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Austria: Damages for Pain and Suffering

(Jan. 2, 2008) In a decision of September 27, 2007 (Oberster Gerichtshof [Supreme Court], Sept. 27, 2007, docket no. 2 Ob 135/07b, at Bundeskanzleramt Rechtsinformationssystem [BKA/RIS]), the Austrian Supreme Court affirmed a trial court decision that had awarded ¿35,000 (about US$51,550) for the mental anguish suffered by the 14-year-old survivor of the tortuous death of his mother, with whom he had a special relationship because she was his only close relative and he was mentally disabled. In affirming the trial court's decision, the Supreme Court reviewed other recent decisions that had awarded damages for the mental anguish of survivors under particularly harrowing circumstances and found that the award of the trial court was in keeping with the Austrian practice of awarding damages for mental anguish. The Supreme Court rejected a criticism voiced in the legal literature according to which the trial court's award amounted to 'American trial practices.' The legal basis of the decision was the general torts clause of the Austrian Civil Code, section 1295 (ALLGEMEINES BÜRGERLICHES GESETZBUCH, (last visited Dec. 31, 2007).) The Supreme Court decision shows that Austrian case law is beginning to increase damages for the mental anguish of survivors.