End the ski day with a few drinks in a bar at the edge of the ski slope: For many, the après-ski experience is an essential part of any winter sports day. However, what happens if later on, in a drunken state, the skier has an accident involving a snow groomer? Is there liability in such a case or does this fail from the outset due to grossly negligent behaviour by the skier? An English judge recently had to rule on this question in connection with an accident in Switzerland, applying Swiss law. Read here about the accident in more detail, how the proceedings in England came about in the first place and how the judge decided.

In concrete terms, the following accident was to be assessed: After a day of skiing, a group visited a bar that was located in the middle of the ski resort and remained open after the slopes had closed. After consuming a few alcoholic drinks, the members of the group strapped on their skis and crossed a piste that was being prepared by snow groomers. One of them fell and could not to get back on his feet. The driver of a snow groomer manoeuvring in reverse did not see the skier and ran him over. The skier escaped with relatively minor injuries. Subsequently, it was disputed whether the snow groomer’s motor vehicle liability insurance had to pay damages. The skier took legal action.

Before Brexit, the UK, like the other member states of the European Union, was party to the so-called „Lugano Convention„, which, among other things, regulates jurisdiction in civil and commercial matters in cross-border disputes. Switzerland is also a contracting state to the Convention. According to the Lugano Convention, in the case of an accident involving motor vehicles, which also include snow groomers, an injured person can bring an action against the liability insurance company with which the vehicle is insured at his or her place of residence (we have already reported on this and also on the extension of this place of jurisdiction for claimants due to the new direct right of action in the Swiss Insurance Law Act). Since the claim was brought before the courts prior to Brexit, an English court had jurisdiction. However, the judge had to apply Swiss law as the accident occurred here.

Attorney Silvio Riesen of schadenanwaelte was called on as an expert by the English lawyer for the claimant in those proceedings  and in this capacity had to answer various questions on Swiss law during an oral hearing before the English court. In the end, it was up to the judge to assess whether the skier’s behaviour (crossing a closed piste on which snow groomers were operating after consuming alcohol) qualified as grossly negligent. Grossly negligent behaviour occurs – to put it very simply – when one has to ask oneself: „How could he do that?“. The judge found that there was no such serious fault and therefore affirmed liability. However, he reduced the damages by 40 % as he also saw the skier as responsible for the accident.

In our opinion, this is a fair judgement, especially if one considers that ski resorts with their après-ski offers or licences of corresponding pubs make such behaviour possible in the first place. Accordingly, the presence of skiers on closed slopes after a visit to a bar is not uncommon. Consequently, the judge did not conclude: „How could he do that?”

If you are interested in further information on the judgement in this case, please feel free to contact Attn. Silvio Riesen.