negligence added to the severity of their injuries, their damages for pain and suffering may be reduced.
• Anyone who fails to react to a danger they could have recognised will have contributory negligence counted against them.

Whether there is contributory negligence, and to what extent, often becomes clear only after an accident reconstruction and an expert report – and this is exactly where insurers tend to step in to push down the payout. On the burden of proof: the injured party must prove the damage, causation and unlawfulness. If, on the other hand, the insurer claims that the injured party breached their duty to mitigate the loss (for example by delaying treatment), the insurer must prove that breach. That is why careful documentation – accident report, photos, medical reports – is often decisive.

Limitation: why you should not wait too long

Long-term effects are particularly tricky: injuries whose full extent only becomes apparent years later. Such future claims can be lost through limitation. To prevent this, an action for a declaratory judgment under § 228 of the Austrian Code of Civil Procedure (ZPO) can be useful. It establishes liability in principle, even if the amount is not yet known. With serious injuries in particular, this is an important safeguard – we check at an early stage whether it is advisable in your case.

Accidents abroad: claims can also be settled from Vienna

Road traffic accidents abroad are particularly confusing for injured parties – a foreign language, foreign law, a foreign insurer. This is where the claims representative system helps: the other party’s foreign insurer must appoint a representative in Austria, through whom you can pursue your claims in Austria. This means you do not necessarily have to go to court abroad. Which rules apply in detail, and which law governs the case, depends on where the accident happened. A specialist should clarify this early on, because cross-border cases quickly get bogged down without experienced handling.

If the person who caused the accident is unknown – for example after a hit-and-run – or uninsured, the compensation scheme for road accident victims steps in through the competent insurance association. It also covers damages for pain and suffering. We check the rules currently in force for your case.

The process: from the initial review to pursuing your claims

1. First steps at the scene of the accident – see the checklist below.
2. Initial review: you tell us what happened, we go through the documents, clarify the position on fault and insurance, and give you a realistic estimate of your claims.
3. Assessing the loss and submitting the claim: we record every item – including easily overlooked ones such as reduction in market value, loss of earnings or household help – and submit them to the other party’s insurer.
4. Negotiation: we scrutinise every offer and negotiate an appropriate settlement.
5. Going to court, if necessary: if no fair agreement can be reached, we represent you in court. In Austria, claims with a value in dispute of up to €15,000 are heard by the district court. Above that, the regional court has jurisdiction – in Vienna, the Vienna Regional Civil Court.

Checklist: first steps immediately after the accident

• Stop and secure the scene of the accident, give first aid to anyone injured and call the emergency services (§ 4 of the Road Traffic Regulations 1960, StVO).
• If anyone is injured, always notify the police immediately; if there is only damage to property, do so as well – unless you have exchanged names and addresses with each other in a way you can prove. Anyone who leaves the scene without authorisation commits a hit-and-run.
• Take photos of the vehicles, their final positions, the number plates, the damage and the scene of the accident.
• Note down the details of the other party and of any witnesses.
• If you are injured, see a doctor and keep the medical reports – even if your symptoms seem minor at first.
• Keep what you say at the scene brief, do not admit liability and do not sign anything hastily that the other party’s insurer puts in front of you.

Costs and duration – explained honestly

Many injured parties hesitate because they are worried about legal fees. In most cases, this worry is unfounded:

• If you were not at fault, the other party’s liability insurer generally pays the necessary legal fees as part of your loss. In many cases, the initial review of your case is therefore free of charge for you.
• If you have motor legal expenses cover, it usually includes road traffic accidents – we check cover with your insurer in advance.
• If you cannot afford the costs and your claim has reasonable prospects of success, you may be eligible for legal aid.

As for how long it takes: where the situation is clear, an out-of-court settlement can sometimes be reached within a few months, and claims for property damage alone are usually resolved fastest. If fault is disputed and expert reports and court proceedings are involved, it can take from one to several years. We tell you honestly from the outset what to expect. There are no guarantees of success in law, and you should be wary of anyone who promises them.

How we help you

We are Teamanwälte, a Vienna law firm led by Mag. Johannes Bügler, and we know local practice – from the courts with jurisdiction to the way the major insurers behave. We review your case in full: not only the obvious items but also those that insurers tend to pass over – reduction in market value, compensation for disfigurement, psychological consequences, loss of earnings for the self-employed. We face the other party’s insurer as an equal. We negotiate where negotiation is enough and file a claim where court action is necessary – calmly, thoroughly and without overwhelming you with legal jargon.

If you are unsure whether it is worth involving a lawyer in your case, we can clarify that in an initial consultation – without any pressure. Tell us about your situation, and we will tell you openly whether it is worth taking action, and how.

Teamanwälte – Mag. Johannes Bügler · Baumgartenstraße 82, 1140 Vienna · Phone +43 1 419 13 18 · office@teamanwaelte.at

Please note: this article is for general information only and does not replace individual legal advice. The amounts and daily rates mentioned are for guidance only; the actual assessment depends on the individual case. We give no guarantee of success.