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Lost Profit after a Ski Accident

Lost profits are a common consequence of skiing accidents. According to § 1323 ABGB, lost profit after a skiing accident is defined as the financial disadvantage that the accident victim would have secured without the skiing accident, but would have achieved with a high degree of probability.

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Lost Profit – Loss of Earnings

Lost profit has meanwhile lost significance, as jurisprudence mostly classifies financial damages as loss of earnings, which is advantageous for accident victims.

The essential difference is that a loss of earnings must be compensated even in cases of slight negligence by the party causing the accident, whereas lost profit must only be compensated in cases of gross negligence or intent.

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Requirements for the assertion

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

• Concrete Damage: This must involve the loss of a profit surplus that would have been achieved with overwhelming probability without the accident, but was not realized.
• Causality: The loss of profit must be directly caused by the skiing accident. The crucial factor is that the chance of profit 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: Compensation for lost profits requires gross negligence or intent. Lost profits will not be compensated in the event of mere slight negligence.
• Probability of Profit Generation: The injured party must be able to demonstrate that the income would have occurred with overwhelming probability, such as through ongoing contracts, order confirmations, or recurring revenues.

This makes it clear: Lost profit does not protect every abstract business opportunity, but only those concrete prospects of earnings that would have very likely occurred without the accident.

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Evidence

In order for a claim for lost profits 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.
• Business Documents such as balance sheets, income-expenditure statements, or business analyses to illustrate the actual income situation before and after the accident.
• Order and Project Documents for documenting already agreed upon or ongoing orders

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Calculation using the difference method

Lost profit is a loss of surplus that would have been generated with a high degree of probability. Lost profits due to a skiing accident are calculated using the difference method:

• The assets after the accident (actual situation) are compared with the assets without the accident (hypothetical situation).
• The decisive factor is which profit would have been achieved in the ordinary course of business or based on a concrete order situation.

Typical Calculation Bases for lost profit are:

• Results from past business years,
• existing orders or contract conclusions,
• seasonal specifics (e.g., high season in tourism),
• business analyses.

The courts do not require absolute certainty, but a preponderance of probability that the profit would have been made. Good documentation based on business records is therefore crucial.

Lost profits that would have been achieved with high or overwhelming probability are not considered lost profit by jurisprudence, but as loss of earnings.

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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 largely on the reaction of the opposing party to this letter. The widespread view that out-of-court negotiations are cheaper than court proceedings is often incorrect from the accident victim’s point of view.

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 the 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 profits is usually handled 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 generally 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 opposing parties 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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