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Question of contributory negligence in a road accident involving a passenger who was not wearing a seatbelt.

In Germany, anyone who causes an accident must be sentenced in accordance with local law. As a rule, however, it is not just one person who is responsible for causing an accident, but several. Additionally, the penalty can be reduced by what is known as contributory negligence. This is regulated in German law in Section 254 of the German Civil Code (BGB).

German Civil Code (BGB).
§ 254 Contributory negligence
(1) If the damage was caused in part by the fault of the injured party, the obligation to pay compensation, and the amount of compensation, shall depend on the circumstances, particularly on the extent to which the damage was primarily caused by one party or the other.
(2) The same applies if the injured party's fault is limited to failing to draw the debtor's attention to an unusually high risk of loss, of which the debtor was unaware and could not have been aware, or failing to avert or minimise the loss. The provisions of Section 278 shall apply accordingly.

This includes, for example, the injured party disregarding traffic rules in an accident. A recent case involving such circumstances was decided by the Cologne Higher Regional Court. A heavily intoxicated driver was travelling at excessive speed on the roads. This resulted in a collision in which the occupants of the other car were seriously injured. Another passenger was sitting in the back seat of this car but had not fastened her seatbelt, thus breaching the seatbelt requirement.
The insurer of the person responsible for the accident therefore wanted to seek recourse against the woman in the back seat due to contributory negligence. Not wearing a seatbelt contributed to the accident and to the passenger in the front seat being injured. In principle, the insurer's argument is not unreasonable, as such behaviour can justify a finding of contributory negligence.

However, the behaviour of the person responsible for the accident was so serious that it outweighed the seatbelt violation.
According to the Higher Regional Court, however, the above behaviour is overshadowed by the dangerous behaviour of the perpetrator: driving under the influence of alcohol at excessive speed. This particularly reckless behaviour was the primary cause of the resulting injuries and damage. In this case, weighing up the question of fault led to the unbelted occupant being completely exonerated, provided such particularly reckless behaviour was present.

 

Higher Regional Court (OLG Cologne), judgement of 27 August 2024 – I-3 U 81/23

 

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