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  #141  
Old 23.06.2021, 09:55
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Re: Rear-End Accident - Fault Attribution

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I would say lawyer up but unfortunately for you in front of the Swiss judicial system there are Swiss and everybody else.
I have witnessed a case of police bias once.

I drove my (now-ex) father-in-law (German) to pick up a car somewhere near Liestal. Stupidly he put the plates from his AR-registered van on the car without first officially declaring it.

He drove only a kilometre before being broadsided by a too-old-to-be-driving local granny who totally missed a stop sign.

The police attended and treated the old lady like a victim, and my ex-FIL like a criminal at the scene...drug/breath test, the works. He was rightly fined for the compliance/insurance breaches, but he did receive insurance (not-at-fault party) for the collision itself. (clearly open and shut, fortunately).
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  #142  
Old 23.06.2021, 12:02
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Re: Rear-End Accident - Fault Attribution

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I have witnessed a case of police bias once.

I drove my (now-ex) father-in-law (German) to pick up a car somewhere near Liestal. Stupidly he put the plates from his AR-registered van on the car without first officially declaring it.

He drove only a kilometre before being broadsided by a too-old-to-be-driving local granny who totally missed a stop sign.

The police attended and treated the old lady like a victim, and my ex-FIL like a criminal at the scene...drug/breath test, the works. He was rightly fined for the compliance/insurance breaches, but he did receive insurance (not-at-fault party) for the collision itself. (clearly open and shut, fortunately).
How dare they treat someone illegally switching plates with such suspicion!
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  #143  
Old 25.06.2021, 15:58
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Re: Rear-End Accident - Fault Attribution

Does anyone know if the legal system here is based on contributory negligence (in which any share of blame in a collision, even 1%, disqualifies a driver from pursuing compensation from another party), or on comparative negligence (where each can pursue the other driver or drivers based on their level of fault) ?

Both drivers have been found at fault in the prosecutor's decision, on different counts (not keeping the distance, and braking without assuring the safety of the maneuver ...)

From a pragmatic standpoint, I would just pay the fine and move on. The insurance however won't confirm the payout scheme until the case is closed (have 10 days to object). I would not want to find out post factum that nobody gets compensated, and then have claims flying in.

Have engaged a lawyer for consultation next week ...
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  #144  
Old 25.06.2021, 17:20
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Re: Rear-End Accident - Fault Attribution

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Does anyone know if the legal system here is based on contributory negligence (in which any share of blame in a collision, even 1%, disqualifies a driver from pursuing compensation from another party), or on comparative negligence (where each can pursue the other driver or drivers based on their level of fault) ?

Both drivers have been found at fault in the prosecutor's decision, on different counts (not keeping the distance, and braking without assuring the safety of the maneuver ...)

From a pragmatic standpoint, I would just pay the fine and move on. The insurance however won't confirm the payout scheme until the case is closed (have 10 days to object). I would not want to find out post factum that nobody gets compensated, and then have claims flying in.

Have engaged a lawyer for consultation next week ...
What are you expecting to be compensated & by whom?
I think your expectations are out of kilter with Switzerland.
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  #145  
Old 25.06.2021, 17:26
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Re: Rear-End Accident - Fault Attribution

My experience in 1965 was as follows: I was stopped preparing to make a left turn. I was hit from behind. The native German-speaking Swiss who hit me told the police I had not signalled to turn left. The police took his word for it (my German then as now sucked; nobody spoke French or English). I was told that I was to be fined 25 frs and the other guy 100 frs and that the damages would be apportioned according to the fines. I said I wanted to see the judge. the police said: the Swiss take our word for it, the French, the Germans, etc. Why do you Americans demand to see the judge? The police would not let me out of their sight, which worked out well because I couldn't find my paperwork and they accompanied me to the hotel to look for it; turned out the accident had thrown the paperwork under the seat of the VW. So that eliminated the fine for not having licence & registration (not part of the liability issue). The judge came to see me at the luncheonette. He asked me what I wanted, wasn't I satisfied with his judgment? I said no, I had signalled. Judge said that the police report then was unsustainable, the guy who hit me wasn't around to give testimony, case dismissed. And I got 100% of the damages from the other guy's insurance company. In cash, same day. (That principle of comparative liability exists also in maritime law.)
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  #146  
Old 25.06.2021, 23:58
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Re: Rear-End Accident - Fault Attribution

Compensated by the other driver’s insurance. With both drivers having been attributed with a fault, the question is, in Switzerland, will both drivers be able to claim damages from the insurance of the other party, or none of the drivers can claim anything?
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  #147  
Old 26.06.2021, 07:18
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Re: Rear-End Accident - Fault Attribution

That's for the insurance companies to work out.

Tom
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  #148  
Old 26.06.2021, 08:34
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Re: Rear-End Accident - Fault Attribution

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Compensated by the other driver’s insurance. With both drivers having been attributed with a fault, the question is, in Switzerland, will both drivers be able to claim damages from the insurance of the other party, or none of the drivers can claim anything?
If you have damage cover, then the car will be repaired quite how the bill is picked up by each insurance co is down to them.
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  #149  
Old 27.06.2021, 00:14
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Re: Rear-End Accident - Fault Attribution

Well not quite - consider the baseline situation where both parties have 3rd party liability insurance only, and both drivers are found to be guilty by the police.
(damage cover policies make it seem that "insurance takes care of it all" - but the loss of claim rights on the 3rd party only transfers into increase in premiums on one's own insurance - same financial loss, presented in a different way).

I can only trust "comparative negligence" is applicable with the Swiss law - and then it become a question of the fault percentages. Even if it's 50-50, both drivers can still claim proportional damages.

If it's "contributory negligence" legal system, even a 1% fault disqualifies a driver from any claims altogether.

In our case, the prosecutor's office has ruled both parties are guilty, but not stated in which measure. I called the prosecutor and his answer was "it's up to the insurance" ... which might imply a civil suite on the horizon.
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  #150  
Old 27.06.2021, 00:56
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Re: Rear-End Accident - Fault Attribution

The whole question of damages, in Switzerland, typically deals with actual, direct losses sustained. In such a case, the main cost is the damage to the respective cars, and it will be covered by the insurance to do with running a car, and possibly by personal liability insurance. These insurances will pay for the repairs to the car or, in the case of a total write-off, for the pay-out sum. Which part is covered by whose insurance is, indeed, a matter for the insurance companies to sort out between themselves.

Another kind of costs would be under the accident insurance. If a person is employed for at least, on average, 8 hours per week, then their employer insures them for accidents not only at work but also in their free-time. The costs covered by the accident insurance include the medical treatment resultant from the accident, loss of earnings during times of treatment and recovery and, if ever it comes to that, a disability pension. For those not employed to this extent, their compulsory medical (illness) insurance will cover them (at least, persons not employed ought to have taken out an additional module for accident cover).

Claims of the kinds known in some other countries, such as some sort of payment to a party involved in a mishap or accident or offense, along the lines of "compensation for pain and suffering" or "restoration of dignity", etc. are virtually unknown in Switzerland.

Last edited by doropfiz; 27.06.2021 at 03:29.
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  #151  
Old 30.06.2021, 16:54
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Re: Rear-End Accident - Fault Attribution

We got notified the other driver has filed a claim for bodily harm, extending the criminal case scope. I cannot believe the nerve!
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  #152  
Old 30.06.2021, 18:23
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Re: Rear-End Accident - Fault Attribution

Against whom has this claim been made?

If any of the people involved has injuries (earlier I wrote about checking for whiplash, for example), then the place to get cover for the medical treatment and, if applicable, the loss of income, is one's own accident insurance.
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  #153  
Old 30.06.2021, 19:04
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Re: Rear-End Accident - Fault Attribution

Against my wife, by the driver who rear ended her ...

There was a 3 months period in which either party could file a bodily harm criminal claim as well, with the prosecutor's office. In the last days of this time frame, the other driver decided to go for it. This means the initial ruling proposal of the 500 CHF fine has been revoked, and the case goes "on trial".

We have not filed for bodily harm damages, as the whiplash effects were gone within a few weeks. We've only notified our health and accident insurer to cover the check-ups.
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  #154  
Old 02.07.2021, 04:44
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Re: Rear-End Accident - Fault Attribution

Disclaimer: I am not a lawyer.

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Against my wife, by the driver who rear ended her ...

There was a 3 months period in which either party could file a bodily harm criminal claim as well, with the prosecutor's office. In the last days of this time frame, the other driver decided to go for it.
This sounds like the other person is claiming (in the sense of stating, asserting) that your wife did something criminal, rather than claiming something (in the sense of a civil case demanding damages or compensation) from your wife.

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This means the initial ruling proposal of the 500 CHF fine has been revoked, and the case goes "on trial".
Are you certain about this going to Court? To me, that seems a bit of a leap, for two reasons: a) at this point the other party has merely asserted that your wife's was a criminal act, and that means the police have to investigage and the procecutor has then to decide whether or not to open a Court case to charge her with said crime; and related to that, b) it will take them some time to go through those steps, but you've only just been notified of it.

While anyone can claim that anyone committed any crime, at any time, the public prosecutor must first examine the evidence that the police present, and based on that decide whether there is sufficient substance to warrant opening a case, at all.

Here's an explanation of the steps to be taken for something to go to Court. Scroll down to "Procedure for a Criminal Case".
https://www.ch.ch/en/reporting-someo...filing-report/ (English)
https://www.ch.ch/de/anzeige-erstatten/ (German)

Here's the law defining bodily harm (Körperverletzung in German) which can be "Schwer" or "Einfach".
https://www.fedlex.admin.ch/eli/cc/5.../lvl_d3966e377
There's no official English translation, but both Art. 122 and Art. 123 begin with the phrase "Wer vorsätzlich...", which means, "[A person] who deliberately / intentionally..." does harm... and then those paragraphs describe various kinds of intentionally inflicted harm.
You can see this in the French version which starts: "Celui qui, intentionnellement..." and the Italian version, likewise: "Chiunque intenzionalment...."

Do you think that, after investigating the matter, the police would have any evidence of your wife's having had any intent to do harm? At least, from your description of what happened, that sounds unlikely.

Disclaimer: I am not a lawyer.
EDIT: Please see correction, two posts below this.

Last edited by doropfiz; 02.07.2021 at 23:52. Reason: EDIT: Please see correction, two posts below this.
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  #155  
Old 02.07.2021, 13:56
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Re: Rear-End Accident - Fault Attribution

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There's no official English translation,
Look on the left side, "Sprachen der Veröffentlichung".

That said, keep in mind that the translations in other languages are legally not binding, the error checks are far less rigourous and translation errors do happen. Some are massive, I've recently had one corrected where the German original said "A and B and C" whereas the English translation said "A and B or C".
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  #156  
Old 02.07.2021, 14:43
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Re: Rear-End Accident - Fault Attribution

Thanks, Urs Max. When I looked last night, there was a message saying that the English version was not available. Perhaps they were updating it just then.

Thanks to you, I was about to go back and edit my post, but now that I've seen the English translation, I'm less sure that I was quoting the appropriate law.

I took the phrase OP used: "bodily harm" to mean "Körperverletzung". This English version Art. 122 and Art. 123, however, uses the expression "assault", and so I'm not sure that's the same thing.
https://www.fedlex.admin.ch/eli/cc/5..._2/tit_1/lvl_3

OP, what is the term in German, please?
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  #157  
Old 02.07.2021, 17:26
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Re: Rear-End Accident - Fault Attribution

Within 3 months after a accident, one can file a "Strafantrag wegen fahrlässiger körperverletzung". This is why the prosecutor's office waits exactly 3 months before issuing a ruling.

The other driver clearly followed a legal strategy/advise - I think she's submitted the complaint at the very last minute, so that the provisional ruling would have been issued and sent first, before getting annulled once her move got registered by the prosecutor. This could be a technical legal defense strategy ...
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