Holiday time - accident time

It's that time again: summer holidays!

Pack your swimsuit, canoe, climbing gear and bike and head out into the great outdoors for an adventure. But be careful. Certain leisure activities harbour such a high risk that it cannot be reduced to a reasonable level. If an accident occurs, the legislator believes that the costs should not be borne in full by the insured community.

One speaks of an absolute risk if an action is associated with dangers that cannot be reduced to a reasonable level regardless of the specific circumstances or if there is a lack of protection worthy character of an action associated with particularly great dangers or if a corresponding action appears absurd or reprehensible. It does not matter whether all safety precautions have been taken.

Anyone who performs such an act and injures themselves in the process must expect a 50 per cent reduction in cash benefits; in serious cases, benefits may be excluded. Medical expenses cannot be reduced.

Extreme sports, such as base jumping, speed flying or diving to a depth of more than approx. 40 metres, as well as competitive sports such as motocross or motorboat racing, are considered to be hazardous. Full-contact sports such as boxing or Thai boxing are also considered an absolute risk.

However, it does not necessarily have to be a specific sport; an absolute risk can also be a single, particularly risky act. For example, the Federal Supreme Court qualified a head dive into unknown water as an absolute risk, as the risk of injury after the jump depends only on chance, i.e. whether the water is deep enough (judgement of the Federal Supreme Court of 4 December 2012, 8C_274/2012). Particular caution is therefore required when jumping headfirst into cool water. Otherwise there is a risk of considerable reductions in benefits or even exclusion from benefits.

The Federal Supreme Court also categorised the increasingly popular sport of dirt biking (riding bikes on jumps) as an absolute risk (BGE 141 V 37). The Federal Supreme Court emphasised that the risk could only be limited if the obstacles and jumps did not exceed a minimum height. It therefore depends on the design of the bike park whether there is an absolute risk or not. Even hobby bikers are therefore not immune to reductions in benefits.

Travelling to countries for which the Federal Department of Foreign Affairs has issued a travel warning can also constitute an absolute risk. In one case, a traveller was taken hostage by the Taliban in Pakistan. The Federal Supreme Court emphasised the uncontrollable situation in Pakistan with regard to kidnappings and politically and religiously motivated acts of violence and denied a claim for benefits based on an absolute risk (BGE 141 V 216).

In contrast to the absolute risk is the relative risk. In the case of a relative risk, the dangers associated with the act can be reduced to a reasonable level. What is relevant here is whether the personal abilities, characteristics and precautions are fulfilled in order to reduce the risk inherent in the activity to an acceptable risk. In the case of relative risks, it is examined on a case-by-case basis whether the person involved in the accident did everything possible to reduce the risk to a reasonable level. If this is not the case, a 50 per cent reduction in cash benefits or a complete exclusion must be expected.

Sports and leisure activities that involve an increased risk of injury are to be regarded as relative risks. These include, for example, mountain sports such as mountaineering or mountain climbing (BGE 97 V 72), snowshoeing (Federal Supreme Court ruling of 21 February 2013, 8C_987/2012) or canyoning (BGE 125 V 312). Here, it depends on the planning, the way the activity is carried out, the equipment carried, the expertise of the participants and the external conditions, e.g. the weather. Whether a relative risk exists therefore depends on the individual case. An inexperienced mountaineer who falls on the Matterhorn in sandals will have to accept a reduction in benefits or exclusion; a well-equipped mountaineer who is surprised by an unforeseeable change in the weather, on the other hand, will not. Diving or cave diving, delta sailing or non-competitive karting are also relative risks - who hasn't heard of the karting track on the Magadino plain in Ticino? Other activities that are seen as a relative risk:

• Jumping with a single kayak from a bridge from a height of 7 metres (EVG, 19.9.2006, U 122/06)
• Roller board descent, non-competitive (EVG, 5 March 2001, U 187/99)
• Streetludge (street tobogganing, Federal Supreme Court judgement of 9 May 2016, 8C_638/2015)
• Climbing from the garage forecourt to the balcony on the 2nd floor, 5 metres height difference, in slippers without heel part, i.e. without "climbing finches" (judgement BGer of 11.1.2013, 8C_640/2012)
• Climbing over a balcony railing (Federal Supreme Court judgement of 27 April 2015, 8C_317/2014)

To date, the Federal Supreme Court has not classified non-competitive and non-timed downhill biking, at least on a blue slope, as either an absolute or relative risk (Federal Supreme Court ruling of 6 October 2020, 8C_715/2019).

Absolute and relative risks do not depend on the fault of the person involved in the accident. It is therefore irrelevant whether the person involved in the accident was negligent. The only decisive factor is the performance of a hazardous activity. However, accident insurance can also reduce benefits for non-occupational accidents if the accident was caused by gross negligence. This means that anyone who performs an act that does not constitute a risk, but is grossly negligent in doing so, must nevertheless reckon with a reduction in benefits. In these cases, however, the daily allowance is only reduced during the first two years after the accident. After that, the insurance company must pay the full benefits again.

Anyone who disregards elementary precautions that any reasonable person in the same situation and under the same circumstances would have followed in order to avoid foreseeable injury in the natural course of events is guilty of gross negligence. The behaviour must cause incomprehension, head-shaking and censure, entail moral condemnation and exceed the limits of what is tolerable.

The Federal Supreme Court assumed gross negligence in a case in which the person involved in an accident jumped from a height of 3 metres into a river at a temperature of 8°C, was swept away by the river and suffered considerable injuries (Federal Supreme Court ruling of 13 April 2015, 8C_873/2014). The Federal Supreme Court also qualified unsecured sitting on the bow of a motorboat as gross negligence (EVG, 6.5.2002, U 195/01). So watch out when taking a trip across Lake Maggiore.

We wish you all a relaxing and above all safe holiday season!