The person who caused the accident refuses to pay because of a pre-existing damage.
August 29, 2009 | 40,00 EUR | answered by Michael Vogt
Dear Sir or Madam,
Yesterday, my mother was shopping with my car. While she was properly parked in a parking space at the edge of the road, the driver's side mirror was hit and folded back up to the A-pillar. Unfortunately, my mother then mistakenly stated to the person who caused the accident that the mirror had already been slightly damaged before. The fact is that the "previous damage" consisted of the fact that the mirror had been hit a few weeks ago, causing the plastic on the underside of the mirror to protrude only 2-3mm, which had already been settled by the last person who caused the accident. After yesterday's accident, the cover has further cracked open, the mirror glass shakes very strongly while driving, and the mirror itself is wobbly in its mount.
After my phone call with the person who caused the accident yesterday, she will likely refuse to pay and refer to the "previous damage." My opinion is that since she hit the mirror of a parked car and the damage is significantly larger than before, she is also obligated to pay for the damages.
What do you think is the best course of action?
Best regards,
Dear inquirer,
Based on the facts you have provided and considering your input, I am pleased to answer your question as follows:
In the field of damages law, the principle of restitution in kind applies.
This means that the victim should be restored to the position they would have been in without the damaging event. Generally, the victim should not be enriched, i.e. they should not be in a better position than before the accident.
According to jurisprudence, in case of a pre-existing damage, the victim needs to provide an exact explanation of the pre-existing damage and show that it was properly repaired.
In your case, this means that in a legal process, you would have to demonstrate how the existing pre-damage was worsened by the accident and what the cost of repairing only this worsening is.
Since this is usually only possible if the individual damages can be clearly separated, I recommend that you come to an agreement with the party responsible for the accident or their liability insurance to cover a certain portion of the total repair costs of the mirror.
To do this, you should first obtain a cost estimate from your specialist workshop and then submit it to the liability insurance of the party responsible for the accident.
I hope that my answer has given you an initial overview of the legal situation.
Please note that this response, based on your information, is only a preliminary legal assessment of the situation. It cannot replace a comprehensive evaluation. By adding or omitting relevant information, the legal assessment may vary significantly.
Feel free to contact me through the follow-up option on this platform or via my email address.
For legal representation beyond this initial consultation, my law firm is also available to assist you.
I wish you a pleasant weekend and remain
Yours sincerely,
Lawyer Michael Vogt
