In the event of a road traffic accident causing death and serious injury to others, in addition to criminal proceedings, victims or their relatives may also take civil action for various types of damages.
- Economic damages in the event of the death of a close relative
Article 45 of the Swiss Code of Obligations provides that in the event of homicide, compensation must cover the funeral costs (para. 1). If the death did not occur immediately, the compensation must include the costs of medical treatment, as well as the loss resulting from the inability to work (para. 2). Finally, if, as a result of the homicide, other persons have been deprived of their support, they must also be compensated for that loss (para. 3).
A supporter is defined as a person who, through regular and free services in cash or in kind, provides or would have provided all or part of the maintenance of another person. A distinction is made between two types of support: actual support and hypothetical support (4C.195/2001). In order to determine the amount of the latter compensation, i.e. the loss of support (Art. 45 para. 3 CO), it is necessary to estimate the hypothetical income that the deceased would have earned without the accident. The calculation of the damage resulting from the loss of support is different depending on whether the person was providing support in cash or in kind. The decisive moment for this calculation is the day of death (FCR 101 II 346). When the deceased's relative provides support in cash, the calculation is made considering several criteria: the probable income of the support, the proportion of this income devoted to the person supported, possible reductions and the duration of the support. If the same relative of the deceased provided support, not in money but in the form of work, the value of this support must be estimated. This is particularly the case for household work performed by the supporter. The calculation principles for household damage resulting from personal injury apply by analogy. The amount of compensation will be determined based on the individual case, which will be assessed by the judges on a case-by-case basis.
- Damages for personal injury
Article 46 of the Swiss Code of Obligations covers the costs of personal injury, the damage resulting from the inability to work, and the damage resulting from the loss of future earnings (paragraph 1). Personal injury means any damage to the victim's physical integrity (paralysis, amputation, muscular ailments, etc.) or mental health (neurosis, loss of memory, intellectual impairment, etc.). The concept therefore also includes somatic and psychological damage. Paragraph 2 of Article 46 CO provides for an exception to the principle that the decisive moment for calculating the damage is that of the judgment and allows the judge to reserve a review of the judgment.
Only the person directly affected by the perpetrator's conduct may claim compensation based on this article. The bodily injury must be of a certain gravity. Generally speaking, this is accepted when the injury is permanent (FCR 112 II 131). The case law accepts that this is also the case of a relative of the injured party who suffers a nervous shock that can be assimilated to a bodily injury.
The costs are the expenses that the injured party must incur because of the injury. They include the costs of treatment (ambulance, hospital, doctor, etc.), the costs of defending oneself through a lawyer and the costs of home care by relatives.
- Compensation for moral damages
Article 47 of the Swiss Code of Obligations allows the court to award the victim of personal injury or, in the case of homicide, the dependants of the deceased, an appropriate sum for moral harm. The relatives of the deceased have their own claim to compensation for the mental suffering they suffer because of the death. In this third and final part, we will focus on the case of the loss of a child in the event of an accident.
In principle, compensation for non-material damage in the event of the loss of a child gives rise to compensation for non-material damage, even if the victim had reached the age of majority and had already set up his or her own household. While the age of the victim does not in principle play a role, the case law sometimes holds that the parents' pain is greater when they lose their only child. According to FCR 112 II 118 (Hunter judgment), the law only allows damages to be awarded to the person directly affected by the unlawful act. Third parties injured indirectly and by ricochet do not have such a right. In particular, the Federal Court has stated that in the event of death, the list in Articles 45 and 47 of the Swiss Code of Obligations is exhaustive and that survivors cannot claim damages for the loss caused indirectly by the accident to the deceased's property (FCR 54 II 224). The judge must take account of the circumstances when deciding whether to award compensation for pain and suffering following a death. The death alone is not sufficient to award compensation for non-material damage to the relatives, nor is bodily injury alone. It is also necessary that the death causes them particularly severe suffering. Moreover, according to the Federal Court in its decision FCR 93 I 586, the moral damage is all the greater if the rightful claimant witnessed the death, if the deceased suffered, if the latter left his family in a precarious financial situation or if the perpetrator acted in a lowly or careless manner. In this context, the compensation must be assessed on a case-by-case basis, but we have found that it is generally around CHF 40,000.
In conclusion, victims of road accidents can invoke these provisions of the CO in order to obtain compensation for loss of support, bodily injury and moral damage, depending on the circumstances of the case. The amount of compensation will be determined by the judges on their own discretion. Victims also benefit from compensatory interest of 5% for each of these damages. In any case, the loss of a spouse is generally considered the most serious suffering, followed by the death of a child and the death of a father or mother.
By Jessica Baujard and Cécile Ledez, legal interns