Facts
On the morning of June 15, 1976, a head-on collision occurred on the A13 motorway between Sargans and Chur, involving a federal vehicle driven by Raimund Bischof and a truck belonging to Walter Kressig. Bischof was killed, while the truck driver remained uninjured. The Confederation, as Bischof's employer, provided benefits to his widow and son, who then assigned their claims against any liable party to the Confederation. The Confederation subsequently filed a lawsuit against the "Waadt" insurance company, the liability insurer of truck owner Kressig, for the payment of around 428,893 Swiss francs.
The Graubünden Cantonal Court awarded the plaintiff half of the claimed amount, as it divided the liability between the two vehicle owners in accordance with Article 60(2) of the Swiss Road Traffic Act (SVG). Neither the truck driver nor Bischof could be proven to be at fault, and therefore the different operational risks of the vehicles were decisive for the allocation of damages.
Considerations
The Federal Supreme Court confirmed the allocation of damages under Article 60(2) SVG. It stated that the defendant, as the insurer of the truck owner, had to prove under Article 59(1) SVG that Bischof had caused the accident through gross negligence. However, since there was uncertainty about Bischof's capacity to judge at the time of the accident, the proof of gross negligence could not be provided. Consequently, the defendant was not released from its liability.
Furthermore, the Federal Supreme Court…