Employer's recourse against the tortfeasor for reimbursement of the salary paid to the employee during incapacity to work

Facts

An employee of the Freistaat Bayern (the plaintiff) was injured in an accident caused by a driver insured with Alpina Versicherungs-AG (the defendant). During the employee's incapacity to work, the plaintiff continued to pay the employee's salary and provide ancillary benefits. The defendant acknowledged its civil liability and reimbursed the plaintiff for the salary payments in the amount of 18,380.15 DM. The plaintiff also claims 11,800 DM for all the benefits it provided due to its obligation to continue paying the salary. The District Court of Zurich dismissed the claim, while the Higher Court of the Canton of Zurich partially upheld it. Both parties appealed against this decision.

Considerations

The Federal Tribunal upheld the defendant's appeal and dismissed the claim, as the amount paid by the defendant exceeds the plaintiff's right of recourse.

The particular problem of the case lies in the fact that the injured employee does not suffer any financial damage, as he retains his right to the performance of the employment contract, i.e., the payment of the salary. This right to the salary does not transform into a right to damages when the employee is prevented from providing his performance. Since the employer, who is injured in its assets, is neither injured in an absolute right nor can it rely on a special norm aimed at protecting its assets against the type of harm that has occurred, the criterion of the unlawfulness of the damage caused to the employer is lacking.

Although the recourse of private and social insurers for their prior benefits in the event of damage caused to their insured is based on special legal rules of subrogation, there are no such rules concerning the payment of the salary in the event of the employee's incapacity to work. However,…