Liability of a Co-worker for Accident Consequences

Facts

On December 19, 1990, an accident occurred in the employer's workshop, in which employee [C.] sustained a pelvic and arm fracture. The appellant B., a co-worker of [C.], was found guilty of negligent serious bodily harm within the meaning of Art. 125 para. 2 of the Swiss Criminal Code (StGB) by the High Court of the Canton of Zurich and was fined. The victim's claims for damages were in principle approved, with the amount of the claims being left to civil proceedings.

Considerations

The Federal Supreme Court overturned the judgment and referred the matter back to the lower court for re-assessment. The lower court had failed to address the appellant's plea of the liability privilege under Art. 44 para. 2 of the Swiss Accident Insurance Act (UVG). According to this provision, the injured party loses their remaining claim against the liable party if the tortfeasor caused the accident without fault or only through minor negligence.

The Federal Supreme Court stated that the criminal court is obliged to address the issue of the liability privilege already in connection with the decision to approve the victim's civil claims in principle. Should the lower court, in the re-assessment, deny…