OGH: Pain compensation without pain as a result of a traffic accident?

Jan 28, 2022 Benn-Ibler Rechtsanwälte

In the course of the present proceedings, the Supreme Court (Oberster Gerichtshof, OGH) dealt with the question of contributory negligence of a wheelchair user in the case of subsequent damage events and the awarding of compensation for pain and suffering without pain sensation.

The plaintiff became paraplegic as a result of a car accident with the defendant in 2005 and has since used an electrically assisted wheelchair. Due to his medical condition, the plaintiff was advised not to use a hip belt system. In 2016 and 2017, two further accidents occurred to the plaintiff. While the plaintiff sued the then defendant for damages for pain and suffering, the defendant countered that due to the lack of a belt system and the plaintiff's assistant’s clumsy handling, contributory negligence existed and the adequacy was thus lacking for establishing liability.

The OGH ruled as follows:

In principle, Section 106 para 2 of the Motor Vehicles Act (Kraftfahrgesetz, KFG) obliges the use of safety belts in motor vehicles. However, Sec. 2 para 1 no 19 of the Road Traffic Act (Straßenverkehrsordnung, StVO) explicitly excludes wheelchairs from the definition of a vehicle, which means that there is no legal obligation to use the seat belt system.

In this context, the OGH also denied that this could be a violation of an obligation due to a general awareness of the use of seat belts among wheelchair users. Thus, like the previous instances, the OGH decided in favour of assessing damages for pain and suffering. However, as the plaintiff is a paraplegic, he did not feel the fracture of the thigh that occurred in the accident in 2017.

In principle, compensation for pain and suffering is also due to the person who is unable to feel pain and suffering due to an impact on the body of the person that gives rise to liability. However, this does not apply if the restriction of the sense of pain existed prior to the infliction of damage. However, since the plaintiff's restriction was caused by the defendant, the loss of the ability to experience pain is significant in terms of damages and thus establishes liability here.

2 Ob 98/21g (21.10.2021)