News - Switzerland

Switzerland - April 2011

Limitation period for personal injury limits employers' exposure to claims

An important decision of the Federal Supreme Court confirms that the limitation period for personal injury claims for breach of contractual duty claims run from the date of the breach.

The case

The plaintiff worked  from 1962 as a turbine installer and from 1978 as an in-house turbine technician.  He claimed to have come intensively into contact with asbestos between 1966 and 1978. In 2004 he was diagnosed with a malignant lung cancer, which led to his death in 2005.  Thereafter, his two surviving daughters continued the lawsuit.  The lower courts rejected the liability claim and consequently the matter had to be judged by the Federal Supreme Court, which, however, also dismissed the claim.

Federal Supreme Court’s decision

According to the practice of the Federal Supreme Court, claims for compensation for personal injury at work arise at the moment of the breach of the relevant contractual duty giving rise to the damage.  Consequently, the limitation period starts at that moment (art. 130 of the Swiss Code of Obligations).  A minority of legal commentators are of the opinion that the ordinary statute of limitation of ten years (art. 127 of the Swiss Code of Obligations) should start when the damage complained of first occurs –which in this case when the symptoms of the cancer first arose.  However, the Federal Supreme Court confirmed its previous practice.  The court referred to the ability for special regulations to be made under relevant legislation for the limitation period to expire after a longer period where there is a latent damage claim dependant on the outbreak of an illness or disease.  It noted that the legislator had not chosen to pass such regulations to cover the type of illness or the circumstances which caused the death of the claimant.  However, for example, such regulations have been passed to apply to diseases and illnesses caused by nuclear radiation.

Resources

Decision of the Federal Supreme Court 4A_249/2010 of November 16, 2010

For further information or to discuss any of the issues raised, please contact Walter H. Boss or Thomas G. Albert on +41 44 220 12 12