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Loss of Earnings after a Skiing Accident

Loss of earnings is a common consequence of skiing accidents. According to § 1325 ABGB, loss of earnings after a skiing accident is the financial damage suffered by the accident victim because they are temporarily or permanently unable to pursue their previous profession or other gainful employment due to the consequences of the accident.

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Loss of Earnings – Loss of Profit

If the opportunity to earn was not secured (fixed job, contract, preliminary contract, binding offer), but merely very likely, then this does not constitute a loss of earnings, but possibly only a loss of profit. This is more disadvantageous for the accident victim.

The essential difference is that a loss of profit is only to be compensated in the event of gross negligence or intent on the part of the accident causer, while the loss of earnings is to be compensated even in the event of slight negligence.

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Typical Constellations after Skiing Accidents

Skiing accidents often lead to serious injuries that result in a loss of earnings:

• Several weeks or permanent incapacity for work of employees
• Collapse of business for self-employed persons due to the absence of the owner
• Permanent reduction in earning capacity after serious injuries
• Loss of overtime, allowances, commissions and tips

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Requirements for the Assertion

In the event of bodily injury, the compensation also includes the loss of earnings. In order for a claim for loss of earnings to be enforceable, certain legal and factual requirements must be met:

• Concrete damage: This must be the loss of a profit surplus that you would have earned with a high degree of probability without the accident. Mere wage losses of employees are not included.
• Causality: The loss of earnings must be directly caused by the skiing accident. The decisive factor is that the earnings would actually have been realized without the accident.
• Illegality: The behavior of the accident causer must have violated legal obligations or recognized rules of due diligence (e.g. FIS rules, traffic safety obligations).
• Fault: The compensation for loss of earnings requires slight negligence.
• Probability of earnings: The injured party must be able to demonstrate that the earnings were secured or would have occurred with a high degree of probability bordering on certainty.

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Evidence

In order for a claim for lost profit to be enforceable, you must specifically prove the course of the accident, the fault of the opponent and the occurrence of damage. Important evidence includes:

• Site plans, photos, videos, police accident reports and witnesses to prove the course of the accident and the fault of the opponent
• Sick notes, medical certificates and treatment reports to confirm the injury and the duration of the incapacity for work.
• Pay slips or business management documents such as balance sheets, income-expense statements or business management evaluations to present the actual income situation before and after the accident.
• Pay slips, sick pay and pension statements to document the reduced

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Calculation Using the Difference Method

Loss of earnings is a lost or future loss of earnings caused by bodily injury. The loss of earnings due to a skiing accident is calculated using the difference method:

• The earnings after the accident (actual situation) are compared with the earnings without the accident (hypothetical situation).
• The decisive factor is which earnings would have been achieved in the ordinary course of events.
• Tax effects must be taken into account so that the net loss is fully compensated.

Essential points

• An earnings loss pension can compensate for the structural disadvantage on the labor market if a continuous concrete quantification is not possible without gaps.
• The entire affected period is considered, not selective months.
• Fixed and variable salary components are included, as are regularly earned overtime and allowances.
• In the case of permanent damage, a current pension or a carefully considered capital settlement may be considered.

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Non-self-employed Persons

For employees, the statutory continued payment of remuneration initially has a relieving effect, but in practice there are often gaps. These gaps arise because certain income components are not replaced during sick leave.

Typical examples of compensable losses:

• lost overtime pay
• shift allowances not paid
• eliminated commissions
• Tips that cannot be earned if you are unable to work

The difference between full income and reduced payments must be compensated as loss of earnings. Employers and social security providers can take recourse, but this does not reduce the injured person’s claim – it merely regulates the payment flows.

Self-employed Persons and Entrepreneurs

For self-employed persons, the loss of earnings only affects the income from their own work. The basis for the calculation is business management evaluations, income-expense statements and the specific order situation. Purely capitalistic profit shares or business opportunities are not included – these fall under the general loss of profit pursuant to § 1323 ABGB and must be examined separately.

Typical factors are the evaluation of balance sheets, forecasts of seasonal peaks, compensation for necessary replacement staff and accident-related additional costs. It should be clarified that extraordinary personal efforts of the injured party must not benefit the injuring party.

In the case of shareholder-managing directors, a precise distinction must be made: Only the income from the personal activity as managing director is compensable within the scope of the loss of earnings. Profit distributions from the company are not considered loss of earnings, but belong to the area of lost profit.

Future Damage and Pension Damage

If the reduction in earning capacity persists, a look into the past is not enough. Future disadvantages must also be compensated.

These include in particular:

• ongoing pension payments to secure the livelihood
• Consideration of pension damage: missing contribution periods or reduced contribution bases lead to lower old-age benefits
• Possibility of compensation through earmarked pension payments or later compensation via pension differences

The choice of the right strategy needs to be carefully considered, as it has long-term financial implications.

Required Documents

A solid evidentiary basis is necessary for successful enforcement.

Collect in particular:

• medical certificates of incapacity for work and its duration
• Pay slips, salary statements, employment contracts and proof of overtime and allowances
• for self-employed persons: balance sheets, income-expense statements, business management evaluations, order lists
• Notices of sick pay and other benefits
• Receipts for replacement staff, contractual penalties and accident-related additional costs
• Evidence of lost career opportunities, e.g. fixed promised promotions or scheduled orders

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Typical Mistakes that Cost Money

In order to avoid losses, those affected should avoid these mistakes:

• missing proof for variable income components
• too short comparison periods that hide seasonal fluctuations
• no consideration of pension damage and indexation
• premature severance agreements without securing future risks
• Negotiations without a well-founded calculation or medical reports

Enforcement of Claims

The first step towards enforcing the loss of earnings is a lawyer’s letter of demand.

For cost reasons, the further procedure depends essentially on the reaction of the opposing party to this letter. The widespread view that out-of-court negotiations would be cheaper than court proceedings is often incorrect from the perspective of the accident victim.

In reality, opponents, their liability insurance companies, but also the victim’s legal expenses insurance often do not have to reimburse out-of-court costs in many cases. This means that the accident victim must quickly bear out-of-court costs themselves if too many out-of-court negotiation attempts are made.

If, therefore, the opposing party does not react to the letter of demand at least with an acknowledgement of the claim in principle, but with a request for further information or even a rejection, then the immediate judicial enforcement of the claims is indicated.

The costs of the court proceedings are to be reimbursed by the accident victim’s legal expenses insurance and, in the event of the accident victim winning the case, also by the accident causer.

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Role of Liability Insurance

In practice, the claim for lost profit is usually processed by the liability insurance of the injuring party. This checks in particular whether the fault of its policyholder and the damage to the accident victim are sufficiently proven.

• In the event of clear liability, the insurance company covers the costs.
• In the event of disputed facts, there may be settlement negotiations or court proceedings.
• In the event of intent, the liability insurance usually does not pay. In this case, the injuring party is liable.
• In the case of piste operators, their business liability insurance steps in if there is a breach of duty (e.g. lack of security).

Your Benefits with Legal Assistance

The enforcement of claims for loss of earnings after a skiing accident is complex. Even small errors in the calculation or the presentation of evidence can lead to significant financial disadvantages. Experience shows that accident opponents and insurance companies examine such claims particularly strictly and use any ambiguity to their advantage.

Our law firm supports you with

• the calculation of your claims,
• the collection of all evidence,
• the negotiation with the opposing party,
• the judicial enforcement of your claims and
• the monitoring of the payment by the opponent.

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Frequently Asked Questions – FAQ

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