Shock damage of close relatives: when is compensation available?

When a close relative is killed or seriously injured in an accident, the event can cause an independent health disorder in a family member. Under Austrian damages law, this may be recognised as shock damage and may support a claim for compensation for pain and suffering. The fact that the loss causes profound grief is not, by itself, enough.

The key distinction is between ordinary grief and a psychological impairment amounting to a medically recognised illness. The relationship, the particular suitability of the event to cause such harm, the responsibility for the underlying incident and the causal link to the claimant’s own condition must also be examined. The relative’s claim is an independent claim, not merely a transferred claim of the injured person.

Section 1295 ABGB provides the general basis for damages. Where the claimant suffers a health injury, section 1325 ABGB may be relevant. If a person dies, section 1327 ABGB can provide separate claims for legally recognised dependency and funeral losses. Those financial claims must be distinguished from shock damage and compensation for the relative’s own pain and suffering.

Grief, fear, sleep problems and temporary emotional distress are understandable after a devastating family event. The case law on shock damage nevertheless requires an impairment of health amounting to an illness. The relevant issue is a medically recognisable disorder, not only a loss of general well-being.

This can include a diagnosed post-traumatic stress disorder, depression or another psychological illness. The diagnosis alone does not decide the claim. The beginning, intensity, duration, treatment and specific connection with the accident or the information received are also important.

Psychiatric or psychotherapeutic treatment is not automatically a legal prerequisite in every case. It can, however, help document symptoms, development and causation. The guidance on personal injury and recovery costs helps organise health consequences and treatment expenses.

The courts do not rely only on a rigid family tree. Typical cases involve spouses, registered partners, life partners, children, parents and siblings. The relevant question is whether there was an intensive emotional relationship that made the event particularly devastating for this person.

For siblings, a shared household or an especially close life relationship can be important. For unmarried partners, the actual shared life may matter more than formal status. Conversely, a formal family connection does not remove the need to consider the real relationship. Contact, shared responsibilities and actual emotional closeness may all be relevant.

A person outside the usual circle of close relatives is not automatically excluded. The case law generally requires additional grounds of attribution for other third parties, such as qualified involvement in the accident or a comparable special relationship. That situation must be kept separate from a typical close-relative case.

Shock damage may result from witnessing the accident, seeing severe injuries or receiving news of a death or particularly serious injury. The claimant does not necessarily have to have been at the scene. The decisive questions are whether the event was suitable to cause the disorder and whether it actually caused or materially contributed to the claimant’s illness.

The conduct must also be objectively highly suitable to cause shock damage to a close person. The death of a relative or a very serious injury may meet that standard. A remote event or a later reaction without a sufficiently close causal connection will not automatically create an attributable health injury.

A medical and chronological record is useful. Note the event, the time of the message, first symptoms, medical contacts, the start of treatment and changes in daily life. If there was a pre-existing condition, it must be considered whether the event caused a new illness, intensified an existing one or had only a temporary effect.

Responsibility for the underlying event must be established in addition to the health disorder. This may involve fault under section 1295 ABGB. Depending on the facts, special liability rules may apply, for example after a traffic accident. Liability to the directly injured person and attribution of the relative’s shock damage are connected questions, but they are not identical.

Where there is an independent health injury, section 1325 ABGB may cover compensation for pain and suffering, necessary treatment costs and further consequences. These can include psychiatric or psychotherapeutic treatment, medication and other necessary expenses. The extent of recovery depends on evidence, causation and the applicable liability basis.

This is different from compensation for emotional pain caused by the loss alone. Under the case law, a claim without an independent health injury is subject to particularly strict conditions, especially gross negligence or intent. A legal assessment should therefore not label every case of grief as shock damage.

Start with the records concerning the underlying event, such as accident reports, official documents, photographs, witness accounts and medical reports concerning the injured or deceased person. For the relative’s own claim, keep findings, diagnoses, medical letters, treatment confirmations, medication records and proof of necessary expenses.

The relationship may also require evidence. A shared address, messages, calendars, care arrangements and accounts from people close to the family can show actual closeness and the shared life context. A statement of formal kinship does not always answer this question.

Section 1489 ABGB generally links limitation to knowledge of the damage and the person responsible. With psychological consequences, it may be unclear when an illness requiring treatment and its connection with the event became recognisable. Keep a timeline of findings, discussions, demands and responses. The guidance on evidence, negotiation and limitation helps structure this material.

A common error is to call every severe grief reaction shock damage. That loses the important distinction from an independent health injury. On the other hand, a psychological illness should not be ignored merely because it is not externally visible.

Incomplete event records create another problem. If only the death or injury is recorded, but not the time of the message and the beginning of symptoms, the causation assessment becomes harder. Preserve the development from the first reaction through treatment.

Claims by the injured person, dependency and funeral losses under section 1327 ABGB, and the relative’s own shock damage are often mixed together. The damage documents checklist helps separate each person, each head of loss and each supporting record.

Receive new articles and legal information from the firm with BRANDaktuellen Rechtsnews. Subscribe to the newsletter.