Heads of Damages according to Swiss Law

19. Dezember 2023

schadenanwaelte regularly deals with cross border personal injury liability cases. At the beginning, we are usually asked which heads of damages are recoverable under Swiss law. This article provides a brief overview of the heads of damages in the event of disability and death.

First of all, it is important to know that Swiss liability law is based on the principle of full compensation. The economic effects of a damaging act on the injured party are to be compensated for. There are exceptions to such principle, especially with regard to the loss of housekeeping capacity, the care of severely injured persons and the compensation for pain and suffering.

In the event of disability, the following damages can usually be claimed:

Loss of income: The damage is the difference between the hypothetical income without the accident (considering hypothetical pay increases) and the income after the accident. The net income is relevant, i.e. the gross income less any social security contributions. Any (social) insurance payments related to the loss of income are to be deducted from the damage.

Loss of capacity in the household: The calculation is based on a medical estimation of the inability to carry out the household tasks such as cooking, cleaning, washing etc. Firstly, it has to be estimated to what extent – in percentage – the injured person is handicapped in performing the activities. Secondly, the weekly hours the injured person would spend in the household without the accident are to be evaluated. Applying the percentage on said hours leads to the degree of disability in the household (certain amount of hours). Finally, the monetary value of the reduced hours is estimated.

For example: Weekly hours: 20, inability to work: 50 %, reduced hours therefore: 10, monetary value of every hour: CHF 30. Weekly damage: CHF 300. Damage per year: CHF 15’600.-.

It is important to know that such damage is due irrespective of whether a household help is employed or not and thus also of whether the injured person has any expenses concerning their household.

Compensation for the care of severely injured persons: A severely injured person (who is e.g. unable to fulfil their daily tasks) who has to be taken care of can claim damages. The person or institution taking care can be a family member, a hospital, a nursing home or a private nursing service. As in the compensation for any total or partial inability to run the household, it is not important whether the person taken care of employs or pays anybody. Therefore, such claim also arises if a relative takes care of another relative without getting paid. The calculation is based on an hourly rate and it has to be evaluated how many hours of care the injured person needs.

Medical Costs: The costs of the necessary and appropriate medical treatment and / or medication due to the accident are recoverable.

Further Costs: These are especially costs occurred related to transport and rescue and, if applicable, costs for special tools like wheelchairs, prosthetic devices, hearing aids etc., if such tools are needed due to the injuries suffered from the accident.

Compensation for Pain and Suffering: If the injured person suffers from permanent physical injuries or psychological complaints or from severe temporary medical issues, a compensation for pain and suffering can be claimed. The judge has a wide discretion. The amount is especially dependent upon the severity of the injury.

In the event of death, the following damages have to be assessed:

Loss of dependency income / financial dependency: The claimant must have been supported by the deceased person. Such support had to be considerable, regular, gratuitous and intended to be provided over a longer period of time. Additionally, it is required that the supported person cannot maintain the previous living standard due to the death of the supporting person.

Loss of services / household support: The deceased person must have regularly and gratuitously supported family members or other persons in their household and / or child care. Such heads of loss is usually relevant if the deceased person was a wife or husband in the same household supporting each other and / or their children. The hours of the time spent in the joint household supporting the other person(s) have to be evaluated. Finally, the monetary value of the hours is estimated. In Switzerland, a monetary value of around CHF 30 per hour is usually applied.

Memorial expenses: All costs directly resulting from the death, especially funeral costs, transport costs, costs for obituaries etc. are recoverable.

Bereavement / compensation for pain and suffering: The compensation for pain and suffering is at the discretion of the judge. However, jurisdiction established certain basic amounts for relatives which are to be increased or reduced depending on the circumstances of the case at hand. The basic amounts are usually as follows:

Loss of a spouse: CHF 30’000 – CHF 50’000

Loss of a child for each parent: CHF 15’000 – CHF 35’000

Loss of a parent for each child: CHF 10’000 – CHF 30’000

Loss of a sibling living in the same household for each sibling: CHF 5’000 – CHF 8’000

In general, the necessary and reasonable lawyers’ fees which occurred in connection with the accident (e.g. for the correspondence with the counter party, the damage calculation or social insurance proceedings) are also qualified as damage and can thus be claimed.

Finally, it should be noted that interest of 5 % on the accumulated damage can be claimed up to the date an amicable settlement is reached or a court decision is rendered. The future damage is currently capitalized on a basis of 3.5 %.

RA Silvio Riesen