- Introduction: The practice of alpinism and its general regulations
- Private law: civil liability
- The contractual responsibility of the mountain guide and the tour leader
- Tort liability of the de facto leader
- Criminal Law: Tort liability
- Offences committed through negligence
- Definition of negligence
- The position of guarantor
- Common/serious assault through negligence
- Homicide through negligence
- The specific responsibility of the guide and the tour leader: duty of guarantor resulting from the agency contract
- The specific liability of the de facto leader: duty of guarantor resulting from the reckless undertaking
- Social Insurance Law: Reduction and Denial of Benefits
- Specific issue: Safer access to the hut
Caille, Frédéric, Le guide comme professionnel de l’alpinisme : perception et enjeux du traitement judiciaire de la responsabilité dans le domaine des sports de montagne, in : Hoinian Olivier/Defrance Jacques (édits.), Deux siècles d’alpinisme européens, origine et mutations des activités de grimpe, Paris 2002, pp. 369-384; Carron, Maxence, Le mandat de durée, Genève - Zurich - Bâle 2018 ; Cassani, Ursula/Villard, Katia, in : Moreillon, Laurent et al. (édits), Commentaire romand Code pénal I, 2e édition, 2021 ; Dupont, Anne-Sylvie/Longchamp, Guy, III. L’Etat et le sport / A. Droit privé / L’accident sportif et l’assurance-accidents sociale, in: Rigozzi, Antonio/Sprumont, Dominique/Hafner, Yann (édits.), citius, altius, fortius, mélanges en l'honneur de Denis Oswald , Bâle, Neuchâtel 2012 ; Frésard-Fellay, Ghislain/Kahil-Wolff, Bettina/Perrenoud, Stéphanie, Droit suisse de la sécurité sociale, volume II, Berne 2015 ; Hurtado Pozo, José/Illànez, Federico, in : Macaluso, Alain/Moreillon, Laurent/Queloz, Nicolas (édits), Commentaire romand code pénal II, 1ère édition, 2017 ; Ionta, David, Accidents de sport et entreprises téméraires, reas 2020, p. 196 ; Rémy, Marc, in : Macaluso Alain/Moreillon Laurent/Queloz Nicolas (édits), Commentaire romand code pénal II, 1ère édition, 2017 ; Tercier, Pierre/Pichonnaz, Pascal, Le droit des obligations, 5e édition, Genève 2012 ; Tercier, Pierre/Bieri, Laurent/Carron, Blaise, Les contrats spéciaux, 5e édition, Genève Zurich Bâle 2016 ; Villard, Katia/Corboz, Bernard, in : Moreillon, Laurent et al. (édits), Commentaire romand Code pénal I, 2e édition, 2021 ; Werro, Franz/Perritaz, Vincent, in : Thevenoz, Luc/Werro, Franz (édits), Commentaire romand, Code des obligations I – art. 1-252 CO , 3e édition, Bâle 2021.
I. Introduction: The practice of alpinism and its general regulations
The popularity of alpinism has increased dramatically in recent years, and has expanded to a much wider public. The feat of climbing famous peaks such as the Matterhorn and Mont Blanc is increasingly coveted, especially by people lacking experience and/or focused on the performance aspect. Inevitably, the number of accidents increases, which leads to more and more regulation (Caille, p. 8 and 11).
Faced with this scourge, our French neighbors have decided in 2019 to impose the need for a permit to climb Mont Blanc. Although this permit requirement has not yet been implemented in Switzerland, the question remains open to this day, especially for the Matterhorn (article de la RTS du 07.08.2019 : Les décès d'alpinistes reposent la question de l'accès aux sommets).
As far as specific alpinism areas are concerned, the State may restrict access to certain alpine territories, for reasons of protection of the fauna or of nature in general. Indeed, wild animals cannot always avoid encounters with humans. It is therefore necessary to channel human activities, especially in winter, in order to leave sufficiently large areas where animals can take refuge and feed. Human activity can also affect nature itself, which sometimes needs to be protected.
Protection measures are taken at the level of land use, by the establishment of protection zones (quiet zones; art. 7 al. 4 of the Federal Law on Hunting and the Protection of Wild Mammals and Birds [loi fédérale sur la chasse et la protection des mammifères et oiseaux sauvages ; Loi sur la chasse ; LChP; RS 922.0]). They are known by a variety of names: tranquility and wildlife protection areas, nature reserves, private protection sites, etc. Each of these areas is governed by a set of rules and regulations. Each of these areas is governed by specific rules (quiet zones).
Access to protected areas may be prohibited altogether, or restricted to certain times of the year. By prior request to the competent authority, it is possible to obtain derogatory authorizations, under certain conditions. The municipal authorities, responsible for the development of their territory, are always in a position to give the first information. It is therefore strongly recommended to contact them beforehand in case of doubt.
With regard specifically to alpinists as such, the federal law on mountain guides and organizers of other high-risk activities requires mountain guides to hold a certificate and a state authorization (art. 4 et seq. of the federal act on mountain guides and organisers of other high-risk activities [loi fédérale sur les guides de montagne et les organisateurs d’autres activités à risqué; LRisque; RS 935.91]), since they work as professionals. The delivery of the authorization allows the State to verify the capacities, in particular in alpinism, of each guide. Through this mechanism, the State has the right to control the professional alpinism practitioners.
This is not the case for tour leaders, who are not subject to the legislation on mountain guides and organizers of other risky activities (art. 1 a contrario LRrisque). Thus, it is not the state rules that regulate the capacity to practice as a tour leader but the rules emanating from private organizations, such as the internal rules of the alpine club. As a reminder, these rules require tour leaders to follow a basic training as well as advanced courses. The State has no right to control the practice of the Alpine Club's tour leaders. It should be noted here that because of his/her less advanced training, the tour leader does not have the right to organize an outing whose level of difficulty would require the assistance of a mountain guide (CAS scales of difficulty).
As for the de facto leader, and as we will see later, it is the most experienced person in the group who occupies this position in principle. No training is therefore required, or even required; anyone can find himself in this position given his level of experience (Tercier/Bieri/Carron, n. 4378).
II. Private law: civil liability
In the event of improper performance of a contract, civil law allows the injured party to obtain damages, or even compensation for non-material damage. The person who has not performed the contract properly must pay this compensation to the injured party, as long as he/she is held responsible for the damage caused (art. 97 et seq. CO).
We will examine below the position in which the mountain guide, the tour leader and the de facto leader find themselves when they lead a tour, as well as the obligations and responsibility that arise from this.
B. The contractual responsibility of the mountain guide and the tour leader
1. The agency contract
Both mountain guides and tour leaders are bound to the participants of the tour by an agency contract (Carron, p. 55). Since the contract of employment is a common basis, we will first recall the main features of this type of contract before looking at the specific responsibilities of the mountain guide and the tour leader.
The agency contract is governed by art. 394 et seq. CO. The conclusion of the agency contract is not subject to any special form and can even be tacit (ATF 110 II 360 = JdT 1985 I 130, 113 II 522 = JdT 1988 I 354, RSJ 1990 143 ss; Tercier/Pichonnaz, n. 192). In alpinism, the conclusion of the contract is very often done orally (for mountain guides, see art. 2 of the general conditions of mountain guides for Switzerland; specifically for the alpine club, the registration for a tour through the website is considered as a request for the conclusion of the contract. By selecting the candidate, the tour leader accepts the application, which leads to the conclusion of the contract, cf. art. 395 CC). This contract can be concluded for a fee - in the case of the mountain guide - or (partially) free of charge - in the case of the Alpine Club leader (art. 394 al. 3 CO).
The agency contract is a contract by which the agent (the mountain guide or the tour leader) obliges himself to render services on behalf of the principal, in this case the client or the participant (art. 394 CO; Tercier/Pichonnaz, n. 1000 et seq.). The agency contract does not imply an obligation of result, but only an obligation of means (ATF 134 III 361 consid. 6; ATF 127 III 357 consid. 1b, Jdt 2002 I 192). Thus, if the mountain guide or the tour leader has shown all the diligence that could be expected of him/her, but the expected result is not achieved, he/she will be deemed to have correctly executed his/her obligations and cannot be held responsible for any damage (Tercier/Bieri/Carron, n. 4317).
To illustrate this, we can cite the case of a tour whose objective is to reach a summit. The mountain guide, respectively the tour leader, will have to do everything possible to reach this summit, but will not be obliged to bring the group to the summit if this would be contrary to his duty of care.
2. The duty of care
The main obligation of the mountain guide or the tour leader is to respect the duty of care in the execution of the agency contract that has been entrusted to him/her (art. 398 al. 2 CO). The duty of care is determined by several rules (which complement each other (ATF 133 IV 138, consid. 5.1; TF 6B_1036/2019 of 16 January 2020, consid. 2.2; TF 6B_738/2012 of 18 July 2013, consid. 2.3.1; CR-Villard/Corboz, art. 12 CP n. 145).
In the first place, it is necessary to look in the law if there are special norms prescribing a certain behavior, that is to say, in the case of alpinism, rules enacted with a view to ensuring safety and avoiding accidents (ATF 135 IV 56, recital 2.1; ATF 134 IV 255 recital 4.2.3; TF 6b_364/2020; 6B_ 365/2020 and 6B_380/2020 of June 26, 2020; 6B_ 122/2019 of September 17, 2019). The duty of care is then completed, respectively defined, by the safety standards enacted by private or semi-public bodies, insofar as these rules are generally recognized (ATF 136 IV 97, recital 6.2.2; 6B_ 1036/2019 of January 16, 2020). Typically, these are the rules and directives adopted by the Swiss mountain guides association or by the alpine club. Finally, the duty of care is specified by principles of behavior, even unwritten, which are generally recognized. These are the rules of the art (ATF 6B_1008/2016 of November 22, 2017, consid. 5.3.1).
Once the applicable rules have been determined, it is necessary to take into account all the concrete circumstances in order to determine the degree of diligence to which the guide or the tour leader is subject (Tercier/Bieri/Carron, n. 4434; ATF 133 III 121 c. 3.1). This degree of diligence will therefore depend on all the circumstances of the concrete case, in particular on the nature of the planned activities, the difficulty of the proposed tour, the aptitude of the participants as well as the technical knowledge and abilities of the mountain guide or the tour leader (ATF 117 III 563 c. 2a ; ATF 134 III 534 c. 3.2.2 ; ATF 127 III 357 c. 1c). Given his/her higher level of training and skills, the mountain guide will be subject to a higher degree of diligence than the tour leader, whose training is much less extensive.
As we will see below, the culpable violation of the duty of care engages the civil liability of the mountain guide, respectively the tour leader (art. 398 CO).
3. The responsibility
a. In general
The rules on civil liability do not aim to punish the person concerned but to compensate the injured party for the damage caused to him/her (CR-Werro/Perritaz, art. 41 CO n. 1 et seq.). The mountain guide or the tour leader is liable for the damage he/she causes to the participant, whether intentionally or through negligence (art. 321 e para. 1 CO, by reference to art. 398 para. 1 CO, which provides that the liability of the agent is subject, in general, to the same rules as those of the employee in the employment relationship).
In order for the guide or leader to be held responsible, the following four conditions must be met:
- Damage: the participant in the tour must prove that he/she has suffered damage (ATF 132 III 359 c. 4, JdT 2006 I 295). This can be physical damage (an injury for example) and/or material damage (broken ice axe for example) (moral damage can also be considered as damage, as long as it is of sufficient gravity, TF 4A_227/2007 of September 26, 2007, consid. 3.7.2).
- A breach of contract (breach of duty of care): the participant must prove that the guide, respectively the tour leader has violated one or more of his contractual obligations (TF 4A_577/2015 of 1er March 2016, consid. 4). Since the contract of employment does not contain an obligation of result but only of means, the absence or failure of a result does not constitute, by itself, proof of a breach of contract. The injured party must therefore prove that the guide or the tour leader has violated his/her duty of care (ATF 127 III 357 consid. 1b, JdT 2002 I 192).
- Fault: This last criterion requires that the breach of contract be attributable to the guide or the tour leader. In other words, a fault, either intentional or negligent, must have been committed. This fault does not have to be proven by the participant as it is presumed, in particular when a safety rule has not been respected. . It is therefore up to the guide or the tour leader to prove that the fault is not attributable to him/her (ATF 127 III 357 consid. 1b, JdT 2002 I 192).
- A causal relationship: the injured participant must still establish that there is a causal link (natural and adequate) between the faulty breach of contract and the damage he/she claims (TF 4A_577/2015 of 1er March 2016, consid. 4). In other words, it is necessary to prove that the damage caused is the result of the fault of the guide, respectively the tour leader.
If the four conditions mentioned above are met, the guide, respectively the tour leader, will have to repair the damage caused to one or more participants.
However, the law provides for the possibility of reducing or even cancelling the compensation due to the victim in the event of concomitant fault (art. 97 CO). The term "contributory negligence" refers to the failure of the injured party to take the measures that could be expected of him and that would have prevented the occurrence or aggravation of the damage. Concurrent fault presupposes that the injured party can be blamed for blameworthy conduct, in particular a lack of attention or a dangerous attitude, because he/she did not make the efforts of intelligence or will that could be expected of him in the concrete circumstances (TF 4A_119/218 of January 7, 2019, recital 5). As an example, we can cite the case of the victim who does not listen to the instructions of the mountain guide or the tour leader and takes a different route than the one indicated.
b. The specific responsibility of the mountain guide
As we have seen above, it is up to the injured party to prove that there has been a breach of duty of care. In order not to be held liable, the guide must prove that he/she has not violated his/her duty of care. Both the proof and the duty of care are therefore central.
In order to determine whether the mountain guide has acted diligently, it is first necessary to clarify the content of this duty. To do this, it is necessary to refer to the applicable regulations. These rules define the training to be followed in order to be able to work as a guide, as well as the appropriate behavior and the safety rules for alpinism. In a second step, it will be necessary to verify if the theoretical rules have been correctly applied in the concrete case, taking into account all the circumstances.
The mountain guide cannot practice as such without obtaining a federal patent in the matter as well as an authorization to practice (art. 3 LRisque). Obtaining the federal patent ensures a solid knowledge of the mountain, justifying a high duty of care (art. 3 of the general conditions for mountain guides in Switzerland). As part of his/her training, the guide learns the safety rules of alpinism. He/she is obliged to comply with these rules in the practice of his/her profession. The professional associations, such as the Swiss Mountain Guides Association, also promulgate rules on the practice of alpinism that the guide is obliged to follow, under penalty of violating his/her duty of care.
For example, the Risk Act mentions a general duty of care, as well as certain safety rules, which clarify the duty of care of the mountain guide (art. 2 Risk Act). Thus, the law provides in a general way that " anyone who offers an activity subject to this law is obliged to preserve the life and health of the participants by taking the measures that experience dictates, that the technique allows and that the situation requires". This general duty of care includes the following obligations:
- An increased duty to inform: the guide must explain to his clients the particular risks that may result from the practice of the chosen activity (letter a);
- A duty to check the clients' abilities to practice the chosen activity (letter b);
- A duty to verify equipment (letter c);
- A duty to verify the suitability of the activity with respect to weather conditions, particularly snow conditions (letter d);
- A duty to verify the number of accompanying persons, taking into account the degree of difficulty of the activity and its risks (letter f).
Once the applicable rules have been determined, it is necessary to examine all the circumstances of the specific case in order to determine whether the guide has correctly applied the applicable rules and whether he/she has violated his/her duty of care. The age of the mountain guide, his/her experience, the difficulty of the tour, the weather conditions, the level of the participants, etc. are all taken into account. If the mountain guide is found to have violated his/her duty of care, he/she will be obliged to pay compensation for the damage caused (a wrongful act on the part of the guide may also have consequences for the authorization required to practice the activity, cf. art. 3 LRisque, in connection with art. 8 of the ordinance on mountain guides and organizers of other high-risk activities [ORisque; RS 935.911]).
For example, a mountain guide would be in breach of his/her duty of care and could be held liable for damage caused if he/she takes more clients than is customary for a given peak, does not inform clients of the precise route to take in a dangerous passage, or does not pay sufficient attention to a client who is unsure of his/her footing in a difficult passage.
c. The specific responsibility of the tour leader
As with the guide, the duty of care of a tour leader is determined firstly by the regulations applicable to him/her. Secondly, it is necessary to verify whether these theoretical rules have been correctly applied in the concrete case, taking into account all the circumstances.
As mentioned above, the tour leader is not subject to the law on mountain guides and organizers of other risky activities. Therefore, the regulations of the alpine club should be referred to first. According to these regulations, the tour leader must follow a basic training course which allows him/her to take on this function. These courses allow to validate a certain level of knowledge and know-how in the mountains. The tour leader must also attend further training courses at regular intervals in order to keep his/her knowledge up to date (Regulations concerning the training and further training obligations of SAC tour leaders).
When the tour leader works as such, he/she must apply the safety rules of alpinism that he/she has learned during his/her training. Some of these rules are reminded by the Alpine Club by means of guidelines accessible to all (memory aid). These rules clarify the duty of care of the tour leader.
As an example, we can cite the guidelines for tour planning, which state the following (CAS planning):
- A duty to choose a tour of accessible level for the members of the alpine club and whose difficulty does not exceed the abilities of the tour leader;
- An obligation to check the level of each participant;
- A duty to consult the weather and avalanche bulletins;
- In case of cancellation of the initially planned itinerary, an obligation to inform the competent body and to ensure that the selected participants also have a sufficient level to participate in the alternative tour, which must not be more difficult than the initial itinerary ;
- A duty of information throughout the tour, allowing participants to obtain adequate instructions; the youngest participants, respectively the less experienced, require special attention;
- A prohibition for the tour leader, as well as the participants, to leave the tour before everyone has arrived.
The tour leader also has an implicit duty to make the participants responsible. The duty of the tour leader to inform and verify does not relieve the participant of all responsibility. On the contrary, it is up to the participant to inform the tour leader spontaneously of certain particular circumstances, which the tour leader is not able to detect during his/her usual check. These include, for example, the physical and mental health of the participant or the functional state of his/her own equipment. If the participant does not comply with this duty to inform and damage is caused to him/her, he/she can be held responsible for the concomitant fault.
As with the mountain guide, all the circumstances of the specific case must be taken into account in order to determine whether the tour leader has violated his/her duty of care. For example, the difficulty of the tour, the level of the participants, the weather conditions, the experience and the age of the tour leader will be taken into account. Since the tour leader has been trained to a much lower level than the mountain guide and does not act in a professional manner, his/her level of care will be lower than that of a mountain guide (as a reminder, the Risk Act is only applicable to mountain guides, excluding tour leaders in their practice within the Alpine club [art. 1 al. 2 Risk Act]).
If the tour leader violates his/her duty of care, he/she will be obliged to pay compensation for the damage caused. The following examples can be cited as examples of conduct by the tour leader which may give rise to liability: accepting a participant who has neither suitable shoes nor warm clothing for the conditions of the planned tour, admitting a participant to a glacier tour when he/she has neither crampon nor ice axe, failing to insure a participant during an abseil, neglecting to check the ropes, failing to check the functioning of the avalanche transceivers (Les Alpes 9/1996, p. 25), neglecting elementary precautions, such as the use of the avalanche transceiver, and failing to take the necessary precautions to avoid the risk of injury. 25), neglecting basic precautions such as roping up participants in dangerous places.
d. Excursus: the specific responsibility of the assistant tour leader
The deputy supports the tour leader in his/her work and acts as an auxiliary (art. 101 CO). As a rule, the tour leader is responsible for the actions of his/her deputy, in particular for any lack of diligence. The tour leader must therefore choose his/her assistant carefully and check that he/she has the necessary experience to hold this position in view of the difficulty of the chosen tour.
Since the Chief of Course is responsible for the actions of his/her assistant, the latter will be charged with the same degree of care as the Chief of Course. However, there is an exception to this principle: if the deputy has more experience than the tour leader, this additional experience will be attributed to the tour leader and will increase his/her degree of diligence accordingly (ATF 130 III 591, consid. 5.5.4, JdT 2006 I 131).
C. Tort liability of the de facto leader
When there are differences in ability and experience between the participants in a alpinism tour, the most experienced person is obliged, as far as possible, to ward off the realization of danger on the less experienced persons. This person then occupies the position of de facto leader. A protective relationship can also exist between partners of equal strength and experience. In this case, they must assume a mutual duty to help each other and simultaneously occupy the position of the de facto leader (CR-Cassani/Villard, art. 11 CP n. 39).
The case of the de facto leader arises when a mountain guide uses his/her skills and knowledge with a group of people outside the professional framework. The same is true for the tour leader who practices outside the framework of the alpine club. Most of the time it is an outing with friends. Both the guide and the leader will usually have more knowledge and experience than the rest of the group. Of course, this can also happen when members of the Alpine Club who are not tour leaders decide to organize an alpine tour among themselves. The most experienced member(s) of the group will take the position of de facto leader. He/she will therefore implicitly assume the responsibility of the group, i.e. the role of the de facto leader, and will be required to act with a certain diligence.
The case of the de facto leader can also arise when a mountain guide or tour leader participates in a tour and has more experience than the official tour leader. In this type of situation, the entire responsibility for the tour will not rest with the more experienced mountain guide or tour leader, but will be shared with the official tour leader. A higher degree of care than that of the other participants will apply to the mountain guide or the more experienced leader.
Unlike mountain guides and tour leaders, the de facto leader is not bound by a contractual relationship with the participants. Indeed, the de facto leader has not been mandated to lead a tour but occupies this position by act of convenience, and often in an implicit manner. However, a person who acts out of convenience is not contractually liable for lack of a contract, but is liable in tort according to art. 41 CO (Tercier/Bieri/Carron, n. 4378).
If the leader causes damage to a member of the group in a wrongful manner, he/she is obliged to compensate that member (art. 41 CO). In order for the de facto leader to be liable in tort, four cumulative conditions must be met:
- Damage: the damage may be physical and/or material and must be proven by the injured party (art. 42 CO).
- Fault: this criterion requires that the de facto leader has committed a breach of duty, i.e. that he/she has been negligent, by violating his duty of care. As previously stated, the degree of diligence is to be judged in light of the concrete circumstances (CR-Werro/Perritaz, art. 41 CO n. 56 et seq.).
- A causal relationship: between the damage and the fault.
- Unlawfulness: There must be no justification for the unlawfulness of the breach committed by the principal (ATF 132 II 305, recital 4.1, SJ 2000 i 549; ATF 123 II 577, recital 4), such as the consent of the injured party, self-defence, etc. (cf. in particular art. 52 CO, art. 28 para. 2 CC).
If these four conditions are met, the ringleader will be liable for the damage caused and will have to compensate the victim.
As in the case of contractual liability, however, the law provides for the possibility of reducing or even cancelling the compensation due to the victim if the injured party has consented to the damage, or if he/she has contributed to creating or increasing the damage (art. 44 CO). This is known as concomitant fault on the part of the injured party. This is the case, for example, when the injured party fails to take reasonable measures, which could be expected of him in view of the concrete circumstances, in order to counteract the occurrence or aggravation of the damage (CR-Werro/Perritaz, art. 44 CO n. 12). This is typically the case when the participant fails to inform the tour leader of a particular situation, which the latter was not supposed to discover during his usual checks and controls.
III. Criminal Law: Tort liability
In alpinism, the main offences encountered are serious personal injuries committed by negligence, common assault committed by negligence (art. 125 CP) as well as homicide committed by negligence (art. 117 CP). Both serious assault and homicide are offences prosecuted ex officio as they are considered serious offences (art. 117 and 125 para. 2 CP). Common assault, on the other hand, is only prosecuted on complaint.
In the context of this contribution, we assume that the author did not commit the offence intentionally. For this reason, only negligent commission will be considered and, in particular, only the above-mentioned offences will be discussed below.
B. Offences committed through negligence
1. Definition of negligence
For negligence to be punishable, the offender must commit culpable short-sightedness, leading to the crime itself. This occurs when the offender did not realize the consequences of his act, because he/she did not take the precautions required by the circumstances and his personal situation (art. 12 al. 3 CP). For negligence to be punishable, two conditions must be met.
In the first place, a violation of the rules of prudence must have been committed. In alpinism, this duty of care is confused with the duty of diligence (Villard/Corboz, art. 12 CP n. 133 et seq.). Thus, it is necessary first to determine the duty of care of the offender, and then to ask whether a reasonable person, in the same situation and with the same abilities as the offender, could foresee, in general terms, the course of events and, if necessary, what measures this person could take, or should have taken, to avoid the occurrence of the result, taking into account the knowledge he/she could have had at the time of the facts (ATF 134 IV 255, recital 4.2.3). The conduct of third parties, such as the participants in the tour, must also be taken into account when examining the concrete circumstances, since they too are bound by a certain duty of care (BGE 143 IV 138, para. 2.1 et seq.; BGE 143 IV 500, para. 1.2.4).
Secondly, the violation must have been committed in a culpable manner, i.e. the offender must have been guilty of inattention or a lack of effort, taking into account his personal circumstances (ATF 134 IV 255 consid. 4.2.3; CR-Villard/Corboz, art. 12 CP n. 205).
2. The position of guarantor
Negligence can be caused by active or passive behaviour. However, passive behaviour is only punishable if the offender has a legal duty to act. This is called a guarantor position (art. 11 CP).
The mountain guide and the tour leader are in a position of guarantor because of the agency contract which binds them to their clients, respectively to the participants. The position of guarantor derives from the duty of care that is implied by the contractual relationship of the agency contract (CR-Cassani/Villard, art. 11 CP n. 32 et seq.).
The de facto leader is also in the position of a guarantor because of his duty of protection resulting from the freely agreed risk situation (art. 11 para. 2 letter c CP).
3. Common/serious assault through negligence
According to art. 125 para. 1 of the Criminal Code (Code Pénal, CP), anyone who causes injury to the person or the health of another trough negligence shall be liable on complaint to a custodial sentence not exceeding three years or to a monetary penalty. In the case of serious assault, the offender is prosecuted ex officio (art. 125 para. 2 CP).
A bodily injury can consist of a lesion of the human body (injuries, such as fractures, strains, cuts or haematomas) or of an impairment of health, both physical and psychological (making sick, aggravating the illness or delaying the recovery) (ATF 134 IV 191 consid 1.1, 119 IV 26).
In principle, a bodily injury is qualified as serious if the injury caused creates an immediate danger of death for the victim, regardless of whether the danger of death is of short duration. Injuries are also serious if they lead to a permanent incapacity to work, a permanent disability or a permanent mental illness (CR-Rémy, art. 122 CP n. 5ss). A serious and permanent disfigurement is also characterized as a serious bodily injury (ATF 115 IV 19 consid. 2a).
On the other hand, bodily injury will be qualified as simple when it is a question of an attack on the human body or health, which does not meet the criteria of serious bodily injury (art. 123 CP). Thus, the injury must have a noticeable deterioration of the state of the human body or of health. As examples we can cite the fact of making the victim fall and causing a sprain, a fracture, a cut, a haematoma or any other recognizable alteration of the human body which does not endanger his life (CR-Rémy, art. 123 CP n. 2 ss).
In order to be punishable, negligence must still have a causal link with the injury caused (ATF 115 IV 199, para. 5b; ATF 133 IV 158, para. 6.1).
It is important to keep in mind that in the field of sports, especially in alpinism, there is a risk of injury inherent to the activity. Thus, up to a certain degree, injuries inflicted during the practice of alpinism will be covered by the implicit agreement of the injured person, and therefore considered lawful (CR-Villard/Corboz, art. 12 CP n. 177). This would typically be the case of slight scratches or bruises, due to the proper practice of alpinism.
4. Homicide through negligence
According to art. 117 CP, any person who causes the death of another person through negligence, shall be liable to a custodial sentence or to a monetary penalty.
The offence consists of negligently breaching a duty of care and thereby causing the death of another person.
There must be a causal link between the negligence and the death of the victim (ATF 115 IV 199 rec. 5b; ATF 133 IV 158 rec. 6.1).
C. The specific responsibility of the guide and the tour leader: duty of guarantor resulting from the agency contract
The mountain guide and leader are in a position of guarantor due to the agency contract. This duty of guarantor implies a duty to protect the participants, respectively a duty to act. Thus, both the mountain guide and the tour leader can commit negligence either actively or passively. In the latter case, he/she must omit to act when the circumstances would have required an action (CR-Villard/Corboz, art. 12 CP n. 123 et seq.).
Negligence is only culpable if a duty of care has been violated in a faulty manner. Similar to the duty of care in civil matters, the duty of care is determined by the concrete circumstances. Thus, in the first place, it must be examined whether legal or safety regulations have been violated. In particular, this concerns the directives and laws to which the guide (in particular the Risk Act, the safety rules issued by private associations as well as the general rules of caution) and the tour leader are subject. This includes in particular the rules and regulations of the Alpine Club, the safety rules and the general rules of caution. If these rules have not been respected, the violation of the duty of care is presumed (ATF 134 IV 255, 4.2.3). The concrete circumstances are then taken into account to determine whether the duty of care was actually violated.
As in civil law, the mountain guide has a higher level of training than a tour leader and therefore has a higher duty of care than a tour leader.
If the mountain guide or tour leader violates his/her duty of care, he/she will be liable to prosecution.
An example of a breach of duty of care is the case of a mountain guide who chose a route which he/she recognized as potentially dangerous because of the risk of avalanche, but did not take any precautions other than a simple test of the quality of the snow by means of a stick, whereas he/she could, without additional effort and without harming the excursion, go through another place without danger. One of his clients triggered an avalanche while passing through this route. The mountain guide was found guilty of homicide through negligence because he/she took a risk that exceeded the permissible extent and thus violated his duty of care. It is interesting to note that in its decision, the Federal Court examined the question of the concomitant fault of the victim. This was denied on the grounds that the mountain guide had not given any clear indication as to the route to be followed, and that the victim had hardly deviated from the route taken by the rest of the group. The causal link was not interrupted by a possible fault of the victim either, since according to the expert opinion, the avalanche could very well have been triggered when the first participants passed by. Thus, even if one were to admit that the victim had not exactly followed the route indicated by the guide, this would in no way be the most likely cause of the accident, relegating the responsibility of the guide to the background (TF 6_B_275/2015 of June 22, 2016).
If the above-mentioned case were to be applied to the tour leader, the breach of duty of care is so obvious that there would undoubtedly also be a conviction. On the other hand, the penalty imposed by the judge would be lower than for a mountain guide, given the lower degree of care attributable to the tour leader.
D. The specific liability of the de facto leader: duty of guarantor resulting from the reckless undertaking
If the mountain guide occupies a position of de facto leader, it means that he/she is not acting in his/her professional capacity or that he/she has more experience than the official leader of the outing. If the tour leader occupies this position, he/she is not acting within the framework of the Alpine Club or has more experience than the official leader of the outing. If a third party occupies this position, it is only because of his/her experience.
As with the mountain guide and the tour leader, the culpability of the leader will only be determined in the case of a culpable violation of a duty of care. Like the first mentioned, the duty of care of the leader will be determined according to the concrete circumstances. For example, we can mention the age and experience of the leader, the difficulty of the tour, the level of the participants, etc.
The personal circumstances are therefore decisive, since the question arises as to whether, given his/her knowledge, the author could have avoided the commission of the offence. As a reminder, the degree of caution of a mountain guide is higher than that of an untrained third party.
IV. Social Insurance Law: Reduction and Denial of Benefits
A. The notion of accident in alpinism
As a reminder and in general, an accident is an unintended process that affects the insured's health. The process and the injury must be related by the causal link (art. 4 LPGA). An accident implies the existence of an extraordinary external factor, which must occur suddenly, without the insured's own intention (Dupont/Longchamp, p. 296).
The notion of accident is applied more strictly in the field of sports, respectively alpinism. In fact, it appears from the jurisprudence of the Federal Court that in matters of sports activities, the Court takes into account the fact that during the practice of the sport concerned, such as alpinism, the risk of an accident is higher than the average and that, as a result, its unpredictability is reduced. Thus, the Court first examines whether the accident is part of the risks inherent to the sport in question. Secondly, it examines whether, in concrete terms, taking into account the personal circumstances, the athlete could reasonably expect the accident to occur (Dupont/Longchamp, p. 303).
In short, the more experienced the person concerned is, the more he/she is considered to be able to take risks in the practice of his/her sport, such as alpinism, and the less the extraordinary character of the accident will be admitted. The Court therefore tends, in general, to recognize less easily the accident in the field of sport, respectively alpinism.
B. Reduction of benefits for gross negligence
If the insured person caused the accident through gross negligence, the insurance company has the possibility to reduce the daily allowances paid during the first two years following the accident (art. 37 al. 1 LAA, derogating from the general regime of art. 21 al. 1 LPGA). Gross negligence is a violation of the elementary rules of prudence that any reasonable person would have observed in the same situation and under the same circumstances, in order to avoid the occurrence of the accident (BGE 134 V 340, para. 3.1 and BGE 121 V 45, para. 3b). Simple inadequate, erroneous or short-sighted behaviour, which only constitutes a minor fault, does not lead to a reduction in compensation (Frésard-Fellay/Kahil-Wolff/Perrenoud, p. 446).
In order for the insurance company to reduce the benefits, the causal link between the gross negligence and the harmful event must be established (ATF 121 V 45 recital 3a and ATF 118 V 307 recital 2c).
For example, we can cite the case of a tour leader who fails to impose the use of crampons on a steep glacier, or the case of a mountain guide who fails to impose the use of a helmet in a place with a high risk of falling rocks.
C. Reduction or denial of benefits for recklessness
The social insurance legal system provides that in the case of recklessness, benefits may be reduced by half and, in particularly serious cases, denied (it is important to note that even in the case of recklessness, the rescue of a person, however inadequate, is always covered by the insurance under art. 50 para. 2 OLAA; ATF 134 V 340 recital 4.2).
Reckless undertakings are cases in which the insured knowingly exposes himself or herself to a particularly serious danger without taking measures to reduce the risk (art. 50 OLAA). The recklessness must be in a causal relationship with the health damage caused (BGE 138 V 522, recitals 6 and 7). The reduction or refusal is determined according to the role of the reckless undertaking in the damage caused (BGE 126 V 116, recital 5b and BGE 115 V 413).
The system distinguishes between absolute and relative recklessness. Absolute reckless undertakings are dangerous activities, regardless of the insured's education, preparation, equipment and skills (Ionta, p. 196). Examples include base-jumping, quad biking and hill-climbing (Frésard-Fellay/Kahil-Wolff/Perrenoud, p. 449). On the other hand, relative reckless undertakings are activities that present a high risk, but whose practice is considered reasonable if the insured meets certain requirements, particularly in terms of personal aptitude (Ionta, p. 196). Thus, the denial or reduction of the benefit depends on whether the insured was fit to perform the activity and took the necessary precautions to limit the risks to an acceptable level. If the answer is positive, the activity will not be considered reckless (art. 39 LAA and 50 OLAA; Dupont/Longchamp, p. 308). Examples of relative recklessness are canyoning (ATF 125 V 312), diving (ATF 134 V 340), rock climbing (ATF 97 V 72) and alpinism (ATF 97 V 72).
Thus, depending on the degree of difficulty and the level of risk in the particular case, it is not excluded to consider the practice of alpinism in a concrete case as a reckless undertaking, leading to a reduction or even a refusal of benefits by the accident insurance (TF 8C_472/2011 of January 27, 2012, recital 2.3).
In practice, however, the total refusal of services remains rare. This would be the case, for example, of an inexperienced hiker embarking on a very difficult mountain route in bad weather and despite the warnings of alpinists with solid knowledge (Ionta, p. 201).
D. Reduction or denial of benefits for the commission of a crime or offence
If the insured person was the victim of an accident while committing a crime or offence, even unintentionally (the reduction will nevertheless be greater in the case of intentional than unintentional commission; ATF 134 V 227 consid. 3.5), the benefits may be reduced or, in particularly serious cases, refused (art. 21 al. 1 LPGA and 37 al. 3 LAA). The accident must occur during the commission of an offence; however, it is not necessary that the criminal act be the cause of the damage caused (Frésard-Fellay/Kahil-Wolff/Perrenoud, p. 447).
Thus, if the mountain guide or tour leader has caused a personal injury or death of a participant through negligence, and in this context he/she has been involved in an accident, he/she is liable to a reduction or loss of compensation from his/her insurance
V. Specific issue: Safer access to the hut
As we have seen, the mountain guide, the tour leader and the de facto leader all have a responsibility when leading a high tour. Due to their respective degree of training and knowledge, this degree of responsibility will be more or less high.
Regardless of the degree of responsibility, the tour leader must always ensure that he/she acts with due care, taking into account his/her personal abilities, those of the participants and the concrete situation. In the event of an accident, he/she will have to prove this diligence. For this reason, it is imperative to keep this need for proof in mind and to carefully document the preparation of each tour in writing. During the tour, it is obviously very difficult to establish written proof, but the controls and reasoning made during the tour can be communicated to the members of the group who will then be in a position to testify on this point within the framework of a possible procedure.
That being said, it should not be forgotten that the participants also bear some responsibility. Although their responsibility is less for a tour led by a mountain guide, more for an alpine club outing and very high in the case of the de facto leader, the participants must carry out some basic checks themselves and make sure that their own equipment is working. They also have a duty to report any unusual problems spontaneously. It is therefore important to always remind each participant of this duty to inform and control.
Guides and tour leaders must also keep their knowledge up to date and follow the recommended ongoing training. It is not uncommon for certain practices to change, and it is absolutely essential to be aware of them, or risk incurring liability.
Finally, and insofar as the position of guarantor may result from conclusive acts (TF 6B_301/2010, recital 2.4), the de facto leaders will be well advised to be aware of their responsibility and to act accordingly. Thus, before each outing, it is essential to clarify the role of each person and the responsibilities that flow from it, particularly in terms of the duty of care and the need to prove its respect.