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Report No. 85

Road Traffic accidents in Germany-Some matters of detail.- The West German law concerning road traffic accidents is detailed and complicated. The following quotation from an article1 on West German legislation on this subject would be of interest, as showing the attention paid to certain matters of detail in order to facilitate proof:-

1. H.C. Horton Motor Traffic Accidents and West German Law, (1976) 126 New LJ 1201-1202.

"A German driver who is involved in a road traffic accident and knows that an accident has occurred is obliged not only to disclose his name, address, car registration number and insurance details but also to do all that he can to give a clear picture of the facts connected with the accident and to keep to a minimum any damage which could result therefrom [paragraph 71(2)3-The General Conditions of Motorised Vehicle Insurance].

This requirement can lead to practical difficulties since, to fulfil it totally, it is often necessary that the vehicles involved remain exactly where the accident occurred. Sometimes this is possible, until the police arrive. Yet, traffic conditions can necessitate that the vehicles be removed from the highway because they constitute an obstacle, dangerous to other road users. If such be the case it will suffice if the collision-position of the vehicles is clearly marked out on the road, together with any skid marks, before they are removed. Chalk markings, measurements taken with a tape-measure, a sketch or photograph will suffice.

The Federal Court of Justice (BGH) has decided that full compliance with paragraph 7 can be excused only if it is absolutely necessary to remove the vehicles in the interests of maintaining a safe flow of traffic (BGH II ZR 35/59). At night, for example, it would be unreasonable to leave collision-vehicles and injured persons on a busy road (BGH [V ZR 527/58). A German driver who, without good reason, does not comply fully with paragraph 7 runs the risk of losing his insurance indemnity, for, although his insurance company must meet third party claims, it will be entitled to recoup any sums paid out from the driver himself. A driver involved in a road traffic accident has a duty also to prevent further accidents arising from his mishap.

He must stay by his vehicle to warn other road users, and, when the police arrive, may only leave it when ordered to do so by the police (BGH VI ZR 195/59). Warning triangles should also be placed on the road at least 50m to 80m from the accident spot; at night they should be illuminated (BHH Vers R 69,668). Other road users must exercise due care if they see that an accident has occurred or signs which might so indicate, e.g. a stationary police vehicle with flashing blue warning light. On being involved in an accident and knowing that an accident has occurred there is a duty to stop. Paragraph 142 of the Penal Code (St GB), formerly headed Verkehrsunfellflucht ("hit and run" traffic accident), was revised in 1976 and is now entitled Underlaubtes Entfemen Vom Unfallort (illegal leaving of the scene of the accident).

The paragraph, which imposes criminal sanctions in certain circumstances, in primarily concerned with the procedure to be followed when an accident takes place so that civil law remedies can be the more easily pursued and the settlement of insurance claims facilitated. It states, inter alia, that any person whose conduct, in the given circumstances, may have contributed to the accident must remain at the scene of the accident. 'Any person' includes other road users, passengers and also pedestrians, if there is a possibility that they caused, or partially caused, the accident. All such persons must declare that they were involved in the accident, but none needs to say how he was involved.

In fact, the elimination, concealment or removal of evidence, even taking a drink to alter the alcohol level in one's blood to defeat a blood test, is not punishable under paragraph 142. (But such conduct makes one liable to a fine under paragraph 34 of the Strassenverkehrsordnung (Road Traffic Act). Also, the Federal Court of Justice has decided (BGH II ZR 53/65) that such action can result in the loss of one's insurance indemnity, since paragraph 1, supra, would not be observed). Even an incorrect statement as to one's own involvement in the accident is not punishable under paragraph 142. So, if, after an accident an involved party just stands there without saying a word he is liable to prosecution under paragraph 142. But, an involved person, who falsely describes his involvement, is not. In both instances, however, he would contravene the requirements of paragraph 7, supra.

Paragraph 142 recognises that there might well be circumstances in which one has to leave the scene of the accident at once, e.g. to transport an injured person to hospital or to obtain, medical attention for oneself (even if it should turn out that the injuries were only minor); perhaps to evade threatened violence from the other part. In such cases the formalities required by paragraph 142 must be completed as soon as possible later (unverzuglichnachtraglich), on returning to the police. If an accident takes place and no one else is present, a problem arises. For example, one bumps into an empty parked car or damages a fence on a lonely country road. An accident has taken place and there is a duty to stop. But for how long.

In the first example one might wait for half an hour, leave one's name and address under the windscreen wiper and then inform the nearest police station of one's involvement in an accident giving the registration of the damaged car. In the second example, one would not be expected to camp all night at the scene of the accident before trying to find the owner of the fence-one would inform the nearest police station. The test is: did the driver act reasonably and responsibly in the circumstances?

It should be added that if a driver acts as described in such circumstances as just instanced he would not fail to comply with paragraph 7, supra, (nor paragraph 142) and so would not lose his insurance protection (BGH II ZR 24/65). If, however, an accident occurs and no-one is injured except the driver himself or there is no damage to property other than that of the driver himself, there is no duty under paragraph 142 to stop nor to report the accident to the police (BGH St R 148/55) even if the driver was in any way unfit to drive at the time of the accident.

Paragraph 142 makes it clear that repentance is irrelevant. Thus, if a driver has an accident decides not to stop, then repents and returns to the scene of the accident 'to do the decent thing', the driver is guilty of illegally leaving the place of the accident and can be imprisoned for up to three years or fined. The fact of repentance may, however, lead the police not to prosecute or, if they do, result in a reduced sentence or fine. In 1974 there were 32,372 successful prosecutions under paragraph 152.

When a road traffic accident occurs it is always advisable to call the police to the scene of the accident. The police are obliged to investigate any accident, being considered 'to be in the position to ascertain the necessary facts with the requisite expertise and reliability'. Even if the accident damage is only to property (Sachschaden) and is of a minor nature the police cannot refuse to investigate (Bayr OLG lb st 288/65). When the police arrive the parties to the accident are not obliged to make any statement (except to fulfil the requirements of paragraph 142) and are advised to check the accident sketch and report made by the police since, in subsequent proceedings, whether civil or criminal, there will be a rebultable presumption by the court that both documents are accurate and complete.

In cases where only very minor damage is caused, e.g. a dented mudguard, the participants may decide to settle repair costs between themselves. This could be unwise on the party of the defaulting driver, since the other driver might still decide to report the accident to the police, and to the other party's insurance company, especially if be discovers the damage to be more extensive than originally diagnosed. In such a case he would put himself in a much stronger position than the other party since he has asked the police (the proper authority) to investigate the collision.

The driver who was willing to settle would also be acting contrary to his insurance contract in that he, by paying or promising to pay for the damage he caused, contravened paragraph 711(1) of the General Conditions of Motorised vehicle insurance which states: On causing damage which involves liability to third parties the insured person is not permitted, without the previous consent of the insurer, to admit or to satisfy a claim totally or partially. In all but exceptional circumstances he might well lose the protection of his insurance company (paragraph 711(2) of the General Conditions and BGH 11 ZR 173/63)".

Claims for Compensation under Chapter 8 of the Motor Vehicles Act, 1939 Back

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