What to do after a traffic accident through no fault of your own?

Picture: Illustration traffic accident through

Traffic accidents occur thousands of times every day in Germany. The risk of being involved in a traffic accident in the course of your life is therefore quite high.

Just a moment of not paying attention and it happened. But what if you have behaved completely according to the rules yourself? How do you get your rights as an accident victim?

Here you can find out which points you should definitely pay attention to in the event of a traffic accident through no fault of your own.

1. Should you always inform the police?

In the case of minor rear-end collisions in particular, the question often arises for those involved in the accident as to whether it is actually necessary to call in the police.

You want to avoid the impression that you didn't call the police because you were guilty of something. And you certainly don't want to give up your rights by not calling in the police.

However, if every scratch, no matter how small, was immediately reported to the police, they would quickly be overburdened in view of the high number of traffic accidents per day.

In principle, therefore, the police do not have to be called in every accident.

Whether the accident should be reported to the police depends, among other things, on the following points:

• In terms of the damage caused, is it a more serious accident?
• Is the other side cooperative?
• Is it advisable for the police to seize evidence?
• Where did the accident happen?

If the accident occurs on a busy road or at a traffic junction, the police can prevent further accidents and maintain or restore the flow of traffic. This is also in the interest of those involved in the accident, as they may have to secure the scene of the accident.

If, on the other hand, it is a minor accident - for example in a supermarket car park - and there is only damage to the paintwork or bodywork, there is often no need to report it to the police.

However, the parties involved in the accident must then ensure that all necessary determinations are made in order to be able to clarify the damage with the respective insurance company.

In any case, this includes:

1. Name and address of the person(s) involved in the accident
2. License number
3. Insurance and insurance number of the other party involved in the accident
4. Type of involvement (driver, pedestrian, etc.)

If the person involved in the accident refuses to provide this information (which everyone involved in the accident is legally obliged to do) or if you have doubts about its accuracy, you should call in the police to check your personal details.

You should also call the police if someone has been injured or if the other party gives the impression of having consumed alcohol or drugs.

Note: For cost reasons, you should not hesitate to call the police. You will not be charged for the legitimate use.

It should be noted that calling the police in the event of a minor accident is not mandatory and does not have to be a disadvantage from a legal point of view.

Only if the accident was more serious and could raise complicated legal issues, including those relating to guilt, may it be to your advantage and even necessary from an insurance point of view for the police to collect evidence.

You must make this decision at the scene of the accident. If one of the parties involved in the accident would like the police to record the accident, you must comply with this request.

Legal tip: Even if you are of the opinion that you are not to blame for the accident, you must under no circumstances leave the scene of the accident without enabling yourself to make the above-mentioned statements.

2. What rights do I have as an injured party?

As an injured party, you have a whole range of claims against the person who caused the accident, which you can essentially assert independently of one another.

1. Repair Costs

If the other party involved in the accident caused damage to your vehicle, the first rule is that you are entitled to comprehensive repairs.

You have the choice: you can either carry out the repair at the expense of the other party's insurance company or have the amount paid out (so-called "fictitious settlement").

Especially with minor damage (dents, scratches) a repair is often not worthwhile. However, you should note that insurance companies can only reimburse you a lower amount in the case of a fictitious billing than would be incurred for an actual repair.

In particular, the value added tax is not paid out, since the injured party is only entitled to it if it has actually been incurred.

2. Replacement Costs

If your vehicle is so badly damaged that a repair - from an economic point of view - no longer makes sense because the cost of the repair exceeds the value of the vehicle (so-called "economic total loss"), you can usually only request reimbursement for the replacement cost.

These are the costs that would be incurred to replace the vehicle with the same value – minus the residual value. Various factors play a role in determining the value - but above all the condition of your vehicle before the accident (e.g. age, wear and tear, etc.).

3. Impairment

If the value of the vehicle decreases as a result of the accident, a distinction must be made between technical and commercial depreciation, both of which can be replaced.

There is a technical reduction in value if the damage to the vehicle cannot be completely repaired despite professional repairs (e.g. color differences in the paint).

On the other hand, there is a mercantile reduction in value if the vehicle achieves a lower value on the market due to the accident damage, which is almost always the case with accident vehicles.

4. Medical expenses

If you were injured in the accident, you can demand reimbursement of all costs incurred as part of your medical treatment in addition to the costs for repairing the vehicle.

Under normal circumstances, however, you do not notice much of these costs, as they are initially disbursed by your health insurance. This, in turn, is held harmless by the opposing insurance company. You can, of course, claim costs that are not covered by your health insurance company.

However, it is important to distinguish between compensation for pain and suffering. This is not identical to the costs of the medical treatment, but must be claimed separately (more on this later).

5. Surveyor's Fees

In order to be able to determine the extent of the damage and the associated costs, expert opinions are often required. In connection with traffic accidents, two types of expert opinions are particularly relevant.

That of the accident analyst who reconstructs the course of the accident.

That of the motor vehicle appraiser, who quantifies the extent of the damage to the accident car and the costs of the repair.

If the other party involved in the accident is solely responsible for the damage caused, only he or she bears the costs for the preparation of all necessary reports.

Legal tip: If the opposing insurance company has already commissioned its own expert, this should not prevent you from commissioning another vehicle expert for your own report.

As an injured party, you can choose an expert yourself. The (sole) cause of the accident or the opposing liability insurance company must also pay for these costs.

If the damage to your vehicle is only minor damage (minor damage), there is usually no room for the preparation of complex reports. You cannot therefore demand reimbursement of the corresponding costs. In case law practice, the de minimis limit is usually set at 750 euros. Is the a

If the damage is less than this, an expert opinion is usually not accepted. But even if the limit is exceeded, the costs caused by the expert opinion must not be disproportionately high. It may then happen that you have to bear part of the costs yourself.

Practical tip: Contact your insurance company first. If this does not cover the costs because a simple cost estimate is sufficient, then there may be no need for an expert opinion.

6. Rental Car Costs

If you are the owner of the damaged vehicle and this is canceled as a result of the accident, you can hire a car for the downtime. This includes both the period from the accident to the preparation of the necessary expert reports as well as the duration of the repair or replacement of the vehicle.

Practical tip: Insurers often only want to reimburse the costs for a rental car for the period of repair or replacement. In addition, in the event of a total loss, you often make the reimbursement of costs dependent on the fact that a new vehicle is actually purchased.

In order for all costs for the vehicle to be covered, the rental car must have similar characteristics to your own vehicle. For example, the rental car must not belong to a higher type class. If necessary, the costs will be reduced to the permissible level, so that you only get part of the costs back.

Legal tip: When considering whether a vehicle should be rented temporarily, the injured party is given a little time to think it over. However, you shouldn't take too much time with it. 10 days should be the maximum here.

However, you cannot drive the rental car indefinitely as an “interim solution”. Even as an injured party, you must ensure that the accident costs are reasonable (duty to mitigate damage).

The information provided by the expert on the expected repair time for the damaged vehicle is primarily decisive for the permissible duration of the use of the rental car.

In the case of very long repairs, it is possible to first put the vehicle in a drivable condition and continue to use it until a final repair can be carried out.

Even in the event of a total loss - and the resulting purchase of a new car - the rental car period is primarily based on the information provided by the expert.

Practical tip: Experts often estimate a period of 14 days for the replacement period.

If you rarely use your car (e.g. less than 20 km per day) you may be directed to use a taxi. However, certain counter-exceptions also apply here, for example if you are dependent on the constant availability of a vehicle due to work or illness.

7. Compensation for Loss of Use

As an alternative to the rental car, you have the right to claim loss of use and the associated "lost benefit" of using the accident vehicle and to demand monetary compensation for this.

The loss of use can be determined per day for each type of car using a table – the so-called Schwacke list – which also takes the age of the vehicle into account.

Practical tip: If there is no doubt that the other party involved in the accident is fully at fault, it does not really matter what you decide, as you do not have to reimburse any costs when using a rental car. This would only be different if you can be accused of contributory negligence.

In contrast to the repair costs, fictitious billing in the event of a loss of use is not possible. You must therefore demonstrate that you actually would have wanted to use the damaged vehicle (so-called willingness to use it) and were able (so-called possibility of use).

This may not be the case if, for example, the injured party makes no effort to repair the vehicle promptly after the accident, is bedridden or is not in the physical vicinity of his vehicle at all during the period of loss of use.

Practical note: The case law on loss of use is extremely extensive and sometimes very inconsistent. The decisive factor is primarily that both the will to use and the possibility of use are convincingly presented.

Practical tip: If you are dependent on a vehicle but still want to claim loss of use damage, you can also rent a car of a lower type category than your damaged/destroyed vehicle. In this way, you are still mobile and can claim a loss of use for the cuts in comfort.

Attention: There is no flat-rate compensation for loss of use for commercially used vehicles (see decision of the Federal Court of Justice, judgment of December 6, 2018, Az.: VII ZR 285/17.).

8. Indemnification

In addition to material damage, you can also damage traffic

demand compensation in the event of an accident - the so-called "pain and pain" payment. Immaterial damages are those that cannot be measured in money (What does pain cost?). Nevertheless, the law makes an attempt to award the injured party appropriate monetary compensation.

In order for a corresponding claim to exist, the following requirements must be met:

• Existence of personal injury (e.g. injuries to the cervical spine, pain, whiplash)
• the car accident is the cause of the personal injury that occurred (causality)
• intentional or negligent behavior of the person who caused the accident

The severity of injuries sustained can range from minor impairments to permanent damage or disability. Mental impairments are also recorded.

There are no fixed figures for the amount of the claim for compensation for pain and suffering. The so-called table of compensation for pain and suffering provides an initial, rough guide to the amount of compensation for pain and suffering.

However, what adequate monetary compensation actually means is usually only decided when the specific circumstances of the individual case are taken into account.

The amount of compensation is based on various factors, such as:

• Severity and extent of injuries sustained
• Effects on earning capacity
• limitations in everyday life
• Scope and duration of therapy
• consequential damage

In addition, it is crucial for the enforcement of the claim for pain and suffering that you can prove the above-mentioned requirements beyond any doubt. The following evidence is suitable for this:

• police reports
• Medical reports and certificates
• testimonies
• Evidence of all consequences of the accident (as mentioned above)

9. Loss of earnings

When claiming the loss of earnings, a distinction must be made between self-employed and dependent work (salaried employees). Employees have a (statutory) right to continued payment of wages in the first 6 weeks of their loss of earnings.

The employer will then be held harmless by the other party involved in the accident or his insurance company. Thereafter, a claim for loss of earnings can also be asserted by the employee.

Loss of earnings damage to the self-employed is much more difficult. In particular, there is no continued payment of wages. The mere loss of the workforce does not give rise to a claim for damages, but can only be quantified when damage occurs. Lost business or slumps in profits are particularly relevant here.

10. Other damages

The damages listed are only the most common and therefore most important items that regularly occur in accidents. In addition, other items may well come into consideration - such as:

• travel and travel costs
• disposal or towing costs
• Replacement of items damaged or destroyed as a result of the accident
• childcare
• Home help
• lost profit
• credit costs
• Loss of a tank of fuel
• Cost of a new license plate
• Deregistration and registration costs

3. Should I hire a lawyer?

Due to the large number of possible claims, the legal layperson often does not succeed in asserting all claims because they are either forgotten or not asserted with sufficient emphasis. It also happens again and again that insurance companies try to reduce the costs incurred by all means.

In some cases, the use of individual rights is discouraged or wrongly rejected by the opposing liability insurance company - because insurance companies also want and have to work economically.

It is obvious that this is not always in the interests of the injured party, who wants to be compensated as comprehensively as possible.

In the event of an accident through no fault of your own, legal assistance is always advisable.

From the point of view of the injured party, this does not result in any disadvantages. The commissioned lawyer will initiate all necessary measures and, in particular, take care of all correspondence with the insurance companies, experts and the police.

He will give you comprehensive advice on the claims to be considered and examine your chances of success in detail. All of this costs you nothing, since the legal fees in the event of an accident that is not your fault are borne exclusively by the person who caused the damage (more on that later).

Practical tip: In order to be able to assert as many claims as possible, you should hire a lawyer specializing in traffic law as early as possible. Ideally, immediately after the accident. Late legal counsel cannot guarantee that all claims will be met.

4. Who bears the costs for a lawyer?

Since the assertion and enforcement of the above-mentioned claims in the event of a traffic accident is very time-consuming and difficult for laypeople to understand, you may, after an accident in traffic through no fault of your own, assert the Beauftra

regularly deem it necessary to hire a lawyer to carry out the settlement of claims.

In plain language, this means: In the event of an accident through no fault of your own, the other party must also assume the legal fees incurred. Make use of your right! Leave the work to the professionals and pass the costs on to the injuring party.

5. Conclusion

• In principle, there is no obligation to inform the police in minor accidents. The question of guilt is also rather secondary. The decisive factors are primarily the severity of the accident, the willingness of the other party to cooperate and the respective evidence.

• In the event of a traffic accident through no fault of your own, numerous damage items can be asserted – side by side.

• If you are the victim of a traffic accident through no fault of your own, you should consult a lawyer immediately – the other party will bear the costs. (*)