I’m at fault for the accident, but what about the other guy? How is contributory fault determined

What is contributory negligence in a traffic accident and when is it used

The term “contributory fault” is often used in practice to refer to two completely different situations – either the fault of several injured parties or the contributory fault of the injured party who has partially caused his or her own injury. It is therefore not the classic “one culprit – one victim” model, but the joint action of several breaches of duty which combine to result in a traffic accident. It is essential that the contributory liability applies not only to the driver but also to other road users – pedestrians, cyclists and, where appropriate, road managers.

In practice, this means that even if the driver thinks “I am at fault for the accident”, this does not automatically mean that he or she is fully responsible. It is possible that the other party may have made the situation worse by making an incorrect manoeuvre, driving at an excessive speed, failing to signal a change of direction or breaching another regular duty. This is why contributory fault is assessed comprehensively and individually in each case.

It is very important to distinguish whether the situation is one of multiple tortfeasors or one of contributory fault on the part of the victim. In the first case, the injured party is entitled to claim compensation from any of the injured parties, as they are jointly and severally liable. In the latter case, the compensation to the victim is reduced according to the contribution of the victim’s conduct to the injury.

Joint liability is typically addressed in situations where the colliding vehicles endangered each other, such as when pulling out of a side road, overtaking, failing to maintain a safe distance, or speeding. Similarly, contributory negligence can arise if the victim’s behaviour increased the extent of the damage – for example, failing to wear a seatbelt or driving an unroadworthy vehicle.

The purpose of assessing the degree of fault is to determine fairly who is liable for the injury and to what extent – whether there are multiple harms or whether the victim contributed to the harm himself. The amount of damages is then based on this, and the amount of damages is reduced accordingly according to the degree of fault.

In this article, we use the simplifying term contributory fault because it is commonly found in insurance company communications and in practice. However, it is not a term used by the Civil Code. From a legal point of view, a distinction should be made:

• the fault of several wrongdoers who are jointly liable for the same injury (joint and several liability under section 2915 of the Civil Code),
• contributory fault of the injured party, i.e. a situation where the injured party has contributed to the injury (Art. 2918 CC), which leads to a reduction in compensation.

How is contributory fault determined

The assessment of complicity is not simply a matter of one authority’s opinion. In fact, there are three main bodies involved – the police, the insurance companies and possibly the court. Each of them approaches the matter differently and looks for different facts.

As a rule,the police assess traffic violations. It looks at who was speeding, who failed to yield the right of way, whether someone failed to keep a safe distance, what the drivers’ manoeuvres were just before the accident and what marks are on the road. However, the police do not usually decide the percentage of fault; they will state the violation and describe the course of the accident.

The insurance companies then evaluate how much of an impact the individual errors had on the accident and in what proportion the liability changes. This means that it is the insurance company that determines whether the contributory fault was 20%, 50% or even 80%. It makes its decision based on the police report, photographs, statements and expert reports.

The courts step in when one of the parties disagrees with the determination of the level of fault. The court then has to evaluate the legal and factual aspects of the case in detail. Unlike the insurance company, the court may take into account broader circumstances, including the driver’s mental state, the condition of the road, or the possibility of avoiding the accident. Thus, the court can significantly change the ratio of contributory fault, both upwards and downwards.

Importantly, when a driver says, “I am at fault for the accident,” he or she is often only admitting a subjective sense of guilt, not legal responsibility. A car accident is a complex event and the degree of fault is judged strictly by the law and objective facts.

Typical situations where contributory fault is asserted

There are scenarios in which contributory fault comes into play very often. Some of them are:

1. Failure to yield vs. speeding: If a driver on the side of the road fails to yield the right of way, at first glance he or she appears to be fully responsible. However, if the other driver was going significantly faster than the speed limit, it is common for a portion of the fault to be attributed to him, perhaps 20-40%. The courts have repeatedly pointed out that speeding substantially increases the risk of a collision.
2. Overtaking accident: the overtaking driver has a duty to take extra care, but if the other driver has failed to signal a change of direction or has shifted inappropriately, he or she may again be partly at fault. These types of accidents tend to be very contentious and are often settled in court.
3. Insufficient distance: if someone fails to keep a safe distance and hits the vehicle in front of them, they are usually at fault. However, if the driver in front braked suddenly and unnecessarily hard, the insurance company may determine his or her contributory fault.
4. Pedestrian or cyclist on the road: a pedestrian enters the road outside a crosswalk, a cyclist rides without lights – here too, it is assessed whether their carelessness contributed to the accident.

These situations show that complicity in a traffic accident is not uncommon and that in practice it is rare to find a case where one of the participants bears no part at all in the collision.

How contributory fault affects compensation for damages and liability claims

Compensation is reduced only if the injured party contributed to the injury. In a multiple-fault situation, the victim’s compensation is not reduced – only the proportion of fault borne by each of them is assessed. The insurance company will reduce the compensation by exactly the percentage that accrues to the injured party. Thus, if it is determined that the injured party is 30% at fault, they will only receive 70% of the compensation.

If there are multiple tortfeasors, the injured party has the right to claim full compensation from any one of them, as they are jointly and severally liable.

Joint liability is reflected in the damage to the vehicle as well as in personal injury, loss of earnings or medical expenses. However, the situation is more delicate in the case of personal injury – courts often take into account that the driver, for example, did not cause the accident itself, but merely increased the consequences by not being restrained. In such cases, the reduction in compensation is usually between 10-25%.

It is very important to distinguish between a situation where the insurance company says you are at fault for the car accident, and when in reality the situation is much more complex. If a driver feels that he or she has been assigned an unreasonably high level of fault, it is advisable to have the decision reviewed – either by another insurance company or by a lawyer. This will give you another relevant opinion, but only a court can overturn the decision.

In addition, if the party disagrees with the insurer’s decision, he or she can appeal and possibly sue for damages. It is good to know that the court can correct the insurance company and adjust the percentages, sometimes substantially.

In practice, for example, it is not uncommon for an insurance company to set a 50% deductible where the courts routinely rule 20% or less. Thus, the legal defense is often not only reasonable, but also very financially advantageous.

What to do if you disagree with the excess or consider it to be wrong

After an accident, many drivers wonder whether it is fair that the insurance company assigned them a deductible. If you believe that your actions were not that serious, or that the other party violated the rules to a greater extent, you have every right to defend yourself.

1. Ask for all documentation: the insurance company is required to provide the documents on which it based its decision – including photo documentation, expert testimony, and analysis of the accident.
2. Reality check: In practice, mistakes such as: incorrectly stated speed, wrong plotting of the situation, overlooking important facts (e.g. poor visibility, wet road), incorrect assessment of braking distance.
3. Filing an objection or appeal: if the insurance company refuses to change its mind, you can file an objection or appeal. Legal arguments often greatly increase the chances of success.
4. Litigation: If it’s a major loss or a dispute with a major impact, you can go to court. The court will make its own assessment (often through a transport expert) and determine the correct level of fault.
5. Legal advice: Defending against an erroneous determination of contributory fault is typically a professional one. If you are unsure whether you are at fault in a car accident, it really is best to have an expert evaluate the situation.

Summary

Contributory fault in a car accident means that more than one party contributed to the damage and therefore liability is apportioned according to the degree of fault – even if someone feels they are at fault, they may not be entirely to blame. It is judged by the police (who determine the violation of the rules), insurance companies (who determine the percentage of contributory fault), and possibly the courts, which can significantly alter the insurance company’s conclusions. Typical situations of contributory negligence are failure to yield the right of way related to speeding, overtaking accidents, failure to keep a safe distance, or cases where a pedestrian or cyclist violates their duties. The amount of compensation is reduced according to the exact percentage of contributory fault, both for property and personal injury. If the driver disagrees with the determination of contributory fault, he or she may request documentation, verify the accuracy of the conclusions, file an objection or appeal, and seek a fair hearing in court if necessary. The contributory fault can be changed after the fact, the signature of a plea of guilty at the scene of the accident is not binding, and the police do not address the financial consequences, only the violation.