Road Traffic Accidents: Liability Under Swiss Law

The Liability Regime for Road Traffic Accidents

The Federal Road Traffic Act (RTA) provides a specific liability regime for traffic accidents. This regime is primarily based on the aggravated causal liability of the keeper (art. 58 RTA), which is more stringent than ordinary liability under the Code of Obligations.

Keeper Liability (Art. 58 RTA)

Art. 58 para. 1 RTA provides that the keeper of the vehicle is liable for damage caused by the use of their vehicle, even in the absence of fault. This is aggravated causal liability: the keeper may only be released by proving that the accident was due to force majeure, gross fault of the injured party or of a third party, without any fault being attributable to them or to persons for whom they are responsible (art. 59 RTA).

The keeper is the person who effectively has the vehicle at their disposal and bears the operating costs. They are not necessarily the registered owner.

Driver Liability (Art. 41 CO and Art. 58 para. 4 RTA)

In addition to keeper liability, the negligent driver may be held liable on the basis of art. 41 CO (fault-based liability). In practice, the victim generally invokes keeper liability (art. 58 RTA), which is more favourable as it does not require proof of fault.

Allocation of Fault Between Keepers (Art. 61 RTA)

Art. 61 RTA governs the situation of a collision between two motor vehicles. If several keepers are involved, each is liable for the damage caused to the other, in proportion to their fault. If fault cannot be determined, damages are borne equally.

The Federal Supreme Court clarified in ATF 137 III 14 that the allocation of liability takes into account not only fault but also the inherent risk of each vehicle (size, weight, speed).

Grounds for Release (Art. 59 RTA)

Art. 59 RTA provides three grounds for release for the keeper:

1. Force majeure: an external, unforeseeable and irresistible event (natural disaster, for example). Case law is very strict on this concept.
2. Gross fault of the injured party or a third party: the fault must be sufficiently grave to be considered the exclusive or predominant cause of the accident.
3. Absence of any fault on the part of the keeper, driver or auxiliaries.

In practice, these grounds for release are rarely accepted. The liability regime of art. 58 RTA is intentionally stringent in order to protect road traffic victims.

Compulsory Liability Insurance (Art. 63 RTA)

Art. 63 RTA requires every keeper of a motor vehicle to take out liability insurance. This insurance covers bodily injury and property damage caused to third parties. The injured party has a direct right of action against the insurer (art. 65 RTA), which allows them to address the insurance company directly without going through the keeper.

The minimum coverage is set by the Federal Council. In practice, the insured amounts are generally very high (CHF 100 million for bodily injury).

Compensable Damage

In the event of an accident, the victim may claim:

1. Property damage: vehicle repair, replacement, towing costs
2. Bodily harm: medical costs, loss of earnings, permanent impairment (art. 46 CO)
3. Non-pecuniary loss: compensation for physical and psychological suffering (art. 47 CO)
4. Loss of support: in case of death, relatives may claim compensation for the loss of financial support (art. 45 para. 3 CO)

Limitation

The liability action is time-barred after three years from knowledge of the damage and the liable party, and at the latest after twenty years from the accident (art. 60 CO and art. 83 RTA). It is therefore essential to act promptly.