"We assess contributory negligence of 30%" — Decoder

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What you have just received — verbatim

Typical variants of the same letter:

"We assume a contributory-negligence ratio of 30% to your detriment. Our settlement offer accordingly amounts to 70% of the sum originally claimed."

"Given the traffic situation and your conduct at the accident scene, we see contributory negligence of 25%."

"To settle the dispute, we offer a 70:30 split in our favour."

"Full 100% settlement is not possible owing to the contributory-negligence shares."

Three features that are almost always present:

• No concrete facts — what exactly you are supposed to have done wrong is left open.
• No causation argument — the link between the alleged conduct and the actual damage is missing.
• A blanket ratio — 20, 25, 30, 50% — figures pulled from the air, not derived from the facts.

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What is really behind it

1. Damage reduction as a volume business

Insurers know: even if only 30–40% of injured parties accept a blanket ratio, that is a multi-million-euro business. On a €10,000 claim with a 30% ratio = €3,000 saved per accepted case. Statistically worthwhile if the strategy is pushed through in a standardised way.

2. Staging a reversal of the burden of proof

Insurers phrase things as if you had to prove your freedom from fault. Legally it is exactly the opposite: for contributory negligence the insurer bears the full burden of proof — concrete facts plus concrete causation linked to the damage. Anyone who does not know this falls for it.

3. Setting a negotiation anchor

As soon as the figure "30%" is on the table, the discussion that follows revolves around that figure. Injured parties typically haggle downwards — say, to 15%. In reality, in many cases the ratio should be 0%, because a prima-facie evidence (Anscheinsbeweis) applies or because concrete facts are missing.

4. Exploiting negotiation fatigue

Anyone exhausted after 8 weeks of insurance correspondence is more likely to accept a 30% reduction than to litigate. That is priced in.

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What the case law says about this

§ 254 BGB — Contributory negligence of the injured party

"If fault on the part of the injured person has contributed to the occurrence of the damage, liability in damages as well as the extent of the compensation to be paid depends on the circumstances, in particular on the extent to which the damage was caused mainly by one or the other party."

The burden of proving the facts from which contributory negligence arises lies with whoever relies on the contributory negligence — that is, the insurer. This allocation of the burden of proof is settled BGH case law.

Prima-facie evidence (Anscheinsbeweis) (see Anscheinsbeweis)

In clear-cut constellations, prima-facie evidence (Anscheinsbeweis) applies in your favour:

• Rear-end collision: prima-facie evidence points to 100% fault on the part of the driver behind.
• Right-of-way violation: prima-facie evidence speaks against the party who breached the right of way.
• Red-light violation: prima-facie evidence applies against the party who ran the red light.

The insurer can rebut prima-facie evidence only with concrete facts — not with blanket assertions.

§ 17 StVG — Shared causation between vehicles

In accidents between vehicles, § 17 StVG is additionally relied upon — and here, too, only the concrete allocation of causation counts, not a blanket attribution.

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What you do now — concretely

💡 The most important rule

Reject the blanket ratio. Demand concrete facts. Never negotiate downwards before the ratio has been legally substantiated at all.

🛠 Three-point response

1. Dissect rather than negotiate For each ratio assertion, demand: Which concrete traffic violation am I being accused of? Which facts establish it? What causation exists between the violation and the actual damage? What evidence?

2. Highlight the burden of proof Make clear in writing: the burden of proof under § 254 BGB lies with the insurer. No proof, no contributory negligence.

3. Secure your own evidence Request the police report, secure witness statements, take photographs of the accident scene, and obtain dashcam footage where available. In clear-cut constellations: set out the prima-facie-evidence reasoning in writing.

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Letter template — Rejecting a blanket ratio

Dear Sir or Madam,

I refer to your letter of [Datum] concerning the claim
with claim number [Nummer].

I firmly reject your blanket assertion of a contributory-negligence
ratio of 30%. Your letter contains no concrete facts that could
establish contributory negligence on my part.

The burden of proving an alleged contributory negligence under
§ 254 BGB lies entirely with you as the insurer. I call upon you
to inform me, by [Datum + 4 Wochen] at the latest, in concrete terms:

1. Which concrete traffic violation you are accusing me of,
2. Which concrete facts substantiate this accusation,
3. What concrete causation exists between the alleged violation and
   the amount of damage that has occurred,
4. On which evidence (police report, witnesses, expert
   appraisal) you specifically rely.

Without these concrete particulars, your assertion of contributory
negligence is unsubstantiated and cannot be accepted. I request
full settlement in the amount of [Betrag] € within 4 weeks.

Upon expiry of the deadline you will be in default/delay under
§ 286 BGB. Default interest (§ 288 BGB) and lawyer's fees
(BGH VI ZR 235/13) will be asserted.

Yours faithfully

[Unterschrift]

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What the insurer is likely to do next

Reaction A — Minimal additional reasoning

"Owing to your excessive speed, we see 30% contributory negligence."

Your response: Concrete speed? Concrete weather facts? Who established this, and how? Evidence? Where the reasoning is vague, keep rejecting it.

Reaction B — A "dispute-settlement" ratio

"We are reducing it to 20% to settle the dispute."

Your response: Reducing the ratio is no substitute for proof. If no concrete facts are stated, you stay at 0%.

Reaction C — Turning the threat of litigation around

"If you do not accept, we will refer you to the courts."

Your response: Going to court is your right — and in a clear-cut constellation it is your best card. The insurer bears the lawyer's fees.

Reaction D — The insurer's expert as "proof"

"Our appraiser confirms the contributory negligence."

Your response: The insurer's appraiser is not neutral. You are entitled to a freely chosen expert of your own. Where the appraisals conflict, a court-appointed expert decides in the event of litigation.

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Frequently asked questions

What is a "fault-catalogue ratio" (Quotenkatalog-Quote)? The ADAC and the German Bar Association publish fault catalogues (Quotenkataloge) with typical contributory-negligence ratios for standard constellations. These are, however, guidance aids for courts, not binding rules, and no pre-emption of the burden of proof.

Do I even have to negotiate with the insurer? There is no duty to negotiate in the strict sense. You can sue directly — for clear-cut facts that is often faster than months of correspondence.

What if the police ticked "fault on both sides"? Police notes are indicators, but not a binding attribution of fault. In civil law, what counts is the outcome of an independent taking of evidence — police findings can be challenged.

Is it worth suing over contributory negligence for small sums? For claims under €750, the order-for-payment procedure (Mahnverfahren) is often cheaper than litigation. From €750, a legal review is worthwhile. Don't forget: if you succeed, the insurer bears all the costs.

I really was partly at fault — what then? Where contributory negligence does in fact exist (e.g. not wearing a seatbelt, admittedly driving too fast), a ratio is recognised. But: even then the insurer must give concrete reasons for the amount — blanket figures remain open to challenge in that case too.

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If you don't know how to proceed

Contributory-negligence disputes are among the most lucrative disciplines for specialised traffic-law firms. Empirical figures: 60–80% of all blanket ratios can either be overturned entirely or substantially reduced. Where the accident was not your fault, or predominantly not your fault, the opposing insurer pays the lawyer's fees.

→ Start a free claim assessment

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Sources

• Bürgerliches Gesetzbuch § 254 — gesetze-im-internet.de/bgb/__254.html
• Straßenverkehrsgesetz §§ 7, 17, 18 — gesetze-im-internet.de/stvg
• BGH case law on the burden of proof for contributory negligence, settled case law
• BGH, judgment of 18.07.2017, VI ZR 235/13 (lawyer's fees as damage caused by default)
• Hentschel/König/Dauer, Straßenverkehrsrecht
• Greger/Zwickel, Haftungsrecht des Straßenverkehrs
• ADAC Quotenkatalog (for orientation)