With the wind blowing through his hair, the e-biker pedals along almost automatically, lost in his own thoughts. In doing so, he underestimates the swift acceleration and approaches a sharp right-hand bend way to quick.

He looses control of his e-bike, falls off and slides onto the opposite carriageway where he collides with the passenger car approaching correctly but not able to prevent the collision despite an emergency stop. Fortunately, no-one is injured and only the car and e-bike sustain damage. It is clear to the rider of the e-bike that he is liable for the damage to the car. He is positively surprised when his insurance provider contacts him to inform him that he is also entitled to some partial compensation for the damage to his bike. Why is this?

These cases comprise what is known as liability collision. The individual liability norms are weighted against each other and the damage is split. The rider of the e-bike bears liability due to his culpability in accordance with the Code of Obligations (CO 41) and the owner of the motor vehicle due to increased causal liability in accordance with road traffic law (RTA 58). As a result, a vehicle owner behaving perfectly correct must also bear partial liability due to the operational risk for damages to third parties. The amount of the proportion of liability depends on various factors (culpability, speed, dimensions) and is assessed individually in each case.

We are familiar with such problems as recourse experts. We would be happy to take on complex liability and recourse issues for you to enable you to concentrate on your core business. Just call us!

Traffic accident between motor vehicle/railway train and pedestrian/cyclist: is the vehicle owner or rail company always liable?

Traffic density in Switzerland is high: around 6.4 million motor vehicles were registered in Switzerland in 2022, an increase of 39% compared to the year 2000.

Unfortunately, these vehicles also pose a significant risk of accident. Each year there are around 17,000 road traffic accidents involving personal injury in Switzerland. These accidents can cause permanent damage to the health of pedestrians and other road users and have considerable financial consequences.

What is the situation regarding liability? Is a motor vehicle owner liable in the event of a collision with a cyclist if the latter has failed to observe a “no right of way” signal? Does the rail company bear liability in the event of a collision between a pedestrian and a train for damages sustained by the pedestrian when crossing the tracks outside the level crossing?

As a rule, liability applies…

The liability of the owner of a motor vehicle is regulated by the Road Traffic Act (SVG), that of the railroads by the Railway Act (EBG).

Both laws are based on the same principle: the weight, mass and speed of a motor vehicle or train pose a risk, the so-called characteristic risk, that constitutes the liability of their owner regardless of culpability (Art. 58, para. 1 SVG and Art. 40b EBG).

This means that the motor vehicle owner or the train company is fundamentally liable in the event of road traffic accidents involving a motor vehicle or train. The injured pedestrian or cyclist can therefore claim compensation from the motor vehicle owner or train operating company (the issue of subrogation of social insurance carriers is deliberately excluded here).

… but not always: the exception

However, there are exceptions from this principle: for example, the owner is exempted from liability if the accident was caused by gross negligence on the part of the injured party, without any fault on his part and without defective condition of the vehicle having contributed to the accident (Art. 59 para. 1 SVG). The owner of a rail company is relieved of liability in particular in cases of force majeure or gross liability of the injured or a third party (Art. 40c EBG).

Is the exception extended?

Recently, several rulings have been issued in which this exception is applied by excluding the keeper’s liability on the basis of the conduct of the injured person.

For example, the Federal Supreme Court judged the behaviour of a pedestrian who crossed a road outside a zebra crossing but fewer than 50 metres away from it while a car was approaching from the right to be “highly dangerous” and accordingly fully exempted the driver of the vehicle from liability (BGE 4A_140/2020).

In another case, Zurich public transport operator VBZ was exempted from all liability following a serious accident involving a man and a streetcar. The Federal Supreme Court found that the pedestrian had acted with gross negligence by suddenly stepping onto the tracks with his eyes on his cell-phone without looking left.

In the case of a collision between a bicycle and a streetcar, the Federal Court also exempted the streetcar operator from any liability. It found that the cyclist had acted with gross negligence when he tried to cross a street from a sidewalk at a speed of about 15 km/h and was hit by a streetcar approaching from the left and having the right of way (BGE 4A_91/2022).

Is the accumulation of such rulings, in which a railroad company or a motor vehicle owner are exempted from liability, a coincidence or a sign of a relaxation of the owner’s liability?

Only time will tell!

It’s early in the morning. Still slightly sleepy, you are nevertheless attentive as you drive to the day-care centre where you are going to leave your child.

Shortly after, there’ll be an important team meeting at work, and you’re scheduled to visit a client before the morning is out. A full morning, not a minute of respite. Suddenly, a loud crash! Someone obviously less awake than you hit the rear of your car while you were waiting at a red traffic light. Not only your rear bumper, but also your entire schedule is in disarray. Utter stress. You need to settle the matter with the other driver, call the day-care centre to inform them of the delay, call your boss, and hope there will still be time to prepare the potentially lucrative meeting with your customer. A whirlwind of questions pile up within seconds: Is my child hurt? Am I hurt? What information do I need from the other driver (who is by now wide awake)? Do I need to call the police? Should I take the car to the garage to be repaired? Do I have to call the insurance company? Nothing but pressure!

We who handle recourse cases are confronted with a lot of stories like that. Often, the people involved fail to collect important information relating to their case. Only when the stress has subsided do they realise that certain details relevant for the assessment of liability and for recourse proceedings are missing. So often their claim for recourse fails because they cannot provide the necessary evidence.

Complete documentation of the facts is essential for such recourse proceedings. That’s why we like to become active already at an early stage of the claim reporting. Armed with the appropriate regulations, and with the help of artificial intelligence, we provide systematic support in identifying the claimant’s rights of recourse. Would you like to find out more, or does your recourse team need support regarding recourse-related topics? If so, please feel free to contact us!

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