Use of mobile phones in road traffic
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!
Published on 05.06.2023