OGH: Compensation in the case of damages from incorrect counsel

Oct 20, 2021 Benn-Ibler Rechtsanwälte

In the case of incorrect counsel, the difference in assets is to be compensated, which would not have occurred if the advice had been given in accordance with the duty. The fact that a damaging event can also bring benefits does not hinder the existence of the claim.

In the case at hand, the plaintiff worked for an insurance company as a sales representative. In the course of the amicable termination of the employment relationship, the plaintiff asked the Chamber for Workers and Employees (Kammer für Arbeiter und Angestellte, AK), the defendant, for legal advice. The AK employee did not forward the insurance company's limited offer of compensation for the subsequent commission claims to the plaintiff in time. If the plaintiff had received this offer in time, she would have accepted it in all probability. Instead, the plaintiff received at irregular intervals fifty percent of the follow-up commission to which she would have been entitled if her employment had continued.

The plaintiff sought the difference in the offer minus the follow-up commissions received, because the plaintiff would have accepted the offer for a one-time payment. The court of first instance sided with the plaintiff, the Court of Appeal upheld the defendant's appeal.

The Supreme Court (Oberster Gerichtshof, OGH) established beyond dispute that the AK, as an expert, was responsible for giving incorrect counsel in violation of its duty to advise and safeguard interests. In principle, the hypothetical current asset value without the damaging event has to be determined first and the current actual asset value has to be deducted from this amount.

The fact that a damaging event can also bring benefits to the injured party is taken into account with the benefit sharing. This is a method of calculating the amount of the damage.

However, not every advantage of the injured party is to be booked in favour of the injuring party. The consideration of benefits can only be considered against factually and temporally congruent claims for damages.

The plaintiff limited her claim by the follow-up commissions already received until the end of the oral hearing, therefore already taking benefit sharing into account.

OGH 9 Ob 33/21z (24.06.2021)