It is established that the lower court was entitled, without acting arbitrarily, to assume that work on the roof membrane had been carried out on the day of the accident (consideration 3.3 above). Furthermore, the appellant does not challenge the lower court’s assessment that it had been technically impossible, or disproportionately costly, to secure the roof with a walkway during this work. Under Article 45 paragraph 2 of the Construction Work Ordinance, it was permissible in these circumstances to dispense with securing the roof by means of walkways. What remains disputed, however, is whether the respondent was required under Article 45 paragraph 2 of the Construction Work Ordinance to secure the roof in another way, by means of safety nets. The appellant rightly criticises the lower court’s considerations on this point. The Federal Supreme Court’s case law proceeds on the basis that an infringement of an implementing provision issued pursuant to Article 83 of the Federal Act on Accident Insurance constitutes an indication of a breach of the duty of care (consideration 3.4.2 above). It also follows from this, however, that an offender who complies with such a provision does not automatically act with the requisite care. According to settled case law, the care required under criminal law is not determined solely by abstract rules of conduct, but is ultimately also determined by the specific circumstances (see the references in consideration 3.4.1 above and BGE 106 IV 80 consideration 4b; judgments 6S.587/2006 of 24 April 2007 consideration 2.2; 6S.529/2001 of 18 February 2002 consideration 2a). In the present case, there is a clear contradiction concerning the fall height between Article 45 paragraph 2 of the Construction Work Ordinance and the SUVA information sheet. The explanatory report on the Construction Work Ordinance raises the question whether the fall height of 3 m, still contained in Article 45 paragraph 2 of the Construction Work Ordinance, is attributable to an oversight by the ordinance-maker, since one of the aims of the complete revision of the ordinance was to standardise the fall height at 2 m. That question can be left open here. For the criminal-law assessment, it is sufficient to note that both the explanatory report and the SUVA information sheet assume a fall height of 2 m. If the lower court nevertheless concludes that the respondent exercised the requisite care when he took no safety measures at the accident site, where the undisputed fall height was 2.5 m, it violates federal law. According to the case law, the lower court should have examined whether the respondent exercised the care required by all the circumstances. 3.4.9. The challenged judgment contains no further findings of fact concerning the situation on the construction site. In addition, the lower court left open whether the appellant began work on the roof on the day of the accident on the respondent’s instructions. Nor did it examine in greater detail whether the respondent, in his role as foreman, bore responsibility for compliance with occupational safety, which the employer was required to ensure (see judgment 7B_7/2023 of 8 March 2024 consideration 2.5.3). For these reasons, the challenged judgment does not comply with the requirements of Article 112 paragraph 1 letter b of the Federal Supreme Court Act. It must be set aside. The matter must be remitted to the lower court for further examination.
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Report·Migration, Justiz, innere Sicherheit·Document finding
6B_784/2025, judgment of 19 August 2026
The matter must be remitted to the lower court for further examination.