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Thomas Kälin
The case is that of a mechanic fitter who was exposed to asbestos in the course of different activities he carried out from 1965 until 1978. The technique of flocking asbestos (“Spritzasbest”) was banned in Switzerland in 1975 and became subject to a general prohibition in 1989. In 2004, Hans Moor was diagnosed with malignant pleural mesothelioma caused by asbestos. He died in 2005. The Swiss courts rejected the claims for damages filed by his wife and two children vis-à-vis the Swiss authorities (art. 20 LRCF), respectively the deceased’s employer on the basis that the claims were time barred and forfeited (art. 127, 130 al. 1 CO).
Principal facts – On appeal against the decision of the cantonal tribunal, the federal court reached, in its decision of 29 January 2010 (ATF 136 II 187), the conclusion that the spouse’s claim was forfeited because the absolute deadline of ten years starting from the date of the wrongful act had expired (art. 20 LRCF). The claims in liability could extinguish irrespective of whether the damage had already occurred. The limitation/ forfeiture period starts to run from the date of the wrongful act, regardless of the date of occurrence of the damage. The Federal Court also dismissed the alleged breach of Article 6 of the Convention: all European States limit in time the possibility to assert civil claims and this limitation cannot be regarded as an infringement of the very substance of the right of access to a tribunal and, therefore, disproportionate, given that the Swiss system provides for the imprescriptibility of the benefits of the ” Caisse nationale suisse d’assurance en cas d’accidents” for victims and their surviving relatives.
In its decision of 16 November 2010 (ATF 137 III 16), the federal tribunal dismissed the recourse filed by the deceased’s daughters against the decision of the cantonal tribunal of Argovia regarding this time the claims against the employor. It considered that the [time limitation] deadline starts as from the exibility of the claim, irrespective of the knowledge of the consequences of the damage, so that the claims were time barred (art. 127 et 130 al. 1 CO). As regards the right to demand repair, the decisive moment is that when the wrongdoer violated the physical integrity of the other party (Art. 46 para. 2 CO by reference art. 99 para. 3 CO). There is no violation of the Convention when a creditor, when he becomes aware of his claim, no longer ha[s] the means to demand the execution.
The wife and two daughters took the case before the European Court of Human Rights, invoking Article 6 § 1 of the Convention (breach of the right of access to a tribunal) due to the forfeiture or time limitation of their claims: the dies a quo of the absolute deadline had started to run before they could objectively become aware of their rights. There was therefore no real opportunity to assert rights before the limitation or forfeiture thereof.
The Court’s decision -The right to a fair trial (Article 6 § 1 of the Convention) requires the existence of effective legal means to claim civil rights. The right of access to a court is subject to limitations and calls by its very nature for regulation by the State, but they may not restrict open access to a litigant in such a way or to such an extent that the litigant’s right is impaired in its very substance. Legal time limitation and forfeiture are among these legitimate restrictions.
The Court referred to the decision handed down in a E?im case, which concerned an applicant wounded during a military conflict, whose claim was rejected by the domestic courts for reasons of prescription whereas the doctors had discovered the pistol bullet lodged in his head years later. It had considered that, in cases of compensation for victims of bodily harm, they should have the right to sue when they were actually able to assess the damage.
As regards the setting of the dies a quo of the ten year time limitation or forfeiture deadline under Swiss law in the case of victims of asbestos exposure, whereas the latency related to the exposure to asbestos may extend over several decades, the Court observed that the absolute period of ten years will always have expired. Any claim for damages will therefore from the outset be destined for failure, as it will be time barred or forfeited before the asbestos victims could objectively become aware of their rights.
The Court also found that the claims of asbestos victims exposed to this substance until its general prohibition in Switzerland in 1989, are all forfeited or time barred under the law in force and that the draft law on the revision of Swiss time limitation provides no equitable solution to the problem. It finally wondered whether the application of the rules on time limitation and forfeiture which may deprive litigants of the opportunity to assert their claims before a tribunal when the diagnostics can only be issued many years after the pathogenic events was proportionate.
The Court held that the fact that a person is unable to know that he/she is suffering from some disease should be taken into account when calculating the time limitation or forfeiture period. In view of the exceptional circumstances of the case, it held that the application of time limitation or forfeiture deadlines restricted access to a tribunal to such an extent that the right of the applicants was reached in its very substance and thus constituted a breach of Article 6 § 1 of the Convention.
The consequences under Swiss law. The Federal Office of Justice may request a re-exmination of the case by the Grand Chamber of the Grand Chamber in Strasbourg within three months [of the notification of the decision of the European Court of Human Rights].
The decision is likely to bear important consequences with regard to the revision of the rules applicable under Swiss law. The current draft of the Federal Council on the reform of the law of time limitation (Message and project relating to the modification of the Code of Obligations [Right of time limitation] of 29 November 2013, FF 2014, 221 et seq.) provides that the claim in damages is time barred after three years from the day when the injured party became aware of the damage and of the person held to repair and, in any case, after ten years from the day when the harmful event occurred or ceased (60 para. 1 CO). The absolute deadline for bodily damage is extended to thirty years and this deadline runs “… from the day when the harmful event occurred or ceased” (art. 60 para. 1 bis CO).
The proposed revision does not deviate from the solution that is actually provided by the law currently in force with respect to the starting point of limitation. If it ensures legal certainty and a certain “legal peace”, the proposed solution is not likely to solve the problem of delayed damages (as the latency period can easily exceed thirty years (see WIDMER, The dies a (quipro) quo in the subsidiary time limitation in REAS 2014, p. 69/71). The solution proposed by Professors Deschenaux and Tercier would be conceivable: according thereto, the “harmful event” (not tort, see art . 60 para. 1 CO) must match the “violation of the rights of the victim”, so that the time limitation should start to run “as soon as the injury suffered is revealed in an objective way for the first time” (see ATF 106 II 134 ; WIDMER, p. 69 sv.; see also HUSMANN and ALIOTTA, Die Regelung der Verjährungsproblematik von Schadenersatzforderungen für sogenannte Spätschäden, HAVE 2014, p. 89/91). This solution seems all the more appropriate as “the fact that one does not know the damage cannot be seen as an insurmountable and non faulty obstacle to act in a timely manner” (ATF 136 II 187 consid. 8.1; see WIDMER, p. 72).
The question of whether a right may be time barred before its holder is able to become aware of his/her right also arises in relation to the recourse of the sought obligor against his/her co-obligors (Article 51 CO). The claim of the injured party against a co-obligor (not aimed at by the [main] claim) can be time barred by the absolute time limitation deadline at the very moment when the sought co-obligor is sued by the injured person (or even before: the injured party sues one of the co-obligors e.g. twenty years after the harmful event occurred, after having interrupted the time limitation deadlines with regard to that very obligor pursuant to the ordinary rules).The Federal Court resolved the issue, but probably in part only in a case regarding the relationship between a time barred “main” claim of the injured party against the co-obligor and an internal recourse, subject to the existence of a co-obligor, which was born upon payment by the sought co-obligor whereby it considered that the time limitation of the rights of the injured party cannot be opposed to the holder of the internal recourse (“finally time limitation, respectively the absence of time limitation of the claim of the injured party against the co-obligor subject to an internal recourse claim may not be opposed to the holder of the internal recourse claim, respectively benefit him, “ATF 133 III 6/27 c. 5.3.4, p. 27; ATF 130 III 362, c. 5.2 and 5.3).
