In March 2016, the Austrian Supreme Court granted an award for pain and suffering to a patient for mental strain after a piece of broken scissors was left in his body following a surgery despite the fact that the claimant had not suffered any physical pain.

The action was brought against the manufacturer of the defective scissors under the Austrian Product Liability Act. The Act provides that a manufacturer or importer of defective products into the European Economic Area is liable for bodily injury caused by the defective product. This liability includes compensation for pain and suffering and that compensation should be awarded for ‘all physical and mental injury’.

The claimant’s concern was that the tip of the scissors would move around his body and harm his health.

On the evidence, it was found that although it was medically possible to remove the tip of the broken scissors from the claimant’s body, this would likely result in substantial damage to the pulmonary tissue around the vein into which the tip had slipped. On the whole, the claimant had not suffered any physical pain and the tip was too small to have any effect on the claimant’s general health.

The question before the court was whether the claim constituted mental injury justifying an award for pain and suffering. The court found that the claimant’s distress and uncertainty was not only a mental impairment which constituted discomfort and displeasure, but was an understandable consequence of a physical injury.

This uncertainty constituted a mental strain as a consequence of a physical injury for which the claimant was entitled to an award for pain and suffering.

Interestingly, the action against the hospital where the surgery was performed was dismissed by the lower court on the basis that the surgery had been conducted according to ‘state of art’.

In South Africa, a patient may have a right of recourse against everyone in the supply chain.

In South Africa, a patient may have a right of recourse against everyone in the supply chain of the pair of scissors under the product liability provisions of the Consumer Protection Act 2008. Harm is defined in the CPA as death or injury to any natural person. Bodily injury has long been defined by our courts to refer both to physical or mental/psychiatric injury or integrity.

A South African court would have awarded damages for pain and suffering if presented with the same facts.

The case, which is in German, can be accessed here.

Acknowledgment: Rainer Herzig.