30.07.2014
Since 2001, case law has allowed compensation for grief over the loss of close relatives. However, certain conditions must be met for this to happen.
Firstly, the person who caused the damage must be seriously at fault, i.e. gross negligence or intent. Another decisive factor is the existence of an intense emotional bond between the victim and a close relative. The question now arises as to whether such an “intense emotional bond” exists in a situation in which the father did not even know his child (or was able to get to know him); in other words, whether it is possible to award bereavement damages if one parent loses his child during the birth process. In a recent legal case, the Graz Higher Regional Court answered this question in the affirmative (Graz Higher Regional Court 25.7.2013, 3 R 127/13s). The fact that the child was a planned child and the father attended all of the prenatal examinations led the court to the view that an intense emotional bond already existed between the unborn child and the father. Finally, the father developed a strong grief reaction as a result of the death of his child. In this case, his bereavement compensation was assessed at €10,000. The midwife had to pay this amount because she performed a home birth despite urgent warnings from the treating doctors. However, the court stressed in this case that in a situation such as the one described above, parents are not automatically entitled to compensation for bereavement, but that it depends on the individual case.