LGZ Wien: Reasonable amount of damages for acts of trespassing

Feb 4, 2022 Benn-Ibler Rechtsanwälte

In the course of the plaintiff's stay in hospital, the Regional Court for Civil Matters Vienna (Zivilrechtssachen Wien, LGZ Wien) dealt with the appropriate amount of a claim for damages due to the preparation and possible execution of an act of trespassing.

Due to a lack of parking space in the area of the hospital in question, the plaintiff was tempted to park illegally in a signposted disabled parking space. The defendant's employee (a towing service), who was responsible for the parking regulations in the area and any towing from the hospital, noticed this and began to tow the vehicle away. However, the plaintiff was able to remove the car on her own. Admitting the trespassing, the plaintiff also made a declaration to cease and desist. However, the costs of EUR 400 were too high for the plaintiff, which is why she paid the amount in part subject to legal clarification.

In this case, the LGZ Wien held that the formulations used in Sections 339 and 346 of the General Civil Code (Allgemeines Bürgerliches Gesetzbuch, ABGB) - compensation for demonstrable damage - do not form an independent legal basis, but are to be understood with regard to the provisions of Sections 1295 ff ABGB on damages. Due to the contractual agreement of the towing service with the hospital, these are precautionary costs (personnel costs, provision of a tow truck) which are not compensable for lack of causality in the case dealt with here. 

The legal costs incurred were also discussed. With reference to the General Fee Criteria (Allgemeinen Honorar-Kriterien, AHK), which in turn refer to the Lawyers' Fees Act (Rechtsanwaltstarifgesetz, RATG), the LGZ Wien ruled that the assessment must in principle be based on an "appropriate fee" if there is no tariff approach in the law. Since there are tariff approaches for the actions of the defendant in this case, the compensation paid conditionally to the plaintiff is without legal basis and must be reclaimed according to Sec. 1431 ABGB.

35 R 126/21w (08.09.2021)