Deduction New for Old?
Introduction:
With regard to compensation for motorcycle protective clothing damaged in a traffic accident, case law initially almost predominantly assumes that deductions New for Old do not have to be made. This was also in line with the principle that applies to the problem of old for new anyway, i.E. That the injured party does not have to put up with such deductions in the case of items that generally retain their value throughout their entire service life, i.E. Are not routinely renewed at certain time intervals.
This is justified by the fact that, on the one hand, a motorcycle helmet in itself is not subject to any natural aging and devaluation process, but on the other hand, it can no longer function properly if it has been struck in an accident and has lost its built-in elasticity through de- and reformation.
In the case of other protective leather clothing, too, a loss of value due solely to the passage of time or normal use was predominantly denied.
However, this older case law has recently been called into question. Since this is even being done by higher regional courts, it remains to be seen to what extent there will be an impact on the legal findings of the courts of instance.
A further problem area arises from the question of whether the non-wearing of protective motorcycle clothing results in contributory negligence in the case of certain accident injuries.
Further links:
Accidents involving motorcycles – Motorcycle accidents
Motorcycle safety helmet
Suitable footwear
Full-face veil – Niqab
General:
Stralsund Regional Court v. 28.11.2006: § 21 a Abs. 2 StVO also stipulates that passengers on motorcycles must wear an officially approved safety helmet. In the case of serious head injuries, there is prima facie evidence that these were partly caused by the lack of a protective helmet, so that contributory negligence must be assumed at the expense of the passenger.
OLG Brandenburg v. 23.07.2009: If a motorcyclist suffered significant leg injuries in an accident for which he was not at fault, contributory negligence is to be assumed to a certain extent insofar as he was not wearing protective clothing on his legs, but was only dressed in cloth trousers. In contrast to the helmet obligation, there are no legal regulations that require every motorcyclist to wear protective motorcycle clothing in addition to wearing a helmet. However, contributory negligence on the part of the injured person can also be assumed if he or she fails to exercise the care that a prudent and reasonable person would exercise in order to avoid his or her own injury.
OLG Nuremberg v. 09.04.2013: in any case, there is currently no general traffic awareness that wearing motorcycle shoes is necessary for a motorcyclist's own protection. Therefore, contributory negligence on the part of an injured motorcyclist who was wearing sports shoes at the time of the accident is to be denied for this reason.
Cologne Regional Court 15.05.2013: Failure to wear adequate protective clothing regularly leads to the injured motorcyclist having to accept a claim-reducing contributory negligence from this circumstance alone. If, according to an expert assessment, the failure to wear motorcycle protective clothing (here: motorcycle boots and protective clothing on the legs) does not have a causal effect on the injuries suffered by the motorcyclist in a traffic accident (here: ankle dislocation fracture with soft tissue damage), the imputation of contributory negligence is out of the question.
LG Heidelberg v. 13.03.2014: The court is inclined to the opinion that a light motorcyclist is generally not obliged to wear protective clothing. There is no legal obligation to wear protective motorcycle clothing. § 21a para. 2 StVO only standardizes an obligation to wear a safety helmet. Contributory negligence is not present. There is no traffic perception that it is necessary to wear protective clothing when driving in built-up areas on a light motorcycle.
OLG Saarbrücken v. 12.03.2015: Since only the wearing of a protective helmet acc. § 21a para. 2 StVO is prescribed by law, it does not reduce the compensation that the injured party wore no motorcycle protective clothing apart from the helmet. This applies in particular if the wearing of protective motorcycle clothing would not have had a significant influence on the injuries of the injured party and thus would not have prevented them.
LG Frankfurt am Main v. 07.06.2018: A general traffic awareness to wear protective motorcycle clothing on the legs cannot already be derived from a reduced risk of injury. If a traffic awareness to this effect cannot be inferred from the actual circumstances and practices of the road users concerned (here: driver of a Harley Davidson), contributory negligence on the part of the injured motorcyclist cannot be established.
Deduction New for Old?
AG Lahnstein v. 31.03.1998: No deductions New for Old for motorcycle helmet u. -protective clothing
AG Bad Schwartau v. 17.06.1999: No deductions new for old for motorcycle helmet u. -protective clothing
AG Essen v. 23.08.2005: Due to the long service life of motorcycle clothing, a deduction new for old is not to be made for a 5-month-old motorcycle clothing damaged in an accident.
OLG Düsseldorf v. 20.02.2006: The fact that a motorcycle helmet can no longer be used for safety reasons as a result of an accident with a subsequent fall and an impact with a concrete bollard results from the fact that hidden defects cannot be ruled out as a consequence of this mechanical load on the helmet, irrespective of whether external damage to the helmet is detectable. The helmet must be exchanged. In the case of fictitious settlement, only the net price for the new purchase of a comparable motorcycle helmet with comparable visor can be claimed.
LG Duisburg v. 20.02.2007: Protective motorcycle clothing is also subject to depreciation due to wear and tear. The useful life is to be assessed at 5 years for a motorcycle helmet, 8 years for motorcycle gloves, 6 years for motorcycle boots and 12 years for the back protector. When determining the current value, the purchase price at the time of the accident must be taken as the basis.
LG Darmstadt v. 28.08.2007: When determining the compensable damage in the case of accident-related damage to the protective clothing of a motorcyclist, consisting of a leather jacket, helmet and boots, the injured party does not have to deduct "new for old" accept.
OLG Celle v. 19.12.2007: In the case of accident-damaged motorcycle protective clothing, the currently applicable new purchase prices are to be assumed. Deduct reasonable amounts for the deterioration in value that has occurred since purchase due to wear and tear, which according to. § 287 ZPO are to be estimated by the court.
OLG Karlsruhe v. 21.09.2009: The amount of the deduction for loss of value due to wear and tear is regularly to be assessed according to the ratio of the useful life of the old and the new object. The contrary view, sometimes expressed for motorcycle clothing, is not convincing. Rather, the general principles of damage law are to be applied in this respect. The special durability of motorcycle protective clothing can be taken into account within the framework of § 287 ZPO through a moderate approach to deduction amounts.
OLG Frankfurt am Main v. 08.02.2011: There is no second-hand market for used motorcycle clothing, so that the new value is to be reduced by way of benefit equalization in relation to the age to the average service life.
OLG Naumburg v. 25.05.2012: It can be left open whether a deduction "new for old" has to be made with regard to the compensation for the plaintiff's protective clothing for motorcyclists, because the amount of the deduction is regularly to be assessed according to the ratio of the useful life of the old and the new object (BGH VersR 1959, 399 = NJW 1959, 1078; Palandt/Heinrichs, BGB 71. Aufl. Before § 249 Rn. 127) or the opposite opinion (z.B. LG Darmstadt, DAR 2008, 89 m.W.N.)is to be followed. In this respect, the general principles of damage law are to be applied (OLG Karlsruhe VersR 2010, 491). According to § 287 ZPO, such a deduction is not to be made if the clothing was acquired only three months before the accident occurred and therefore, with regard to the special durability of motorcycle protective clothing, a deduction is not to be made after such a short period of wear.
OLG Munich v. 07.05.2012: Motorcycle clothing (helmet/boots) is undoubtedly subject to wear and tear like any other article of daily use. A loss of value, even if these objects are characterized by a longer durability and service life. This justifies making a "new for old" deduction when calculating damages. It is legally irrelevant whether the motorcyclist purchases and wears this clothing out of his own security interest. The same applies to the plaintiff's objection that the purchase of used motorcycle clothing is unusual and unreasonable. Apart from that, in the field of motorcycle helmets and boots, precisely because of the durability and the specific use, there is very well a market for second-hand goods, which might be more significant than the market for fashionable everyday clothing.