SWITZERLAND Law and Practice Contributed by: Annemarie Lagger and Amina Chammah, Walder Wyss Ltd
sites are fulfilled (see 2.4 Jurisdictional Require- ments for Product Liability Claims ) – before the competent commercial court. Depending on the value in dispute, the proceed - ing is held in a simplified proceeding (for claims not exceeding CHF30,000) or in an ordinary pro - ceeding (for claims above CHF30,000 or claims without monetary value). In Switzerland, cases are decided by judges and the exact composition of a bench depends on local, cantonal law. In simplified proceedings, the court is, however, often composed of a sin - gle judge ( Einzelrichter ), whereas there are usu - ally three or more judges ( Kollegialgericht ) on the panel in ordinary proceedings. There is usually no minimum threshold with regard to the damages that can be claimed. If claims are brought under the Swiss Product Liability Act, however, the claimant must bear a deductible of CHF900 in the case of damage to property. There is no maximum cap on the damages that can be awarded to a claimant. However, a claim - ant can only be compensated for the damages it actually suffered. In other words, Swiss courts do not award so-called punitive damages that exceed the amount of the actual loss. Swiss law does not allow a damaged party to take mon - etary advantage (enrichment) from the event of damage. Accordingly, the claimant must prove each individual damaged position (exact amount) and the causal link between the damaging event (in product liability cases, the defective product) and the respective position.
This holds true for all claims (and the respective requirements) based on tort law and on the Fed - eral Product Liability Act. For claims based on a contract there is one deviation from this rule: the burden of proof for fault is reversed. This means that, if all other requirements are met, it is assumed that the defendant was at fault and it will be upon the defendant (ie, the producer) to prove that this was not the case. From a pro - cedural perspective, it may thus be favourable for an injured person to bring a claim based on contract rather than tort law. For claims based on a sales contract, provided that a direct nexus between the damage and the defect of the prod - uct can be established, fault is not a requirement at all. The same holds true for claims based on the Federal Product Liability Act. The Federal Product Liability Act provides, how - ever, for several exceptions to this strict liability (see 2.1 Product Liability Causes of Action and Sources of Law ). In accordance with the general rule set out above, it is the producer who bears the burden of proof for any fact it wants to rely on in order to exonerate itself from liability. As to the relevant standard of proof: the general threshold is full proof, meaning that the court has to be convinced beyond any reasonable doubt. Where this is not possible (eg, because the defective product has been destroyed or disposed of or the amount of damage suffered cannot reasonably be quantified), the courts may apply a less strict standard. 2.10 Courts in Which Product Liability Claims Are Brought There are no specific or specialised courts for product liability cases in Switzerland. Therefore, such cases generally must be brought before ordinary courts (ie, the competent local court) or – in certain cantons and if the statutory prerequi -
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