Decision of the Swiss Federal Supreme Court (8C_762/2014): Dirt biking is deemed to be an "absolute risk"
In 2014 a 29 years old road builder crashed in the “DirtCastel” of the “HammerPark” (a free style facility [located under a motorway bridge in Lenzburg, Switzerland] co-funded by a local Rotary Club) with his dirt bike and suffered a broken bone in his left wrist.
SUVA, the Swiss compulsory accident insurer, covered the cost of the medical treatment of the injured dirt biker, but reduced the dirt biker’s claim to receive daily allowance benefits in application of article 39 UVG (Federal act on accident insurance dated March 20, 1981 ) and Article 50 UVV (Ordinance on accident insurance dated December 20, 1982) by 50 percent, since he exposed himself to a “great danger” (…) “without the precautions to take, or to be able to meet that restrict the risk to a reasonable level“.
The dirt biker filed a formal objection to the Cantonal Court of the Canton of Lucerne against SUVA’s reduction of his claim to receive daily allowance benefits. On April 4, 2014 the cantonal court upheld the dirt biker’s objection and argued that he (1) was a hobby (and not a race) dirt biker, (2) took all precautionary measures practicable to prevent from injuries, (3) adhered to the applicable rules in the fun park “Hammer Park” and (4) wore protection equipment. Furthermore, the cantonal court of the canton of Lucerne argued in a general way that dirt biking was comparable with skateboard riding or snowboarding sports, which, if practiced as a hobby only and without forcing particular acrobatic tricks, was no great danger to life and limb.
Upon SUVA’s appeal against the decision of the Cantonal Court of the Canton of Lucerne the Swiss Federal Supreme Court had a diverging opinion on the case and the potential dangers of dirt biking as a sport in general and, therefore, confirmed the disposition of SUVA to cut the daily allowance benefits by 50 percent and overruled the decision of the Cantonal Court of the Canton of Lucerne dated April 4, 2014.
In summary, the Swiss Federal Supreme Court argued that „even dirt biking as a hobby implies a large crash and injury risk. In practice, this risk cannot be reduced to a reasonable level, since the performance of spectacular tricks is the main purpose of this sport and these tricks are solely determined by the performing athlete.
Dirt biking is different from driving in a halfpipe due to the possible consequences of a crash and the fact that the athlete is additionally put at risk by the metal parts of his bike. If the considerable risk potential cannot be reduced to a reasonable level, dirt biking is deemed to be an absolute risk, unless performed on terrain or in bike parks where real dirt jumps are not possible.
The insured person has performed his dirt jumps which caused the accident in a bike park specifically made for that purpose. This bike park was designed to perform dirt jumps with a risk potential which cannot be reduced to a reasonable level. Therefore, he exposed himself to an absolute risk.“
REFERENCE:
DQS?