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Strict liability in the Netherlands

http://bicycledutch.wordpress.com/2013/02/21/strict-liability-in-the-netherlands/

It is a myth that is really only believed outside the Netherlands: “Because there is strict liability in the Netherlands, drivers are more cautious around cyclists, and that leads to more cycling” some even take this a step further adding “and because ‘we’ don’t have strict liability, we’ll never have such levels of cycling.”

Cycling in ‘s-Hertogenbosch in the 1980s. A decade before ‘strict liability’ became law, this was already the level of cycling and how the infrastructure looked.

There are a number of (false) assumptions that lead to such an assertion. The first being that drivers are always at fault when they are in a collision with a cyclist, regardless of how the cyclist behaved. As I will explain later, this is not the case, and that already takes away the largest part of the base of the assertion.

Secondly, it is believed that people, in this case first of all drivers, would change their behaviour because of this law. That is not true. This law only regulates who (or more correctly: whose insurance company) pays for damage after an unintentional accident. Unintentional accidents will always happen, simply because people are not flawless. Unfortunately there is no law that can change that fact.

Thirdly, it is extremely unlikely that people will cycle more because they know their damage will be financially compensated in case they are involved in an accident. In that respect it is telling that this law was implemented in the early 1990s: when cycling had been on the rise again for at least two decades. People will only cycle more when first and foremost they feel it is very unlikely that they will be involved in an accident at all.

The Dutch do indeed try to avoid accidents from happening in the first place. By designing a traffic environment that is safer for all road users. The policy to get to a safer traffic situation is called ‘sustainable safety’ and that is much more a real reason for so much cycling. It’s like with disease: it’s good to know there is a cure for an illness, but you’d rather not get sick in the first place. In this analogy ‘strict liability’ is the antidote, whereas ‘sustainable safety’ is the vaccine.

There is no equivalent for the phrase “strict liability” in Dutch. It is usually described by the general public (“as a driver you are liable when you crash into a cyclist”), or referred to by the article number and the name of the law: Article 185 of the Road Law (by legal professionals). The objective of this article in the law is to protect vulnerable road users from financial damage caused by drivers of motorised vehicles. Because due to the differences between motorised and non-motorised road users, it is very likely that the latter will suffer more and more severe damage and/or injuries when both are involved in a traffic accident. The law also considers the fact that drivers are obliged to be insured for such damage and non-motorised road users are not.

The driver always at fault? This flow chart makes clear it is not that simple! And this is an already simplified (and translated) version of the flow chart by the union of insurance companies in the Netherlands.

So when is article 185 of the Wegenverkeerswet (Road Law) applicable?

There has to be a traffic incident on the public road, involving a (driving) motor vehicle and a road user who is not using a motor vehicle. The article is not applicable when there is damage to goods or people transported in the motor vehicle, when there is damage to other motor vehicles, or when one or more stray animals are involved. The article is also not applicable for parked motor vehicles. If the article is not applicable other laws regulate who is liable for the financial consequences of the incident.

When art. 185 WVW is applicable, it means the motor vehicle user is liable for financial damage, unless that driver can prove the incident was caused by circumstances beyond his/her control. That will be hard, because the driver must then prove he/she drove flawless, or that his/her mistake was not the cause of the incident. If the mistake leading to the incident was made by the non-motorised road user, that mistake has to be so unlikely, that a motor vehicle user could not reasonably have considered it to happen. Failing to give way or jumping a red light (deliberately or by mistake) are not such unlikely events, they happen regularly, so drivers are not granted ‘circumstances beyond control’ very often.

Besides ‘circumstances beyond control’ the driver can also argue the non-motorised road user was at fault. This is only possible for road users from the age of 14. If that road user was indeed at fault, the driver is still liable for 50% of the damage. Dutch law makers considered this to be reasonable, because the non-motorised road user usually suffers more and more severe damage. That warrants this extra legal protection. A protection that is lost when it can be proved the non-motorised road user caused the damage on purpose, or his/her behaviour was so careless, that it can be seen as “recklessness verging on intent”.

Children under the age of 14 are always protected. Even if they were at fault, because they cannot be held fully accountable for their actions yet. With one exception: in case of intent, similar to that of people of 14 years or older, then the parents or legal guardians are liable for the damage.

If there is ‘fault’ on the part of the non-motorised road user, a judge will have to consider in how far the different parties in the incident did contribute to the damage (share in fault), and also if there are specific circumstances that should in all reasonability have significance to the determination of the share in fault (correcting for reasonability). There are no objective rules for the former. A judge will take a ‘perfect road user’ as a yard stick and see in how far the parties involved can be considered to be such a ‘perfect road user’ in the particular incident. For the latter, the severity of the damage to the non-motorised road user is very important. The larger that damage (especially injuries) the more likely the liability will shift to the driver. Whether the non-motorised road user is insured for the sustained damage/injuries will also be taken into consideration. If a judge considers it reasonable, the liability for the driver may be increased from the minimum of 50% to a higher percentage, sometimes even to the full 100%. The fact that the onus is on the driver, is because the driver is the one who voluntarily used a vehicle of which it is widely known that it may cause severe damage to other road users, who are not protected in a vehicle.

All in all it is safe to say that ‘Strict Liability’ does in a way protect cyclists and pedestrians, but it tries to be a fair answer to the inequity in the consequences of a crash. The driver must compensate the heavier burden a more vulnerable road user suffers, because of that driver’s decision to take part in traffic in a dangerous vehicle. But the law does consider the boundaries of reasonability for both driver and cyclist/pedestrian.

In 1997 the Dutch government tried to change the law. A bill was initiated in which the age restriction would be scrapped and the ‘under 14’ regulations would extend to non-motorised road users from the age of 14. That would have led to a ‘strict liability’ as many perceive it is: the driver would always be liable. But this proposed law change did not make it. In 1999 the bill was withdrawn.

When the law change was under consideration two comedians in the Netherlands made a funny parody. After a short fragment of a news broadcast, they used exaggeration to make fun of people who believed that the law would lead to reckless behaviour of cyclists. A behaviour that could not be corrected any more. They even went so far as to suggest that people would give up driving all together under such circumstances. Total nonsense of course! But it is an amusing illustration of what strict liability in the Netherlands is not.

This video shows a parody made in 1997 when there were plans to extend the law regulating who is liable for financial damages after a crash. A perfect illustration of what Strict Liability is not.

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