Damages and moral prejudice

Under Swiss law of obligations, compensation for harm caused to another party rests on a fundamental distinction between two categories of damage. On the one hand, patrimonial damage, compensated by way of damages (art. 41-46 CO). On the other hand, non-material damage — physical and psychological suffering, infringements of personality — compensated under the head of moral prejudice (art. 47-49 CO). These two regimes, distinct in nature, may be cumulated when a single event causes harm of both types.

Damages (art. 41-44 CO)

Art. 41 para. 1 CO lays down the general principle of tortious civil liability: a person who unlawfully causes damage to another, whether intentionally or through negligence, is obliged to make reparation. Four conditions must be met:

• An unlawful act (breach of a legal rule or a general duty of care)
• Damage (impairment of the victim's assets)
• A natural and adequate causal link between the act and the damage
• Fault (intentional or negligent)

In contractual matters, liability for non-performance or defective performance is governed by art. 97 et seq. CO, but the principles for calculating damage are largely the same.

The concept of patrimonial damage

Patrimonial damage is defined as the difference between the injured party's current assets and the assets the party would have had had the damaging event not occurred. This so-called difference approach leads to a distinction between two components:

• Actual damage (damnum emergens): direct impoverishment of assets — medical expenses, repairs, replacement costs
• Loss of earnings (lucrum cessans): the profit the injured party would have made had the damaging act not occurred — loss of professional income, loss of clientele, impairment of economic prospects

These two heads may be cumulated and must each be established separately. The injured party may claim full compensation for the harm suffered, subject to the rules on reduction.

The mode of reparation (art. 43 CO)

Art. 43 para. 1 CO grants the court broad discretion to determine the mode and extent of reparation. In practice, two forms of reparation are available:

• Reparation in kind (restitutio in integrum): restoration of the object to its former condition, replacement, retraction of a defamatory publication. This form is preferred where possible and appropriate.
• Monetary reparation: payment of a sum of money corresponding to the harm suffered. This is the most common form in practice.

For ongoing damage — particularly in cases of permanent incapacity for work — the court may award a periodic payment rather than a lump sum, where this solution is better suited to the injured party's concrete situation (art. 43 para. 2 CO).

Proof of damage (art. 42 CO)

The burden of proof lies with the injured party, who must establish the existence and extent of the damage (art. 42 para. 1 CO). However, where the exact amount of the damage cannot be established with certainty — which is frequent for loss of earnings or future damage —, art. 42 para. 2 CO provides that the court shall assess it equitably, having regard to the ordinary course of events and the measures taken by the injured party.

This rule constitutes a relaxation of the burden of proof: the injured party must demonstrate the existence of the damage on a balance of probabilities and provide the relevant assessment elements, without being required to strictly prove the quantum. The court then has broad estimating power, which it exercises taking into account all relevant circumstances.

Reduction for contributory fault (art. 44 CO)

Art. 44 para. 1 CO allows the court to reduce or waive the obligation to pay compensation if the injured party consented to the damage or if facts for which the injured party is responsible contributed to the creation or aggravation of the damage. This provision — which enshrines the principle of contributory fault — calls for several clarifications:

• Reduction is a judicial discretion, not an obligation: the court freely assesses the respective seriousness of the faults
• The proportion of reduction is fixed according to the causal contribution and seriousness of the injured party's fault
• Total elimination of the indemnity is reserved for cases where the injured party's fault is predominant or where the party expressly consented to the risk
• Art. 44 para. 2 CO also provides for a possible reduction where the obligation of reparation would cause disproportionate financial hardship for the liable party, having regard to that party's resources

Damage in cases of death (art. 45 CO)

Where an unlawful act causes the death of a person, art. 45 CO determines the recoverable heads of damage. Three categories are distinguished:

• Funeral expenses: burial, ceremony costs and related expenditure borne by the deceased's relatives
• Medical expenses and loss of earnings between the damaging event and death: where death is preceded by a period of treatment, the expenses incurred during that period and the loss of income suffered are recoverable
• Loss of support (art. 45 para. 3 CO): persons whom the deceased was legally obliged to support or whom the deceased regularly supported are entitled to compensation for the loss of financial support. The calculation takes into account the probable duration of support and the needs of the entitled persons

Damage in cases of bodily injury (art. 46 CO)

In cases of bodily injury without death, art. 46 CO provides for compensation of the following heads:

• Medical and paramedical expenses: hospitalisation, consultations, medication, rehabilitation, medical devices, home or vehicle adaptations
• Temporary incapacity for work: loss of income during the period of incapacity, calculated on the basis of the usual net salary
• Permanent incapacity for work (disability): future economic damage resulting from a permanent reduction in earning capacity. The calculation generally involves capitalisation based on a medically established rate of incapacity and a professional life expectancy
• Impairment of economic prospects: damage resulting from limitation of the injured party's professional prospects, distinct from quantifiable loss of earnings

Moral prejudice (art. 47-49 CO)

Alongside damages compensating for patrimonial harm, Swiss law recognises the right to an indemnity for moral prejudice where the injured party has suffered non-material harm: physical pain, psychological suffering, loss of enjoyment of life, impairment of personal integrity. Moral prejudice is not intended to enrich the victim, but to compensate, insofar as possible, for suffering that money cannot erase.

The law provides two distinct regimes: one applicable to bodily injury and death (art. 47 CO), the other to infringements of personality (art. 49 CO).

Moral prejudice in cases of bodily injury or death (art. 47 CO)

Art. 47 CO provides that, in cases of death or bodily injury, the court may, taking into account the particular circumstances, award the victim or the relatives a fair indemnity by way of moral reparation. Several points are worth noting:

• The award is a judicial discretion (the court may), not an automatic right
• Particular circumstances must justify it: seriousness of the suffering, lasting nature of the after-effects, loss of a loved one
• In cases of death, close relatives (spouse, children, parents) may also claim an indemnity for their own suffering
• The indemnity is fixed equitably according to the specific circumstances, without any predefined statutory scale

Moral prejudice in cases of infringement of personality (art. 49 CO)

Art. 49 CO confers the right to an indemnity for moral prejudice in cases of unlawful infringement of personality, subject to two cumulative conditions:

• The seriousness of the infringement must justify it: the infringement must exceed the threshold of ordinary inconveniences of social life. Covered in particular are infringements of honour, private life, image, identity or personal freedom.
• The wrongdoer has not otherwise given satisfaction to the injured party: if another protective measure (retraction of statements, publication of a judgment, withdrawal of a publication) has already satisfied the injured party, monetary compensation may be excluded or reduced

Art. 49 para. 2 CO specifies that the court may, instead of or in addition to a monetary indemnity, order other measures suited to giving satisfaction to the injured party (for example, publication of the judgment at the wrongdoer's expense).

Examples of heads of damage and moral prejudice

Cumulation of both heads of damage

Damages and moral prejudice compensate for harm of a different nature and may be fully cumulated where a single event causes both economic loss and non-material suffering. This situation is typical:

• In cases of serious bodily injury: the victim obtains medical expenses and loss of earnings (patrimonial damage) as well as an indemnity for suffering and impairment of quality of life (moral prejudice)
• In cases of death: the heirs may claim economic losses (loss of support, funeral expenses) and relatives an indemnity for their own grief
• In cases of infringement of personality that has also caused commercial harm: for example, defamation entailing a loss of clientele (patrimonial damage) and an infringement of honour (moral prejudice)

Compensatory interest

Under Swiss law, a claim for damages is a debt of value: it bears interest from the day the damage occurred and not from the date of a formal notice. This principle, established by the case law of the Federal Supreme Court, is intended to compensate for the loss suffered by the injured party as a result of the unavailability of capital during the period between the damage and payment.

The applicable interest rate is in principle 5% per annum (art. 104 para. 1 CO). This interest runs until effective payment of the indemnity and applies both to damages and to the indemnity for moral prejudice.

Limitation (art. 60 CO)

Actions for damages and moral prejudice are subject to the following limitation periods:

• Relative period of 3 years: runs from the day the injured party became aware of the damage and the identity of the liable person (art. 60 para. 1 CO)
• Absolute period of 10 years: runs from the day the damaging event occurred or ceased, irrespective of the injured party's knowledge (art. 60 para. 1 CO)
• Absolute period of 20 years for bodily injury: since the revision of limitation law that entered into force on 1 January 2020, actions for compensation for bodily injury or death are time-barred after 20 years from the damaging event (art. 60 para. 1bis CO)
• Where the damaging act also constitutes a criminal offence, the criminal limitation period applies if it is longer (art. 60 para. 2 CO)

Compliance with these periods is mandatory: an action brought out of time will be dismissed if the defendant raises the defence of limitation. Consulting a lawyer promptly after the damage occurs is essential to preserve one's rights. For more information on limitation rules, see our page on limitation of claims in Switzerland.

For any question relating to civil liability in Switzerland or personality protection, PBM Avocats offers legal advice based on in-depth knowledge of Swiss civil law.

Frequently asked questions on damages and moral prejudice