Traffic Accidents2026-09-11

Contributory Fault After a Car Accident – How Is the Liability Split Calculated?

The insurer is blaming you for part of the accident and will only pay a share of your losses? I explain how the liability split is really worked out, and where it pays to push back.

The other side’s insurer gets in touch and says: “We’ll only settle 50%, you’ll have to bear the rest yourself.” For many clients, that is the first shock after an accident. All you did was react – so how can any of it be your fault? The liability split after a road traffic accident is rarely a simple yes or no. It is the result of a weighing exercise. And there is often considerable room to shift it back in your favour.

In brief

Where an accident involves more than one party, responsibility does not automatically fall on one person alone. Liability follows each party’s actual contribution to the accident. In law, this is called the apportionment of causal contributions. The key provision is section 17 of the Road Traffic Act (StVG) for accidents between two motor vehicles. Where a pedestrian, cyclist or other injured party is involved, section 254 of the Civil Code (BGB) applies in addition. What matters is who broke which traffic rules. Equally, it matters how serious that breach was compared with the other party’s conduct. Mere assumptions on the insurer’s part are not enough.

How I can help

Reviewing the liability split proposed by the insurer against your account of the accident, photos, sketches and witness statements
Obtaining and analysing the police investigation file to secure evidence that would otherwise be lost
Instructing an accident-reconstruction expert where the sequence of events is in dispute
Corresponding and negotiating with the other side’s insurer to secure a realistic split that is more favourable to you
Bringing a claim before the competent court where no reasonable settlement can be reached out of court

The legal basis: operating hazard and causal contribution

Where an accident occurs between two motor vehicles, section 17 StVG governs how liability is shared between the vehicle keepers involved. The statute turns on “the extent to which the damage was caused predominantly by one party or the other”. So this is a comparison of each party’s contribution, not a rigid rule.

The first thing that feeds into this exercise is what is known as the operating hazard (Betriebsgefahr) of each vehicle involved. Simply by taking part in road traffic with a motor vehicle, a party bears a baseline share of liability – regardless of any specific misconduct. In practice, insurers often put this baseline at around 20–25% where no breach can be pinned on the driver in question. Add a proven traffic breach by the other side to their operating hazard – such as failing to give way, braking too late, an unlawful U-turn or running a red light – and the split shifts against them accordingly. Where the breach is especially serious, your own operating hazard may fall away entirely. The other side then bears 100% of the liability.

Under section 17(3) StVG, a party’s liability drops away completely if, for them, the accident was an “unavoidable event”. The statute requires that both the keeper and the driver observed “every degree of care called for by the circumstances of the case”. This is a high bar. It is not enough to have driven in a rule-abiding way. What is required is conduct on a par with that of a particularly careful, model driver – and in practice this is usually where the argument fails.

Where a pedestrian, cyclist or other injured party without their own motor vehicle is involved, the general contributory-fault rule in section 254 BGB applies in addition to, or instead of, section 17 StVG. Here too, the amount of the compensation claim depends on “the extent to which the damage was caused predominantly by one party or the other”. The same weighing logic applies at its core, only without the special feature of operating hazard. In these cases there is usually no second motor vehicle on the injured party’s side.

How the split is worked out in practice

The starting point is reconstructing how the accident unfolded: Who came from which direction? Who was travelling at what speed? Who had right of way? Were there signs of excessive speed or a delayed reaction? The material for this is typically the police accident report, photographs of the scene and of the vehicle damage, witness statements and – in modern vehicles – data from accident data recorders.

Where the sequence of events remains in dispute, an accident-reconstruction expert comes into play. From the damage patterns, skid marks and angles of impact, it is often possible to reconstruct who was moving at what speed and in which direction. This is frequently more precise than the subjective accounts of those involved allow. Especially where it is one person’s word against another’s, such a report is often the decisive lever. It helps to secure a split that is realistic for you.

Something worth knowing: there is no official “liability-split table” that insurers are bound to apply. In practice, insurers do take their bearings from typical categories of case (a rear-end collision, a lane change, a collision while pulling out of a parking space, for example). But every split has to be justified on the specific facts of your case. Blanket references to the insurer’s “usual” splits are no substitute for a genuine review of the individual case.

Common scenarios and how they are usually assessed

Some scenarios recur regularly in practice and offer a first point of orientation. In any given case, however, the assessment may always differ:

Rear-end collision: Here the first impression generally counts against the driver who ran into the back. Either they were following too closely, were not paying attention, or failed to brake in time. That presumption can, however, be rebutted – for example, where the driver in front braked hard for no apparent reason.
Lane change: On a lane change, the driver changing lanes generally carries the greater liability risk, because a heightened duty of care applies to them. Where a collision occurs during or immediately after the lane change, much of the evidence points against the driver changing lanes.
Collision while pulling out of a parking space or reversing: When reversing, or when pulling out of a property onto the road, a driver must take particular care to make sure the carriageway is clear. In a collision, they therefore often bear the greater share of liability, or even all of it.
Failure to give way: A driver who fails to give way is usually liable for the large majority of the damage. But the operating hazard of the party who had right of way can still count where that party was travelling significantly too fast.

Example scenario

A client turns left out of a side road onto a priority road. A vehicle coming from the right strikes him within the junction. The other side’s insurer initially settles only 30% of my client’s losses. Its argument: he failed to give way and bears the main share of the blame. Analysis of the investigation file and the accident photos shows, however, that on the evidence of the skid marks the other driver was travelling well above the speed limit. An expert report obtained in the case confirms a collision speed pointing to a substantial excess. Because both the failure to give way and the speeding breach contributed to the accident, the split can be negotiated down to equal, 50/50 liability. Instead of 30%, the client now recovers 50% of his losses – a significant top-up on the share already settled.

Common mistakes

You accept the insurer’s first split without checking it. Insurers build in a certain negotiating margin. Those who do not push back often pay too much.
You describe the course of the accident too vaguely, or change your account later. Even small deviations from your original statement to the police can later be held against you.
You fail to secure evidence. Photos of the final positions of the vehicles, of skid marks and of the whole accident location are often only available immediately after the accident. Those who do not take them are in a weaker position later.
You do without an expert report to save money. Where the sequence of events is in dispute, the report is often the only way to shift the split by 20, 30 or more percentage points. If you succeed, the other side normally bears the cost of it.
You call in your own motor liability insurer too hastily, without having the prospects of success assessed. This can cost you your no-claims discount, even though a higher recovery from the other side might have been achievable.

Frequently asked questions

Where you genuinely contributed to the accident, usually not. Your claim is then reduced proportionately. It is possible, however, that the split initially asserted by the insurer shifts markedly in your favour once the case has been reviewed – up to and including full liability on the other side. That applies, for example, where your own contribution to the accident turns out to be unprovable or insignificant.

What happens if it is no longer possible to establish how the accident happened?

Where neither side can be shown to bear the predominant fault, both sides are liable according to their respective operating hazard. This often works out as an equal, 50/50 split. But an expert report can frequently still bring clarity even months later – for example, from the damage patterns and impact marks.

Do I simply have to accept the other side’s insurer’s split?

No. The insurer sets its split unilaterally, in its own favour. That is not a binding legal determination. You can challenge the assessment, put forward your own evidence and, if necessary, have the split reviewed by a court.

How long do I have to bring my claims after the accident?

Compensation claims arising from a road traffic accident generally become time-barred within three years. As a rule, the period starts to run at the end of the year in which the accident happened and you became aware of both the damage and the person responsible. In practice, though, you should act considerably sooner, as evidence such as skid marks or witnesses’ recollections loses value over time.

Does the insurer cover the cost of a solicitor when the liability split is being resolved?

Where it is established that the other side is liable at least in part, the other side’s insurer must, as a rule, reimburse the cost of legal representation to the extent of that liability share. Whether, and to what extent, that applies in your particular case is something I clarify with you at the initial consultation. In doing so, I also check whether any existing legal expenses insurance can cover the cost.

Your next step

A liability split accepted too hastily can hardly be corrected later. That is why a legal review often pays off even before you reply to the insurer at all. I will look at your account of the accident, the investigation file and the photos. I will give you a realistic assessment of your chances of a better split and negotiate with the other side’s insurer on your behalf – and, if it comes to it, before the court. You can find more about my work on accidents and vehicle-related claims under Road Traffic Accidents. Get in touch for an initial consultation – ideally before any deadlines pass or evidence is lost.

This article provides general information and is no substitute for legal advice in an individual case. Last updated: 2026-09-11.

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