Facts
This decision of the Swiss Federal Tribunal concerns a case of a road accident that resulted in personal injury to the victim. The main factual elements are as follows: - On 1 February 1995, B. collided with the rear of the vehicle driven by A. (the claimant), which was stopped in front of a pedestrian crossing in the city of Zug. - A. suffered a spinal distortion as a result of the collision. - A. claimed from B.'s (the defendant's) liability insurance the payment of damages in the amount of CHF 1,303,747.90. - The cantonal court ordered the defendant to pay A. CHF 1,287,673, plus interest. - On appeal, the higher court reduced A.'s claim by 20% due to her constitutional predisposition. - The defendant appealed this decision to the Federal Tribunal, which partially upheld the appeal.Considerations
From a legal perspective, the Federal Tribunal held the following main elements: 1. The victim's constitutional predisposition must be taken into account either in the calculation of the damage (Art. 42 CO) or in the determination of the damages (Art. 44 CO). In this case, the claimant's predisposition aggravated the consequences of the accident, so it should be considered under Art. 44 CO. The cantonal court reduced the claim by 20%, which is not contrary to federal law. 2. Disability insurance benefits must be offset against the…