Self-fault and quota prerogative: simply explained

In the last blog post, we looked at self-fault and the liability ratio. In this article, we look at the effects on recourse and the interplay between recourse and direct damage if the injured person is at fault: does the injured person lose the right to financial compensation from the liable party if the social insurance benefits exceed the reduced liability claims?

The Federal Supreme Court dealt with this question in a landmark judgement (BGE 151 III 328). The judgement was based on a serious accident at work. An employee's left hand was caught in an embossing machine and he suffered considerable physical and psychological injuries. The consequences were long-lasting: severe functional limitations of the hand, pain and psychological stress. In principle, it was clear that the employer was liable for the accident. However, the injured party was also responsible for a small part of the accident. The accident was therefore self-inflicted.

The injured party demanded compensation from his employer. Colloquially, this is also referred to as compensation for pain and suffering. At the same time, the compulsory accident insurance paid the injured party an integrity compensation. This benefit is intended to compensate for a permanent impairment of physical or mental integrity. The employer now claimed that the injured party was already fully compensated with the integrity compensation because the compensation reduced due to self-inflicted injury was less than the amount of the integrity compensation. The injured party invoked the prerogative of proportionality and demanded the difference between the integrity compensation and the unreduced compensation.

In order to understand the two positions, it is important to bear in mind the interplay between liability and social insurance law. In principle, the following applies: If a social insurance company pays benefits for damage caused by a liable third party, it may reclaim these benefits. This is known as recourse. The social insurance company is subrogated to the claims of the insured person and can demand compensation from the liable party, but only up to the amount of the benefits it has paid. This principle is intended to prevent the liable party from being released from their responsibility and the community of insured persons from bearing the loss. As a counterpart to this, the injured party's claim under liability law against the liable party is limited to the so-called direct damage. This is the part of the damage that is not covered by social insurance and remains with the injured party. Under the heading of compensation, the injured party can therefore only claim the amount remaining after deduction of the integrity compensation from the liable party.

In terms of the judgement: The court assessed compensation of CHF 41,000, which it reduced by 25% to CHF 30,750 due to self-inflicted damage. The integrity compensation from the compulsory accident insurance amounted to CHF 31,500 and was therefore higher than the reduced compensation, i.e. the injured party would have no remaining (direct) damage. However, the plaintiff now claimed that he was entitled to the difference between the unreduced compensation and the integrity compensation, CHF 9,500.

If the position of the liable party were to be accepted, this would mean that they would be released from their liability to a certain extent because they would only have to pay the social insurance recourse and the injured party would be left empty-handed. This is precisely what the quota prerogative is intended to prevent. According to Art. 73 para. 1 ATSG, the injured party has a preferential right of distribution or quota in relation to the recourse social insurer. The right of priority means that the insurance company may not take recourse to the detriment of the injured party. If it only compensates part of the damage, the injured party can claim the uncovered part from the liable party and the insurance company is only entitled to recourse within the scope of the remaining liability claim. The privilege of the right of first refusal is intended to protect the injured party from uncovered damage, but not to enrich them (BGE 151 III 328 E. 2.1). This is intended to ensure that the injured party is fully compensated first before third parties who have collected contributions or premiums have their say.

The Federal Supreme Court therefore ruled in favour of the injured party and awarded him an amount of CHF 9,500 under the heading of compensation, despite the fact that he was at fault. In the specific case, the Federal Supreme Court first examined the amount of the compensation without reduction. This amount was higher than the integrity compensation already paid by the compulsory accident insurance. Only then did the court take into account the self-inflicted injury. The decisive factor was the consideration that self-inflicted injury does not change the actual pain, impairment and mental suffering suffered. In the specific case, this suffering was not less just because the injured party was partly responsible.

The decision makes it clear that self-culpability does not automatically lead to the loss of claims. The quota prerogative protects the injured party from going away empty-handed. The reduction due to personal negligence is not at the expense of the victim, but primarily limits the recourse of the social insurance.

And finally, a brief digression: In addition to the preferential right of quota in the sense of a preferential right of distribution, there is also the preferential right of satisfaction (Art. 73 para. 3 ATSG). This applies if, for example, the sum insured under the liable party's insurance policy is not sufficient to settle the claim. In this constellation, too, the injured party has priority over the social insurers' right of recourse.