Cyclists, pedestrians, motor vehicles - liability rates in practice

A road accident between a motor vehicle and a vulnerable road user (pedestrian or cyclist) raises complex legal issues in practice. The so-called liability ratio, which reflects the interplay between the motor vehicle owner's strict liability and any fault on the part of the injured pedestrian or cyclist, is often decisive for the extent of the liability for damages. A special role is also played here by the right to a proportionate share, which enables the injured party to obtain better compensation for their damage even if they were at fault themselves.

At the centre of road traffic law is the causal liability of the motor vehicle owner in accordance with Art. 58 Para. 1 SVG. This standard establishes strict liability, which deviates from the principle of fault-based liability under Art. 41 CO. The owner of a motor vehicle is generally liable for damage caused by the operation of his vehicle - regardless of whether he is at fault. This increased liability is justified by the increased risk potential of a motor vehicle compared to weaker road users (see BGE 111 II 89). The risk inherent in the operating hazard is to be passed on to the owner as the person who brought the hazard onto the road. In the event of a collision between a car and a bicycle or pedestrian, the owner may therefore be liable even if he is not at fault.

However, the motor vehicle owner's liability is not unlimited. According to Art. 59 Para. 1 SVG, liability is excluded or reduced if the damage was caused by force majeure or gross negligence on the part of the injured party or a third party. However, the owner or driver must not be at fault and there must be no overriding operational risk. In the event of an accident in which both the operating risk of the car and the fault of the injured party (self-inflicted damage) are causal for the damage, it is therefore determined who has to bear which share of the damage. The following factors are central to determining the liability ratios:

Operating risk of the vehicle

The mere placing of a motor vehicle on the market gives rise to liability. The operating risk is determined on the one hand by the speed and on the other hand by the weight (mass) of the vehicle (BGer 4A_479/2009 of 23 December 2009). It is not determined in the abstract, but on the basis of its effects in the specific situation (BGer 4A_5/2014 of 2 June 2014). In case law, the operating risk is typically attributed a share of 30% to 60% (BGer 4A_479/2009 of 23 December 2009). However, there are also shares of the operating risk - in the absence of fault on the part of the motor vehicle driver - of 80% (BGE 111 II 89 in the case of high operating risk).

Fault of the pedestrian or cyclist (self-inflicted fault)

If the weaker road user has violated a traffic rule or behaved carelessly, this constitutes self-culpability, which reduces liability. It can range from slight to gross.

In the case of misbehaviour in road traffic, gross negligence is generally assumed if an elementary traffic regulation or several important traffic rules were seriously violated in causal connection with the accident. In these cases, the concept of gross negligence is to be defined more broadly than that of gross violation of traffic regulations under Art. 90 para. 2 SVG, which presupposes reckless or otherwise seriously irregular behaviour (BGE 148 III E. 4.3.3), e.g. crossing a busy main road outside a built-up area without making (sufficient) sure that the road is clear (BGE 111 II 89).

Gross negligence on the part of the motor vehicle owner can even completely exclude liability in accordance with Art. 59 Para. 1 SVG. However, the prerequisite for this is that the motor vehicle owner or driver cannot be blamed for any fault, cf. e.g.

• BGer 4A_140/2020 of 09.07.2020 for the case in which a pedestrian crossed a road less than 50m from a pedestrian crossing in the dark and wet, so that an approaching car did not see her
• BGer 4A_105/2020 of 19.05.2020 for the case in which a pedestrian suddenly crossed a multi-lane carriageway less than 50m from a pedestrian crossing, first crossing a free lane, then another lane where there were vehicles, and finally throwing himself or falling into a third lane where a car was approaching
• Crossing the lane unexpectedly while looking at the mobile phone without paying attention to the traffic (BGE 144 III 343 i.c. with a tram; fault interrupts causality)

In an article published last year, Huber/Frei dealt in detail with the interplay between operational risk and fault (see HAVE 2024/1, p. 11-19). Based on Huber/Frei, the following examples result:

A cyclist causes an accident by disregarding the right of way (moderate fault, see argumentation in BGer 4A_663/2014 of 09.04.2015 E. 3.2.2, which, however, was not followed by the Federal Supreme Court) caused an accident with a motor vehicle that was travelling correctly and whose driver could not have prevented the accident even if he had exercised due care (no fault, ordinary operating risk). The damage suffered by the cyclist amounts to CHF 10,000.

• Share of cyclist: 40%
• Car operating risk: 60%

The cyclist must therefore pay CHF 4,000 of the damage herself. In the reverse case, where the cyclist causes damage to the car, the quotas apply analogously, whereby the cyclist's liability is based solely on her fault (Art. 41 CO, without operational risk). However, if the driver of the vehicle is also at fault in the moderate range, the cyclist's share is reduced to 20%. He can therefore claim CHF 8,000 from the injuring party or his liability insurance.

How operational risk and fault are to be weighted must be determined on a case-by-case basis, whereby the qualification of fault (and probably also of operational risk) is not a question of fact but of law (BGer 4A_453/2017 of 12 July 2018 E. 2.6, not published in BGE 144 III 319). The case law of the Federal Supreme Court is correspondingly extensive and must be consulted in any case.