Electronic copy available at: https://ssrn.com/abstract=2975796

1

ROAD TRAFFIC LIABILITY IN THE NETHERLANDS

APRIL 2017

Michelle C W Slimmen & Willem H van Boom

PART I: GENERAL QUESTIONS

I. BRIEF OVERVIEW

1 According to certain provisions of the Dutch Civil Code, set down in art. 6:95 BW

onwards, a victim of a road traffic accident has several ways to claim financial

compensation for damage that has arisen from the accident. These are specified below.

A general fault-based liability claim may be made against the driver, relying on

article 6:162 BW;

For certain accidents, mostly involving motor vehicles on the one hand and

pedestrians or cyclists on the other, there is a special quasi-strict liability regime in

terms of which the keeper or owner of the motor vehicle is liable (article 185 WVW –

The Road Traffic Act);

If it is established that a device or product, such as a vehicle or bicycle, is defective,

either the keeper or the manufacturer may be held strictly liable in terms of article

6:173 and 6:185 BW respectively;

Under certain conditions, the authority responsible for the road may be at fault (art.

6:162 BW) or strictly liable (art. 6:174 BW), if it is established that the road was

unreasonably unsafe when the accident occurred.

The authors are assistant and professor of civil law, Leiden University, the Netherlands. In this report, we build on earlier

country reports (co-) authored by the second author. Where relevant, we refer to these earlier publications.

Electronic copy available at: https://ssrn.com/abstract=2975796

2

It is also possible, if the victim of the accident was in the course of his employment at

the time the accident occurred, that the employer might also bear (some)

responsibility.

2 In practice, the provisions of article 185 WVW, the Dutch Road Traffic Act, are mostly

‘victim friendly’. However, the majority of road traffic accidents involve two motor

vehicles; a situation to which article 185 WVW is not applicable.

3 In order to register a motor vehicle, the keeper is obliged to take out a mandatory motor

vehicle insurance. A victim also has a direct claim against the liability insurer. There are

no limitations to the compensable damages, provided there is a causal connection between

the act that caused the injury and the damage or loss sustained.

4 Apart from tort law, victims may be eligible for benefit under the Dutch social security

system. Social security benefits usually cover both ‘risque social’ and ‘risque

professionel’, The levels of compensation are however, much lower than in tort law.

Additionally, benefits do not cover any non-pecuniary losses. Both private indemnity

insurance and public social security insurance have rights of recourse against the

tortfeasor and his liability insurance policy, for any amounts paid to the victim.

II. REASONS FOR AND AIMS OF A SPECIFIC ROAD TRAFFIC

ACCIDENT SYSTEM

5 In the Netherlands, a specific liability system for road traffic accidents involving a

motorised and a non-motorised party is laid down in art. 185 Wegenverkeerswet (WVW;

The Road Traffic Act). The main reason for the development of this specific system is

that a non-motorised party, notably a pedestrian or a cyclist, is considered to be the

weaker and more vulnerable party. The legislature and the Supreme Court felt it was their

duty to offer protection to these more vulnerable parties against the dangers related to

road use by motor vehicles., Together, therefore, they created a stricter civil liability1,

resulting in a form of quasi-strict liability. Apart from this specific regime, there is the

1 See art. 185 WVW and Hoge Raad der Nederlanden (Supreme Court of the Netherlands; HR), April 16, 1937, Nederlandse

Jurisprudentie (Dutch Case Law; NJ) 1937/490, HR 6 February 1987, NJ 1988/57 (Saskia Mulder) and HR 28 February

1992, NJ 1993/566 (IZA/Vrerink).

3

general fault-based liability (article 6:162 Burgerlijk Wetboek, the Dutch Civil Code;

BW) which also applies to road traffic accidents. Whenever an accident occurs between a

motor vehicle and a cyclist or pedestrian, liability may be based on either article 185

WVW or article 6:162 BW. If the accident occurs between two motor vehicles, two

cyclists or a cyclist and a pedestrian, only article 6:162 BW is applicable. The main

differences between the specific road traffic accident liability under art. 185 WVW and

the normal tort law regime are firstly, the reversal of the burden of proof and secondly,

the restriction of the force majeure defence. The aim of providing protection to the

vulnerable party has also given rise to specific judicial application of the contributory

negligence doctrine (notably the use of the billijkheidscorrectie2) and the application by

analogy of certain principles in cases where motor vehicle owners lodge claims against

pedestrians or cyclists (reflexwerking or ‘mirrored application’3).

6 The law of damages aims at full compensation for the damage sustained, both in respect

of pecuniary loss and non-pecuniary loss. This means that actual damage must be

compensated, no more and no less. To this end, mandatory motor vehicle liability

insurance has been introduced. An injured party is entitled to claim compensation directly

against the motor vehicle insurer. This protects him from any solvency problems and

smoothens the claim procedure. 4 The mandatory insurance scheme is complemented by a

Waarborgfonds (Guarantee Fund) which steps in to compensate in the case of an accident

caused by an uninsured or unknown driver.

7 The Dutch market for motor vehicle insurance is relatively open and competitive. It is

free from premium regulation. Insurers are permitted to use experience rated insurance

but there is no legal obligation to do so. In practice, there is a self-regulatory ‘bonus

malus’ system of stepped premium ladders based on customers claim history. The basis of

this system is a standardised information exchange between insurance companies, which

is exempt from restrictions, which would otherwise exist under competition law.

2 HR 18 Feburary1992, NJ 1993/566 (IZA/Vrerink). 3 H.A. Bouman, GS Onrechtmatige Daad 6.3, onderdeel III Verkeersrecht en WAM, note 168.1. 4 Art. 6 lid 1 WAM.

4

III. THE VARIOUS COMPENSATION SYSTEMS

A. COMPENSATION BASED ON LIABILITY UNDER TORT LAW

A. 1. Fault-based liability

I. General requirements

8 The general rule in respect of fault-based liability (art. 6:162 BW) applies to damage

arising out of road traffic accidents. It consists of four elements. There must be an

unlawful act, the act has to be imputable to the actor, there requires to be damage and a

causal link between the damage and the unlawful act. Article 6:162 BW is applicable to

all forms of road traffic accidents: motor vehicle vs. motor vehicle, motor vehicle vs.

cyclist, motor vehicle vs. pedestrian, cyclist vs. cyclist and cyclist vs. pedestrian.

9 Art 6:162 BW defines three types of wrongful acts. Firstly, the infringement of a

subjective right. Secondly, an act or omission violating a statutory duty and lastly,

‘conduct contrary to the unwritten standard of conduct seemly in society’, the so-called

maatschappelijke betamelijkheid.

10 In traffic accident cases, the role of the Highway Code (Reglement verkeersregels en

verkeerstekens (RVV 1990; Road Traffic and Traffic Signs Regulation)) is essential. The

code serves as statutory rules for the application of art. 6:162 BW. Violation of a statutory

rule aimed at protecting the interest that was in fact damaged by the violation, constitutes

a wrongful act vis-à-vis the person who has suffered the damage. Since most traffic rules

aim to achieve orderly participation and therefore the avoidance of accidents, the

infringement of Highway Code rules is more or less equal to a tortious act against fellow-

road users.

11 Depending on the particular facts and circumstances, traffic liability may also be based

on the breach of an ‘unwritten standard of proper conduct’. This latter type of

wrongfulness has essentially the same function as the tort of negligence in common law.

According to case law, a great many factors determine wrongfulness, such as

foreseeability of the accident, the degree of blameworthiness, the opportunity for accident

avoidance. A prima facie wrongful act is considered not to be wrongful whenever force

majeure, self defence or a statutory provision provides justification for it.

5

12 The second element, that of imputability, is divided into three alternative grounds for

imputation. The first of these is currently the most important namely, that the person can

be blamed for his act (schuld [fault, blameworthiness]), or the act or its cause requires to

be imputed to him, either on a statutory basis, or plainly because the verkeersopvattingen,

an unwritten source of legal and moral opinion, as it is expressed in case law, require this.

So, tortious liability is incurred not only in case of subjective fault, but also in case of

objective ‘accountability’. Fault is generally seen as a moral or legal evaluation of the

actor, while the requirement of wrongfulness (i.e. the unlawfulness requirement) is

supposed to be directed at the act itself. One should first judge an act and, possibly,

conclude that it is, as such, an unlawful act. Only then should one judge the actor and

decide whether he was at fault by committing the unlawful act. When one judges

blameworthiness, one decides whether the person acting could and should have acted in a

different fashion.5 Generally speaking, a reasonableness test is performed. Would a

person acting reasonably have behaved in a similar fashion?6 This might lead in context to

the following definition of ‘fault’: the legal blameworthiness of a person committing an

unlawful act that could and should have been avoided.7 The ‘fault’ requirement is set at a

high, objective standard.8 Usually, therefore, fault is only absent when the driver cannot

be blamed in any respect whatsoever. Besides compliance with traffic regulations, a

driver should also anticipate errors of other traffic participants.9

13 In the case of breach of traffic rules, a broad accountability of the consequences is

justified to guarantee road safety. This quickly results in ‘imputable wrongfulness’ on the

part of the injurer. Whenever unlawfulness has been established, the fault requirement

will usually present no difficulties. In the few cases in which it does, namely,

blameworthiness of young children and disabled individuals, the legislature has provided

a solution.10 In art. 185 WVW cases, there is a specific defence of ‘overmacht’ which

5 See, e.g., HR 9 December 1966, NJ 1967/69. 6 This section was derived from M. Moncada Castillo & W.H. van Boom , ‘Economic Loss caused by GMOs in the

Netherlands’, in: B.A. Koch (ed.), Economic Loss Caused by Genetically Modified Organisms – Liability and Redress for

the Adventitious Presence of GMOs in Non-GM Crops, Springer 2008; W.H. van Boom & S.D. Lindenbergh (Dutch case

report), Case Studies, in: L. Bergkamp, M. Faure, M. Hinteregger, N. Philipsen, Civil Liability in Europe for Terrorism-

Related Risk, Cambridge: C.U.P. 2015 (Cambridge Studies in International And Comparative Law series), p. 114-184. 7 Note, however, that neither a statutory definition nor a generally accepted doctrinal definition of ‘fault’ exists. 8 HR 11 November 1983, NJ 1984/331 (Meppelse ree). 9 W.H. van Boom, ‘The Netherlands’, in: B.A. Koch & H. Koziol (eds.), Compensation for Personal Injury in a Comparative

Perspective Vienna/New York: Springer 2003, p. 233. 10 Art 6:164 and 165 BW.

6

literally translates as ‘force majeure’ but which actually includes ‘complete absence of

any fault’.11

14 According to the law governing claims for damages (article art 6:95 BW onwards), both

pecuniary and non-pecuniary losses are considered to be ‘damage’ in so as far as they are

causally connected to the event that gave rise to liability (art. 6:98 BW). Compensation is

generally paid in money. According to Dutch law, the obligation to pay damages is of a

compensatory nature. Punitive, exemplary, or nominal damages do not exist as a separate

type of damages.

II. Damages: pecuniary losses

15 The aim to secure compensation in full implies, in personal injury cases, that effectively

all pecuniary loss is to be compensated, including the cost of medical treatment,

reasonable cost of supplemental care, increased expenses due to the physical impairment,

actual loss of income, loss of future increase of income, for example, if the injuries impair

possible career prospects and other (future) damage. Damage more serious or persisting

for a longer period than average due to, for instance, the victim’s predisposition12, also

require to be compensated.13

16 As far as future damage is concerned, the courts are permitted to award damages either as

a lump sum or as a periodic allowance (art 6:105 BW). In personal injury legal practice,

both injurer and injured party generally prefer the payment of a lump sum, partly for the

purposes of avoiding income tax. The payment for eventual damage in the future by

means of a lump sum is calculated on the basis of reasonable projections of how the

future would have evolved if the injury had not occurred.14

17 Art 6:96 BW expressly states that pecuniary loss also includes reasonable costs incurred

in order to prevent or limit damage which may reasonably be expected to result from an

occurrence for which another person is liable, to establish liability and the amount of

damage or to receive a voluntary payment from the party liable.15

However, legal fees and

11 H.A. Bouman, GS Onrechtmatige Daad 6.3, onderdeel III Verkeersrecht en WAM, note 9-10. 12 In the case ABP/Van Stuyvenberg (HR 4 November 1988, NJ 1989/751) the Supreme Court copied the English adage ‘The

tortfeasor must take the victim as he finds him’. 13 HR 13 February 2015, ECLI:NL:HR:2015:308, Rechtspraak van de Week (Jurisprudence of the Week; RvdW) 2015/318. 14 The Civil Code calls this the afweging van goede en kwade kansen (discounting good and bad chances); art 6:105 BW. See

HR 15 May 1998, NJ 1998/624; HR 14 January 2000, NJ 2000/437. 15 Note that both the incurring and the amounts of these costs must be reasonable.

7

judicial costs incurred in the course of civil proceedings are not compensated in full in

every respect because a specific statutory regime with fixed amounts applies.

18 Factors such as the degree of blameworthiness on the part of the party who is liable may

be taken into account to a certain extent, within the framework of art 6:98 (causation) or

6:109 (mitigation) and thus affect the amount of damages due.16

Art 6:97 gives the court

the freedom to determine whether the damages require to be calculated in a concrete or an

abstract manner. In principle, awards of damages for personal injury are calculated in a

concrete way. Abstract calculation is the rule in case of damage to property. In this case

the damages will be equal to the loss of value of the property or the normal costs of

repair. Courts have a wide discretion concerning valuation.17

19 Where the injured party is killed in the road traffic accident, the rights of family are

essentially limited to burial costs and loss of financial support from the deceased (art.

6:108 BW).

III. Non-pecuniary losses

20 Art 6:106 BW is the key provision in respect of ‘non-patrimonial damages’. It allows

awards of non-patrimonial damages in a limited number of cases. For road traffic

accidents, the most relevant of these are:

in cases where the party liable had the intention to inflict immaterial harm;

in cases where physical, personal injury, such as pain and suffering, loss of

limbs or permanent disfigurement has been suffered;

in cases where there has been harm to the person in another way (aantasting

van de persoon op andere wijze); courts have been quite restrictive in

recognising such ‘harm to the person in any other way’.

21 In the case of personal injury, non-pecuniary loss is assessed in accordance with the

principle of fairness. Relevant factors include, inter alia, the nature, seriousness, and

permanency of the injuries; the extent and duration of necessary medical treatment; the

extent to which the claimant will be able to come to terms with what has happened to

16 This section was derived from Van Boom 2003. 17 This section was derived from Van Boom and Lindenbergh 2015.

8

him; and the nature of the liability and the degree of fault on the part of the liable party.18

When determining the amount of damages, the court will generally look at awards in

similar cases granted by other Dutch courts and may also take into account awards by

foreign courts.19

Although the courts have a wide margin of discretion in assessing the

amount of damages for non-pecuniary loss, in practice a certain standardisation takes

place with respect to personal injury cases on the basis of the systematic overview of case

law published in the legal periodical Verkeersrecht (Traffic Law). The Dutch courts are

not renowned for their generosity when it comes to amounts of compensation granted for

non-pecuniary loss.20

IV. Causal link

22 Usually, causation is a two-step test. First, a simple but for test (conditio sine qua non ;

hereafter: CSQN) is applied on the balance of probabilities. Then, a reasonableness test is

applied pursuant to art. 98 BW, to determine whether it is justified to attribute the

consequences of the accident to the tortious act that caused the accident. Courts tend to

stretch the limits of causal connection very far whenever bodily harm is involved and

somewhat less when damage to property is concerned and least of all, in the case of loss

related to neither of the two categories aforementioned, in other words, in relation to pure

economic loss.21

V. Burden of proof

23 In general, the injured party has to prove a) the facts that give rise to liability, and b) the

causal connection between these facts and the damage incurred (CSQN).22 Thus, the

claimant has to prove the facts underpinning his claim regarding the wrongful act

committed. According to art. 150 of the Dutch Civil Procedure Code, the burden of proof

may be reversed by the court if a special (statutory) rule so requires or, if reasonableness

18 See Lindenbergh, 1998; Lindenbergh, 2008. This section was derived from M.H. Wissink & W.H. van Boom, ‘The

Netherlands’, in: U. Magnus (ed.), Unification of Tort Law: Damages, Kluwer Law International 1997, Van Boom and

Lindenbergh 2015. 19 See HR 8 July 1992, NJ 1992,/714 (AMC/O) 20 This section was derived from Wissink and Van Boom 1997, Van Boom and Lindenbergh 2015. 21 This section was derived from Moncada Castillo and Van Boom 2008, Van Boom and Lindenbergh 2015. 22 I. Giesen, Bewijs en aansprakelijkheid – Een rechtsvergelijkend onderzoek naar de bewijslast, de bewijsvoeringslast, het

bewijsrisico en de bewijsrisico-omkering in het aansprakelijkheidsrecht, Boom Juridische Uitgevers 2001, p. 12.

9

and fairness require such a reversal.23 Art. 185 WVW offers an example of a statutory

reversal of burden of proof.

24 In practice, the so-called omkeringsregel (reversal rule) is of decisive importance. The

reversal rule, which has been developed in case law, holds that if, on the one hand, there

is a breach of a specific rule, be it a traffic regulation rule or an uncodified standard of

conduct, the objective of which is to prevent specific danger which is normally increased

by breaching that rule,24 and furthermore, that ‘specific danger’ has, in fact, materialised,

the causal link between the damage and the act is assumed.25 The defendant may rebut

this assumption by disproving CSQN. For instance, in drunk-driving accidents, the party

who breached traffic regulations that prohibit the consumption of alcohol with the aim of

avoiding the likelihood of accidents will need to bring evidence that the breach was

unrelated to the collision. Generally, if there is evidence of a collision and a breach of a

traffic rule by the defendant, then there is a presumption of CSQN between the two.

VI. Contributory Negligence

25 Art. 6:101 BW defines that which constitutes contributory negligence. Contributory

negligence is generally defined as the imputable failure of the injured party to take

‘reasonable care’ of his own interests however, the scope of art 6:101 BW is actually

wider. It merely requires that the damage is ‘partly caused by an occurrence that can be

imputed to the injured party’. Consequently, not only negligent acts of the injured party

himself can constitute contributory negligence but also the acts of persons for whom the

injured party bears vicarious responsibility. Also, causal contributions by objects or

animals owned by the injured party may be imputed as contributory negligence. Parental

negligence is not imputed to a child as contributory negligence.26

26 Art. 6:101 BW consists of three stages: (1) imputable occurrence, (2) primary

apportionment and (3) equitable adjustment. To illustrate circumstances that were

considered to be ‘imputable occurrence’ the failure to wear a seatbelt27, consciously

23 Giesen 2001, p. 98. This section was derived from Van Boom and Lindenbergh 2015. 24 HR 16 June 2000, NJ 2000/584 (St. Willibrord/V). 25 HR 19 January 2001, NJ 2001/524 (Ter Hofte/Oude Monnink Motors), HR 29 November 2002, NJ 2004/305. 26 HR 31 May 1985, NJ 1986/690. 27 See e.g. HR 1 June 1990, NJ 1990/578 (Ziekenfonds Gouda-Woerden/La Grand).

10

getting into a car with a driver who is under the influence of alcohol28, cycling without

holding the handles29 and using a motorbike without use of a helmet30 may be mentioned.

27 If an imputable occurrence is established, the primary apportionment test is based on the

balancing of the parties’ respective ‘causal contribution’ to the occurrence of the accident

or the aggravation of the damage.31 However, courts may decide that a different

distribution is more equitable when fairness so determines. This is referred to as the

billijkheidscorrectie (an equitable adjustment of the outcome of the primary

apportionment result).32

28 Concerning road traffic accidents involving motor vehicles, the Supreme Court has

established fixed minimum percentages for the benefit of injured cyclists and pedestrians.

These fixed percentages imply that vulnerable victims of road traffic accidents are

entitled to claim a certain percentage of the damages sought, notwithstanding the fact that

they were contributorily negligent.

29 From the early 1990s, the Supreme Court has shown particular concern for the legal

protection of cyclists and pedestrians in the context of the serious injuries they may incur

as a result of collisions with motor vehicles. First of all, the Supreme Court offered

children up to the age of 14 special protection by practically excluding the defence of

their contributory negligence.33 The effect of this special protection is called, in short, the

‘one hundred per cent rule’: children up to 14 years of age receive compensation

amounting to 100 per cent of their damages, even if they were contributory negligent in

causing the accident. In the case of intent or wilful and conscious recklessness of a young

cyclist or pedestrian, the 100 per cent rule does not apply.34

28 Rb Rotterdam 19 May 2004, NJF 2004/517. 29 Hof Arnhem 12 February 2008, NJF 2008/178. 30 See e.g. HR 4 June 1976, NJ 1977/4 (Van Geffen/Staat). 31 This section was derived from W.H. van Boom, ‘Contributory Negligence under Dutch Law’, in: U. Magnus & M. Martin-

Casals (eds.), Unification of Tort Law: Contributory Negligence, Kluwer Law International 2002. 32 This section is derived from Van Boom 2003; W.H. van Boom & M. Moncada Castillo, ‘The Child as a Victim: The

Netherlands’, in: M. Martin-Casals (ed.), Children in Tort Law Part II: Children as Victims, Vienna/New York: Springer

2007; Van Boom and Lindenbergh 2015. 33 HR 1 June 1990, NJ 1991/720 (Ingrid Kolkman); HR 31 May 1991, NJ 1991/721 (Marbeth van Uitregt); The Supreme

Court has resisted the temptation of stretching the age limit of 14 years, see HR 24 December 1993, NJ 1995/236. 34 Here, ‘intent’ and ‘wilful recklessness’ are applied restrictively; one can be considered to have acted intentionally if one

acted consciously with the intent to cause the accident (e.g., murder/ suicide attempt); wilful or conscious recklessness

implies deliberate action with knowledge of the ensuing consequences.

11

30 Although some lawyers have advocated the extended application of the 100 per cent rule

to include other vulnerable groups such as senior citizens or the disabled,35 the Supreme

Court has rejected this plea.36

31 In 1992, a decision of the Supreme Court turned its focus to the protection of cyclists and

pedestrians of 14 years of age and over.37 In this decision, the Supreme Court ruled that

cyclists and pedestrians of 14 years of age and over deserve protection as well. By means

of a general rule, such a victim is entitled to claim at least fifty per cent of the damages,

even if his contributory negligence would amount to more than fifty per cent. This ‘hard

and fast’ rule (in short it is called ‘the fifty per cent rule’) goes well beyond the scope of

article 6:101 BW. The ‘fifty per cent rule’ is not dependent on the facts of the case and no

reference to the actual proportion of the contributory negligence is considered. The ‘fifty

per cent rule’ should therefore be understood as a political signal of the Supreme Court to

the legislature for it to intervene and legislate on the legal protection of physically

unprotected traffic participants.38 To date, the legislature has not intervened.

32 The fifty per cent rule does not apply in the case of intent or wilful recklessness of the

injured cyclist or pedestrian. An example of wilful recklessness involved a pedestrian

walking on a dark road on a rainy day wearing mostly dark coloured clothes. The fact that

the pedestrian was under influence of alcohol, which probably caused his recklessness,

did not affect the decision since the victim was deemed to be accountable for his

excessive alcohol use.39

B. 2. No-fault liability: Strict liability and other liability systems

I. Motor vehicle vs. cyclist or pedestrian

33 In 1929, in order to protect vulnerable ‘non-motorised public road users’ against the

inherent dangers of accidents with motorised vehicles the Dutch legislature introduced a

35 See e.g. L.G. Eykman, ‘Recht en billijk’, VR 1992/7-8, p. 173; H.A. Bouman, GS Onrechtmatige Daad 6.3, onderdeel III

Verkeersrecht en WAM, note 256. 36 See HR 28 February 1992, NJ 1993/566 (IZA/Vrerink); H.A. Bouman, GS Onrechtmatige Daad 6.3, onderdeel III

Verkeersrecht en WAM, note 255.3. 37 HR 28 February 1992, NJ 1993/566 (IZA/Vrerink). See also HR 24 December 1993, NJ 1995/236 (Anja Kellenaers). 38 This section was derived from Van Boom 2002. 39 HR 30 March 2007, NJ 2008/64.

12

dedicated liability regime for the protection of non-motorised road users. In 1994, this

regime was recodified into the current art. 185 WVW.

34 The main added value of art. 185 WVW is that in the case of a road traffic accident

involving a motor vehicle on the one hand and a ‘non-motorised public road user’ on the

other,40 liability is, prima facie , placed on the owner of the motor vehicle for the

(presumed) tortious act of the vehicle driver.41 The owner may only avoid liability if he

proves ‘force majeure’ in respect of the driver. This concept is understood to reflect the

complete absence of any tortious responsibility on the part of the driver for the accident.

Such cases of complete absence of fault are rare.42 The protective scope of liability was

further extended by a Supreme Court decision ruling that mechanical defects relating to

the vehicle do not constitute ‘force majeure’.43

35 Crucial factors for judging force majeure are the place of the accident and the driving

behaviour, such as driving speed, anticipation possibilities44, sight, lighting, response and

point of collision.45 If the victim is younger than 14 years, the motorised party may only

avoid liability if he proves both force majeure in respect of the vehicle driver and intent

or wilful recklessness of the victim.46 This is due to the 100% rule mentioned earlier.

36 As far as damages is concerned, the same rules apply as those in ordinary road traffic tort

cases (see the previous section).

37 In the case that the driver or owner of the motor vehicle claims compensation from the

cyclist or pedestrian for injuries sustained in the accident or for damage to the vehicle, art.

185 WVW does not apply. So, the common rules of tort apply: there needs to be evidence

of an imputable wrongful act committed by the pedestrian/cyclist. In the relevant case

law, the thresholds for this evidence have been raised to the level of art. 185 WVW. This

is called reflexwerking (extended scope of application or application by analogy). The

40 Art. 185 WVW does not apply to damage to vehicle passengers or objects carried by the motorised vehicle, another moving

motorized vehicle or unleashed See Art 185 (3) WVW. 41 The liability of the owner for acts and omissions of the permitted driver (art. 185 (3) BW) constitutes a form of vicarious

liability. Cf. HR 21 January 1977, NJ 1977/386 (Sanitaire stop). 42 Eg., HR 24 December 1982, NJ 1983/443 (Wijman/Corten); HR 23 May 1986, NJ 1987/482 (Frank van Holsteijn). 43 HR 16 April 1942, NJ 1942/394 (Torenbout). 44 See, e.g., HR 16 February 1996, NJ 1996/393: bus driver should anticipate traffic participants acting irrespective of road

traffic rules. 45 Dutch Association of Insurers, Guide article 185 WVW. 46 HR 31 May 1991, NJ 1991/721 (Marbeth van Uitregt).

13

burden of proof concerning force majeure and contributory negligence rests on the

driver/owner. The 50% and 100% rule do not apply by analogy.47

38 In situations where art. 185 WVW is not applicable, injured parties may seek damages

under the general fault-based liability as explained above. This is relevant for driver vs.

driver claims, passengers vs. driver claims, as well as pedestrian/pedestrian and

cyclist/cyclist claims. The claim requires made against the driver, not the owner of the

vehicle. The ‘normal’ rules of art. 6:162 BW apply. However, where a pedestrian/cyclist

claims compensation from the driver of a motor vehicle rather than the owner or keeper

of the vehicle, similar strict standards on force majeure and contributory negligence

apply. The main difference is that under art. 185 WVW, the burden of proof concerning

the facts of the collision lies with the owner or keeper. If the driver is sued instead of the

owner or keeper, it is the victim who needs to bring the evidence.48

39 Also note that the Supreme Court has ruled that in cases of collisions between trams and

pedestrians or cyclists, the framework of art. 185 WVW applies by analogy.49

II. Defective vehicles

40 Another form of strict liability concerning road traffic accidents is the liability for

defective objects, including moveable objects, as laid down in art. 6:173 BW. The

possessor (usually the owner) of a moveable object that is known to constitute a particular

danger to persons or things, if it is not as safe as one would reasonably be entitled to

expect, is liable when this danger materialises, regardless of the possessor’s actual

knowledge of the defect. Thus, if a motor vehicle catches fire and causes injury to

passers-by, the owner is strictly liable. This strict liability is, however, pre-empted by

product liability: the possessor of a defective product is, in principle, immune from claims

that should be directed to the manufacturer concerned, unless (a) it is more likely than not

that the defect in the vehicle was not present (or latent) at the time the product was put

into circulation or if there is positive evidence which shows that the defect occurred after

that moment, or (b) it concerns damage to property below the €500 threshold.50

47 Dutch Association of Insurers, Guide article 185 WVW; HR 28 February 1992, NJ 1993/566 nt. CJHB (IZA / Vrerink); HR

2 June 1995, NJ 1997/700-702 nt. CJHB (Marloes de Vos, Quafa El Ayachi, Pierre Wildiers, respectively). 48 HR 15 January 1993, NJ 1993/568 (Puts/Ceha). 49 HR 14 July 2000, NJ 2001/417. 50 This section was derived from Van Boom 2003.

14

III. Parental liability

41 Based on art. 6:164 BW, children younger than 14 years cannot be held personally liable.

Instead, their parents are vicariously liable for their tortious acts (art. 6:169 BW). If the

behaviour of a person under the age of 14 causes injury or damage to a road user and this

behaviour would have resulted in liability under article 6:162 BW if it had not been for

his age, then the parents are liable. If the child who wrongfully causes the injury or

damage is between14 and 16, the parents may be held liable if it is established that they

were negligent in failing to prevent the child’s tortious act.51 This is rarely the case in road

traffic accidents. It is also noteworthy that damage caused by negligence is usually

covered by ordinary household liability insurance.

C. 3. Third-party liability

I. Passenger claims against driver (contract)

42 Passengers in motor vehicles may or may not be in a contractual relationship with the

driver, irrespective of whether there is an exchange of payment. In this context, specific

rules based on the contractual relationship apply.52 In the case of public transportation or

taxi transport, a clear contractual basis exists.53 For these situations, specific liability rules

are laid down in art. 8:105 and 8:1147 BW (death and bodily injury) and 8:106 and

8:1150 BW (luggage) for bus and tram operators and taxi operators (art. 8:80 BW). Here,

the contract doctrine of force majeure is the only escape from liability (art. 8:1148 and

8:82 BW). A contributory negligence defence is also available (art. 8:1155 BW).

43 The rules concerning free transportation such as a ‘friendly favour’ are less clear.

According to the case law, the driver is under a duty to deliver his passenger safely and

unharmed to his destination.54 The Supreme Court has ruled that a vehicle driver may be

held liable by his passenger for an accident, even though the driver and passenger were

relatives and the transportation took place in the context of a joint holiday.55 Contributory

51 H.A. Bouman, GS Onrechtmatige Daad 6.3, onderdeel III Verkeersrecht en WAM, note 191.1. 52 Section 8.2.4, 8.2.5. and 8.13 BW. 53 H.A. Bouman, GS Onrechtmatige Daad 6.3, onderdeel III Verkeersrecht en WAM, note 237. 54 See e.g. HR 11 April 1958, NJ 1958/467 and HR 26 February 1971, NJ 1971/270. 55 HR 11 April 1975, NJ 1975/373 (Zopp/Mijnwerkersfonds).

15

negligence on the part of the passenger, for instance, the failure to wear a seatbelt or a

helmet, may reduce the driver’s obligation to compensate.56

II. Employee claims against employer (contract)

44 Article 6:170 BW defines the strict liability of the employer for tortious acts committed

by employees while performing their work. The employer is liable in cases where the risk

of committing a tort has been increased by the assignment given to the employee and

where the employer is in control of the conduct of the employee. The scope of this article

is wide in the sense that it covers not only labour contracts but also more flexible contract

forms, which constitute some sort of hierarchy. Thus, the employer of an employee who

drives a motor vehicle as part of his job description or as an actual part of his work and

who, thus, causes a road traffic accident, is jointly and severally liable along with the

employee. The same applies to independent service providers who are part of the business

process of their client (art. 6:171 BW).57

45 The employer may also be liable in the case where the employee is the victim. If being

part of the traffic is part of the employee’s occupational activities, the employer has a

duty to take reasonable care to provide the employee with instructions and adequate

equipment for such traffic participation (art. 7:658 BW). Depending on the specific

circumstances, this may include the duty to provide adequate footwear and high visibility

gear, a well-maintained bicycle, motor bicycle or motor vehicle as well as adequate

instruction on how to perform his tasks.

46 Furthermore, the Supreme Court has developed a specific duty for employers, based on

the good employer doctrine (art. 7:611 BW), to buy first-party insurance for employees

who drive motor vehicles in the performance of their work. This first-party insurance is

especially relevant in the case of unilateral traffic accidents.58

56 H.A. Bouman, GS Onrechtmatige Daad 6.3, onderdeel III Verkeersrecht en WAM, note 221.2. 57 See HR 10 January 2001, NJ 2002/75; HR 18 June 2010, NJ 2010/389. This section was derived from Van Boom and

Lindenbergh 2015, I. Greveling & W.H. van Boom, ‘Damage caused by GMOs under Dutch Law. ’, in: B.A. Koch (ed.),

Damage caused by Genetic Modified Organisms - Comparative Survey of Redress Options for Harm to Persons, Property

or the Environment (Tort and Insurance Law vol. 27), Berlin/New York: De Gruyter: 2010. 58 HR 1 February 2008, ECLI:NL:HR:2008:BB6175, NJ 2009/330 (Maasman/Akzo Nobel); HR 1 February 2008,

ECLI:NL:HR:2008:BB4767, NJ 2009/331 (Kooiker/Taxicentrale Nijverdal).

16

III. Product liability

47 With regard to product liability, the Dutch legislature has fully implemented the European

Directive on product liability into the Civil Code.59

Moreover, manufacturer liability for

defective or unreasonably unsafe products may also be based on the general fault based

liability for wrongful acts.60

IV. Non-performance

48 Furthermore, contractual claims may be based on imputable non-performance, as laid

down in art. 6:74 DCC. All parties in breach of a contract may be held liable such as the

garage that overlooked a defect or failed to repair a vehicle correctly.61 It should be noted

in this context that the seller of motor vehicles is not obliged to check the driving ability

of the buyer.62

V. Road owner liability

49 Under art. 6:174 BW, the possessor of an immovable ‘construction’ is liable if that

construction is defective in the sense that it poses a (serious) danger to persons or goods,

and this danger subsequently materialises, regardless of the possessor’s actual knowledge

of the defect. This liability includes public infrastructure such as bridges, tunnels and

public roads. With the exception of toll roads, ownership and/or maintenance

responsibilities of public roads and infrastructure lies with central and decentralised

government bodies. Their liability is governed by art. 6:174 BW. 63 The main issue in

these cases is usually to what extent road users are entitled to expect perfect maintenance

and absolute safety of road design.64 Understandably, the mere fact that one suffers an

accident that could have been prevented by an alternative road design or alternative

prioritising of public resources, is insufficient for liability. The conscious and deliberate

introduction by road authorities of obstacles such as rising bollards or ‘bus sluices’ (a gap

in the road wide enough for public transport buses to pass but not for ordinary vehicles)

59 Art 6:185-191 BW. 60 HR 6 September 1996, NJ 1998/415 (Annema/Staat); HR 6 December 1996, NJ 1997/219; HR 22 October 1999, NJ

2000/159; HR 4 February 2011, NJ 2011/69. See H.A. Bouman, GS Onrechtmatige Daad 6.3, onderdeel III Verkeersrecht

en WAM, note 138. 61 E.g. Hof Arnhem 8 May 1985, VR 1986/89. 62 Hof ‘s-Hertogenbosch 11 February 1969, VR 1970/11. 63 See e.g. HR 19 December 2008, NJ 2009/28; HR 17 December 2010, NJ 2012/155 (Veendijk te Wilnis); HR 4 April 2014,

ECLI:NL:HR:2014:831, NJ 2014/368; HR 7 October 2016, ECLI:NL:HR:2016:2283. 64 HR 19 December 2008, NJ 2009/28 (para. 3.6-3.7).

17

may constitute a ‘defective road’ if not enough is done to ensure that vehicle drivers are

aware of the serious consequences of ignoring no entry signs.65

VI. Damages

50 The general rules for compensable types of damages, both personal as well as material,

apply to the third party liabilities detailed above. This is subject to two exceptions.

According to art. 6:190 DCC, a threshold of €500 applies to product liability for damage

to private property. Furthermore, in case of a contract of passenger carriage, statutory

minimum amounts and limits apply. For instance, a claim by a passenger against a private

bus company is limited to €1500 in the case of property damage and has a minimum of

€220,000 per passenger for personal injury, with a €15 million gross ceiling per

accident.66

D. 4. Special problems regarding compensable damage

51 Whiplash injuries are one of the most problematic injuries suffered as a consequence of

road traffic accidents. Three fundamental questions need to be answered in whiplash

cases: (1) the existence of the reported injuries, (2) a causal link between those injuries

and the accident and (3) the disabilities that arise from those injuries.67 All three issues are

complicated in whiplash cases. Here, the Supreme Court has been extremely lenient

towards claimants: the evidence of injury required has been relaxed and the absence of an

objectifiable, medical explanation for the injuries has not excluded the presence of

causality.68 Generally speaking, a causal link is assumed where the health problems are

sufficiently “realistic, non-imaginary, non-exaggerated and non-excessive”.69 Thus, the

claimant is subjected to a so-called ‘plausibility test’.70 This standard is not undisputed

however since measuring pain is purely based on a subjective perception.71 Moreover,

65 HR 20 March 1992, ECLI:NL:HR:1992:ZC0549, NJ 1993/547 (Bussluis). 66 See art. 8:110, 8:1157 BW and concomitant regulations. 67 A. Kolder, ‘Whiplash: klachten, causaal verband en beperkingen’, thema Juridisch, Kluwer Navigator (online, 28-10-2015). 68 J. Roth, ‘Juridisch causaal verband bij whiplash in de deelgeschilprocedure’, Letsel & Schade 2012/2, p. 3, H. de Hek,

‘Whiplash – observaties van een rechter’, TVP 2011/2. See e.g. Hof Leeuwarden 22 June 2010, ECLI:NL:GHLEE:BN0730,

Hof Leeuwarden 10 August 2010, ECLI:NL:GHLEE:BN3975, Hof ’s-Hertogenbosch 29 June 2010,

ECLI:NL:GHSHE:BN0292, Hof Arnhem 5 July 2011, ECLI:NL:GHARN:BR3964. 69 HR 8 June 2001, ECLI:NL:HR:2001:AB2054, NJ 2001/433 (Zwolsche Algemeene/De Greef), r.o. 3.5.2. This is confirmed

in HR 13 February 2015, ECLI:NL:HR:2015:308, RvdW 2015/318 (London/X), r.o. 5.3. 70 A. Kolder, ‘Civiele whiplashzaken. Een volgende fase’, NJB 2015/813, p. 1149. 71 See e.g. A. Kolder, ‘De juridische beoordeling van het whiplashsyndroom: stand van zaken’, TVP 2011/1, p. 22, P.C. Knijp,

‘De juridische beoordeling van het postwhiplashsyndroom: een reactie’, TVP 2001/2.

18

some lower courts seem to align the judicial causal link with the medical expert

judgement.72

52 Consequential economic loss in the case of death, personal injury and property damage

are compensated in accordance with the ordinary rules of CSQN and art. 6:98 BW. This is

outlined above. As far as pure economic loss concerned, neither a rule that excludes this

type of damage from compensation, nor a higher threshold exists.73 It is important to note,

however, that claims for pure economic loss (as well as claims for non-pecuniary losses)

suffered by spouses, dependants and employers are usually blocked or trimmed down by

art. 6:107, 107a and 108 BW. These provisions set forth a peculiar system that blocks

most of the claims of third parties who suffer other losses than ricochet damage. So, the

employer of a traffic accident victim may take recourse for the cost of statutory sick pay

but may not claim compensation for the loss of company turnover caused by the

employee’s absence from work.

53 The settlement of personal injury and death claims generally takes a long time, sometimes

many years. This is due to several factors, such as the opposing interests of the parties

involved, miscalculations concerning successful proceedings and withholding of

information. The legislator has recently taken steps to improve the extrajudicial

settlement of personal injury claims. This resulted in the Wet deelgeschilprocedure voor

letsel- en overlijdensschade (the Personal Injury Partial Dispute Proceedings Act 2010).

This Act is designed to stimulate and expedite efficient out-of-court settlement of

personal injury claims.74

E. 5. Third-party liability insurance and equivalent systems

54 The owner of a motor vehicle and the registered holder of the vehicle registration are

obliged to take out liability insurance as laid down in art 2 Wet

Aansprakelijkheidsverzekeringen Motorvoertuigen (WAM; Motor Vehicle Insurance

72 The court of appeal in Amsterdam handles this trend, see e.g. Hof Amsterdam 29 April 2008,

ECLI:NL:GHAMS:2008:BF7503. More on this: L. Schuurs, ‘Hoe ver zijn we met het objectiveren van whiplash(achtige)

klachten?’, PIV-bulletin 2011/6, p. 1-5. 73 J.M. Barendrecht, ‘Pure economic loss in the Netherlands’, in: E.H. Hondius (ed.), Netherlands reports to the Fifteenth

International Congress of Comparative Law, Antwerpen/Groningen: Intersentia 1998, p. 115-116. 74 M.A. Tuls, ‘Het bevorderen van een buitengerechtelijke afwikkeling door het introduceren van een nieuwe procesvorm; een

paradox?’, in: W.H. van Boom a.o. (eds.), Rake remedies. Opstellen over handhaving van rechten, naleving van plichten en

sanctionering van verkeerd gedrag in het privaatrecht, Den Haag: Boom Juridische uitgevers 2011, p. 192-193.

19

Act). The State (art. 17 WAM) and conscientious objectors (art. 18-21 WAM) are exempt

from this mandatory insurance.75

55 The objective of the mandatory WAM-insurance is to protect traffic participants against

the inherent dangers of motor vehicle use on public roads.76 The compulsory insurance

must cover a minimum of €6,07 million per occurrence for death and personal injury and

€1,22 million for property damage.77 The insurance covers death, personal injury, damage

to property and consequential losses. Events that are covered include tortious acts

committed by or with a vehicle and damage caused due to vehicle defects. For certain

vehicles, the strict liability for dangerous substances is also covered.78 Insurance cover is

provided for every owner, keeper and driver of the insured vehicle, as well as for

passengers. A driver who lacks permission from the owner, such as a thief, is not covered

(art. 3 (1) WAM).

56 Both pecuniary and non-pecuniary losses are covered under the WAM, as well as

consequential and pure economic loss. The only damage that may be excluded is material

damage sustained by passengers (art. 3, §2 WAM). The only liability that the insurance

does not have to cover is liability for injury or damage to the driver of the motor vehicle

that caused the accident (art. 4 WAM).

57 On the one hand, the coverage of motor vehicle insurance is, in practice, often broader

than required under the WAM. In most cases, the damage is not restricted to the traffic

risk. On the other hand however, the coverage sometimes contains restrictions in violation

of article 11 WAM. To prevent non-coverage where coverage is required by the WAM,

the general conditions in the insurance contract are preceded by a clause stating that the

insurance at least meets the WAM requirements.79

58 The victim of a road traffic accident may choose to claim damages from either the

tortfeasor or the insurer, since a direct claim against the insurer (action directe) is

guaranteed in art. 6 WAM. Defences that the insurer might raise against his contractual

75 Based on art. 25 (1) (e) WAM, the Waarborgfonds guarantees compensation for the victim in such situations. 76 H.A. Bouman, GS Onrechtmatige Daad 6.3, onderdeel III Verkeersrecht en WAM, note 167. 77 See art. 2 Besluit bedragen aansprakelijkheidsverzekering motorrijtuigen (Motor Vehicle Liability Insurance Coverage

Decree). 78 Art. 3a WAM. This section was partly derived from Van Boom and Lindenbergh 2015. 79 H.A. Bouman, GS Onrechtmatige Daad 6.3, onderdeel III Verkeersrecht en WAM, note 352.5.

20

counterpart, the tortfeasor, may not be raised against the injured party.80 In cases where

the damages exceed the insured amount, the insurer has a right to take recourse against

the insured party (art. 15 WAM). The insurer also has a limited right of recourse against

the insured party in cases where that party breaches the contractual obligations such as

drunk or unlicensed driving (art. 3, §3 WAM).

59 In the event that the tortfeasor is unknown (a), a motor vehicle insurance is absent (b,e),

the damage is not covered by the insurance (c) or the insurer is unable to pay (d), the

victim is then entitled to compensation from the Waarborgfonds Motorverkeer

(Guarantee Fund Motor Vehicles) based on art. 25 WAM. This Fund compensates the

minimum statutory amount of damage and it has the same defences as the insurer would

have had.81 According to art. 24 WAM, this fund is financed by insurers in the motor

vehicle branch. All insurers need to pay an annual contribution calculated by the Fund

based on the number and nature of their insured motor vehicles. The Fund has a right of

recourse against the liable party (art. 27 WAM).

60 It is not uncommon for a victim to have a choice between several insurers, for instance

where there are multiple vehicle drivers jointly and severally liable for the accident. The

liability insurer that is addressed first is required to compensate the victim and is then

permitted to claim proportionate reimbursement from the other insurers.82

B. OTHER COMPENSATION SYSTEMS

F. 1. First-party insurance

61 First-party insurance is, contrary to third-party liability insurance, not compulsory in the

Netherlands. It is also considered to be less necessary than liability insurance.83 First-

party insurance such as ‘vehicle passenger insurance’ (schade verzekering inzittende,

SVI) and ‘passenger accident insurance’ (ongevallen inzittende verzekering) is commonly

80 C.C. van Dam & E.A. Waal, ‘De directe actie in titel 7.17 BW’, in: T. Hartlief & M.M. Mendel, Verzekering en

maatschappij, 2000, p. 105 et seq. 81 Article 26 WAM; L. Vanhooff, T. Vansweevelt & B. Weyts, ‘So many funds, so many alternatives: compensation funds as a

solution for liability issues in Belgium, the Netherlands and the United Kingdom, European Journal of Commercial

Contract Law 2016/3/4, p.48; H.A. Bouman, GS Onrechtmatige Daad 6.3, onderdeel III Verkeersrecht en WAM, note

390.1. 82 H.A. Bouman, GS Onrechtmatige Daad 6.3, onderdeel III Verkeersrecht en WAM, note 346.2. 83 J. de Mot & M. Faure, ‘Special Insurance Systems for Motor Vehicle Liability’, 18

th Ius Commune Congres 2013 (online:

Biblio.ugent.be), p. 21.

21

bought by vehicle owners and covers damage in the case of road traffic accidents. Since

this is a first-party insurance, the rules pertaining to damages and causation as laid down

in the Civil Code (art. 6:95 BW ff) do not apply. Instead, insurance companies are free to

rely on freedom of contract to design easy to apply damage schedules and to exclude

injuries difficult to prove such as whiplash. Such first-party insurance often only pays a

fixed amount. The disadvantage of such insurance schemes is that in cases of serious

injury they seldom offer full compensation.84 There are also voluntary first-party

insurance products and modules available, which cover legal expenses. These insurance

products provide assistance in respect of both raising and defending claims.85

62 Private health insurance and public health providers are first-party indemnity insurers and

social security providers that bear some of the direct cost in personal injury cases. They

are subrogated (legal assignment) in the victim’s tort or contract claim to the extent that

they compensate the victim. If a subrogated insurer of a pedestrian or cyclist claims in

recourse from the tortfeasor, article 185 WVW is also applicable but the 50% and 100%

rules are not.86

G. 2. Specific compensation systems

63 If a traffic accident can be categorised as a violent crime, there is a specific Fund

available, the Violent Offences Compensation Fund (Schadefonds Geweldsmisdrijven).

This Fund serves as a last resort for victims of serious injuries and their dependants who

cannot get compensation elsewhere.87 The fund does not pay full compensation but

determines the amount on a fair and reasonable basis.88 In practice, six fixed amounts

varying from €1,000 to €35,000 are available depending on the severity of the injury.89

This fund is financed by general taxation.90

84 S.D. Lindenbergh, Arbeidsongevallen en beroepsziekten, Deventer, Kluwer, 2009, p. 108. 85 www.independer.nl. 86 See HR 5 December 1997, NJ 1998/400, 1998/401 and 1998/402 (Sinterklaasarresten). 87 Article 3 Violent Offences Compensation Fund Act (Wet schadefonds geweldsmisdrijven). 88 Article 4, paragraph 1 Violent Offences Compensation Fund Act. 89 See ‘Personal Injury List Violent Offences Compensation Fund’ (25 January 2016), via Schadefonds.nl. 90 Article 2, paragraph 1 Violent Offences Compensation Fund Act.

22

H. 3. Social security systems

64 First and foremost, Dutch social security law is directed at protecting the financial

interests of insured citizens against personal injury, sickness, disability, and

unemployment.91 In effect, tort law is based on fundamental notions of retribution or

corrective justice, whereas social security law is based on distributive justice. What both

systems have in common is the effect of compensating the injured party. However, the

levels of compensation differ considerably. In tort law, the doctrine of full compensation

is paramount, whereas, in most social security schemes, the level of compensation is quite

low. Moreover, as a rule, social security schemes only cover certain heads of pecuniary

loss, notably the loss of income and, as far as compulsory health insurance is concerned,

the cost of medical care. There is no social security scheme that offers compensation for

non-pecuniary loss. Social security law serves as a source of compensation with relatively

low thresholds.

65 In broad terms, Dutch social security schemes offer protection against medical expenses

(through the mandatory private health insurance scheme), and against loss of income

through sickness or disability, whatever the cause of the injuries might be. Personal

injuries that arise from road traffic accidents are therefore also covered by the social

security system. However, this safety net is not as robust as it used to be. Employers

require to pay statutory sick pay for two years and after that period, the victim is covered

by the Law on Work and Income in Accordance with Capacity for Work (Wet Werk en

Inkomen naar Arbeidsvermogen; WIA). This Act offers a statutory benefit to those

employees who are incapacitated and thus lose their ability to generate at least 35% of

their income. For those who are self-employed, there is no social security safety net at all,

apart from the general subsistence benefits based on the Bijstandswet (National

Assistance Act).92

91 See W.H. van Boom & C.E. du Perron, ‘The Netherlands’, in: U. Magnus (ed.), The Impact of Social Security Law on Tort

Law (Tort and Insurance Law vol. 3), Vienna: Springer 2003, p. 149. 92 Further on the interplay between tort law and social security law, eg., Van Boom & Du Perron 2003, pp. 149-164.

23

IV. INTERPLAY OF COMPENSATION OR LIABILITY SYSTEMS

66 As described above, the victim of a road traffic accident has several options for claiming

damages. Tort law aims at correcting a wrongful act, contract law aims at compliance

with an agreement and social security law protects Dutch citizens from financial losses on

whatever grounds. The tort and contract routes are based on a duty to provide

compensation whereas the social security route is based on the need to provide

compensation. Nevertheless, both may well have the same outcome, namely the effect of

compensating the injured party. The amounts of compensation, however, differ. Tortious

and contract liability aim at full compensation, where social security will only partially

compensate. Another difference is that both tortious and contract liability allow claims for

pecuniary as well as non-pecuniary loss, but social security covers only specific pecuniary

loss, mostly loss of income and medical costs.93 Conversely, social security law has low

thresholds compared to tort law. A tort claim requires wrongfulness, fault, causation and

burden of proof and in addition, contributory negligence may also be important.

Moreover, tort claims can be time consuming and very expensive. All these hurdles that

need to be overcome before compensation is realised can be psychologically burdensome

to the claimant. On the other hand, social security schemes operate both quickly and

efficiently, without lawyers and provide adequate (but not full) compensation regardless

of the actual cause of the injuries and whether or not there has been contributory

negligence. This process is less burdensome to the injured party.

67 There is no hierarchy between the different compensation claims. The injured party can

choose which route he wishes to take to pursue compensation, based on the

considerations above. If an accident takes place between a motorised and a non-motorised

party, the easiest way for full compensation is through strict liability based on article 185

WVW (if applicable). Social security benefits will be deducted from a tort claim and vice

versa. The injured party can claim the amount in damages from the tortfeasor that was not

covered by social security.94

93 Partly derived from Van Boom and Du Perron 2003. 94 See W.H. van Boom, verhaalsrechten van verzekeraars en risicodragers, Deventer: 2000, p. 17, pp. 24-25.

24

V.PRESCRIPTION

68 The general tort regime, applicable to article 6:162 BW, operates a two-tiered prescription

period, laid down in article 3:310 BW.95 The long stop period is 20 years, commencing

from the occurrence of the event that eventually causes the damage. The short stop period

is five years commencing from the moment the injured party becomes cognisant of the

injury and the party who is liable (i.e. usually after the damage manifests). The short stop

period therefore only starts from the moment the victim is realistically able to take legal

action.96 If the long stop period has expired, any latent claim, which comes to fruition,

afterwards has also expired.97 That is why from 2004 onwards, in cases concerning death

and personal injury, only the short stop period has applied (which may be more

favourable to claimants). Regarding children, the short stop does not commence until they

turn eighteen.98

69 The claim against the WAM insurer has a prescription period of three years after the

damage occurred (art. 10, §1 WAM). This period is paused whilst negotiations take place

between the victim and the insurer but also due to any act that halts the prescription

period in respect of the insured party. A new period of three years commences if the

negotiations are terminated (art. 10, §5 WAM).99 It should be noted that the prescription

period of three years in respect of the WAM insurer does not affect the five-year period

for liability under article 6:162 BW.

VI. PROCEDURE OR ADMINISTRATION OF CLAIMS

70 Road traffic claims follow the normal civil procedure. However, out-of-court settlement

plays a significant role for traffic injuries. An estimation of 95-99% of all personal injury

95 For product liability, a period of three years is laid down in article 6:191 BW. This period starts from the moment the victim

is familiar with the damage, the defect and the identity of the producer. 96 HR 31 October 2003, ECLI:NL:HR:2003:AL8168, NJ 2006/112. 97 This section is derived from W.H. van Boom, Dutch law report, for: World Tort Law Society project on Products Liability. 98 See art. 3:310 (5) BW. 99 Only if the damage is due to a hazardous substance on board of a vehicle (art. 8:1210 sub b DCC) a two-tiered period

applies: the short stop is three years from the day that the victim was or should have been familiar with the damage and the

long stop is ten years (art. 10, §2 WAM).

25

claims is settled out-of-court.100 Some cases take far too long to settle, often because of

disagreement on specific issues, which block further negotiations. Practice shows that the

victim generally finds himself up against a liability insurer, which creates an imbalance in

knowledge, experience and financial means between the parties. In order to resolve these

issues efficiently, the legislature has introduced specific proceedings for personal injury

claims. The 2010 Wet deelgeschilprocedure voor letsel- en overlijdensschade (the

Personal Injury Partial Proceedings Act 2010), allows either of the negotiating parties in

the context of personal injury claims to submit one or more of the issues that hinders or

obstructs negotiations to court. This partial dispute procedure therefore aims at facilitating

out-of-court settlement negotiations and at creating a more balanced relationship between

victims and parties who are liable and their insurers.101

VII. DATA ABOUT ACCIDENTS AND CLAIMS

71 The Netherlands is densely populated; there are some 17 million inhabitants living on

41,543 km2 (410 people per square kilometre). There are some 480 motor vehicles per

1000 inhabitants. The total length of public roads in the Netherlands amounts to more

than 135,000 km.

72 The total number of road traffic accidents involving cars rose to over half a million in

2015, giving rise to 841.000 claims.102 Overall, the number of people killed in road traffic

accidents has decreased since 1973. In 2015, 621 were killed of whom 224 were car

passengers and 185 were cyclists.103 Relatively speaking, children aged between 0 and 15

are represented least of all in road traffic deaths while young adults (16-24 years) and the

elderly (65+) feature the most. Three quarters of the victims are men.104 The number of

100 W.C.T. Weterings, Efficiëntere en effectievere afwikkeling van letselschadeclaims. Een studie naar

schikkingsonderhandelingen in de letselschadepraktijk, normering en geschiloplossing door derden, Den Haag: Boom

Juridische uitgevers 2004, p. 20. 101 M. Wesselink, ‘De deelgeschilprocedure werkt: tijd voor uitbreiding?’, Verkeersrecht 2016/11, p. 404. 102 See Association of Insurers data at https://www.verzekeraars.nl/actueel/nieuwsberichten/Paginas/Aantal-aanrijdingen-

stijgt,-Deltaplan-veilig-verkeer-nodig.aspx. 103 The number of deaths is determined by the Centraal Bureau voor Statistiek (CBS; Central Bureau for Statistics) based on

three sources: the cause of death-forms filled in by a doctor, the district Public Prosecutor’s office’s files on unnatural

deaths and the accident reports established by the police and published by the Ministry of Infrastructure and the

Environment. 104 ‘Aantal verkeersdoden gelijk gebleven in 2014’, cbs.nl (30-4-2015).

26

deaths depends on such factors as the mode of transport, age and road behaviour of both

the victim and of others.105

73 Road traffic accident victims with serious injuries106 show a rising trend since 2006. In

2015, the estimation amounts to 21,300 people.107 Almost two thirds of those were

cyclists. Most injuries arose from accidents that did not involve a motor vehicle.

Proportionally speaking, many victims were aged between 15 and 19 years or 45 years

and older. Most injuries were head injuries, followed by hip and leg injuries. Over 20% of

the victims experience long-lasting pain.108

74 Apart from the data detailed above, there are other road traffic victims besides those

included in the figures above. Unilateral accidents and minor incidents with minor

injuries for instance. No complete registration regarding these accidents is available.

75 Road traffic accidents entail a lot of social costs: medical costs, production loss,

immaterial and material damages, administrative costs, human costs and other costs such

as congestion costs. In 2009 (the most recent year to be monitored) this amounted to a

calculated total cost of €12.5 billion, which is 2.2% of the gross domestic product.109 The

most substantial head of damage concerned non-physical damage (€5.8 billion of which

€1.9 billion is attributable to deaths) and physical damage (€3.9 billion). The

administrative costs were €1.3 billion and the production loss €0.9 billion. Medical costs

and other costs are relatively low.110

76 In the period 2009-2011, the Netherlands had the fourth lowest mortality number (number

of traffic deaths per resident) in the European Union, after Sweden, Malta and the United

Kingdom. In 2012 the record was less impressive. Still, the traffic mortality rates in the

Netherlands for most age groups are lower than in other EU-member states. The

Netherlands only has a higher mortality rate for children aged 12 and 13 years and the

105 Stichting Wetenschappelijk Onderzoek Verkeersveiligheid (SWOV; Institute for Road Safety Research) (2016). Kosten van

verkeersongevallen. SWOV-factsheet Juni 2016, Den Haag. 106 A victim qualifies under serious injuries if he is hospitalized with an injury severity of at least 2 MAIS and did not die

within 30 days. MAIS (Maximum Abbreviated Injury Scale) is an international measure to indicate the injury severity. 107 SWOV estimates yearly the total amount of traffic injuries based on two sources: Bestand geRegistreerde Ongevallen in

Nederland (BRON; File Registered Accidents in the Netherlands) & Landelijke Basisregistratie Ziekenhuiszorg (LBZ;

National Registration Hospital Care). 108 SWOV (2016). Kosten van verkeersongevallen. SWOV-factsheet, December 2016, Den Haag. 109 SWOV (2014). Kosten van verkeersongevallen. SWOV-factsheet, March 2014. See also W. Wijnen e.a., The cost of road

crashes in the Netherlands. An assessment of scenarios for making new cost estimates, Delft: CE Delft, November 2016, p.

9-10. 110 SWOV (2014). Kosten van verkeersongevallen. SWOV-factsheet, March 2014, Den Haag.

27

elderly, aged 67 years and older. This is probably due to the widespread use of bicycles.111

That said, if you like cycling, the Netherlands is probably one of the most bike-friendly

European countries.

77 To make sure that the Netherlands remains a leading country when it comes to road traffic

safety, the Ministry of Infrastructure and the Environment has set goals: the number of

traffic deaths in 2020 should not be more than 580 and the number of hospitalisations due

to traffic accidents should decrease to a maximum of 12,250.112 This would reduce the

social cost by €2.6 billion.113

VIII. SELF-DRIVING CARS

78 In recent years, self-driving cars have come on the scene. This has created interesting

legal challenges, such as liability questions. Is our system adequate to handle this new

form of technology? On the one hand, self-driving cars have a safety benefit because a

technical system is not subject to human failures such as exhaustion, distraction, alcohol

and slow responsiveness. On the other hand however, a technical system lacks the ability

to distinguish safe objects from dangerous objects, interpret signs or respond to the

(unexpected) behaviour of other road users’.

79 Regarding the strict liability under article 185 WVW, no blameworthiness is required.

Under this article, a car owner is liable for all damage caused by his car, whether the car

was driven by a person or self-driven. As mentioned, a technical defect is no ground for

force majeure under art. 185 WVW.114 A technical malfunction in the automatic driving

software would therefore not qualify as a force majeure because the defect is within the

scope of the owner’s responsibility.

111 SWOV (2013). Nederlandse verkeersveiligheid in internationaal perspectief. SWOV-Factsheet, Augustus 2013.

https://www.swov.nl/feiten-cijfers/factsheet/nederlandse-verkeersveiligheid-internationaal-perspectief. 112 Ministry of Transport, Public Works and Water Management, Strategisch Plan Verkeersveiligheid 2008-2020. Van, voor en

door iedereen, p. 6. 113 Ministry of Transport, Public Works and Water Management, Nota Mobiliteit. Deel III. Kabinetsstandpunt, 2 september

2005, p. 87. 114 HR 16 April 1942, NJ 1942/394 (Torenbout).

28

80 Therefore, it seems logical to assume that art. 185 WVW may be applied directly where a

self-driving car collides with a pedestrian or a cyclist.115 If the damage was due to

defective software, the owner or keeper may take recourse against the manufacturer.

81 As for fault-based liability, the liability issue is more complicated. To repeat the earlier

definition of fault: the legal blameworthiness of a person committing an unlawful act that

could and should have been avoided. Can fault be proven if the car user is not actively

driving the car?

82 In this context, we firstly need to look at the Vienna Convention on Road Traffic, which

entered into force in the Netherlands in 2008.116 It defines the ‘driver’ as “any person who

drives a motor vehicle or other vehicle (including a cycle) or who guides cattle, singly or

in herds, or flocks, or draught, pack or saddle animals on a road”. This definition leaves

room for someone to be a driver even if (s)he actually does not steer the car, as long as

there is some form of control.117

83 In 2014, the Convention was amended to include the development of self-driving

vehicles.118 It now states that compliance (art. 8 (5)) depends on the “construction, fitting

and utilisation according to international legal instruments concerning wheeled vehicles,

equipment and parts which can be fitted and/or be used on wheeled vehicles” and if those

conditions are not met, whether “such system can be overridden or switched off by the

driver”.

84 In compliance with the Vienna Convention, the regulations in the Dutch Road Traffic and

Traffic Signs Regulation are addressed to the driver of a vehicle.119 If we consider the user

of a self-driving car as a driver, the question remains whether this driver is in sufficient

control to have any blameworthiness. If the driver had the chance to avoid the damage but

he fails, this is a wrongful act. This will be the case for most self-driving cars since

human intervention is possible in most cars. The user may then still be held liable under

115 N.E. Vellinga, ‘De civielrechtelijke aansprakelijkheid voor schade veroorzaakt door een autonome auto’, VR 2014/151, par.

5-6. E. Tjong Tjin Tai & S. Boesten, ‘Aansprakelijkheid, zelfrijdende auto’s en andere zelfbesturende objecten’, NJB

2016/10, p. 658. 116 Trb. 2008, 76. 117 See art. 8 (5): “Every driver shall at any time be able to control his vehicle.” and art. 13 (1): “Every driver of a vehicle shall

in all circumstances have his vehicle under control so as to be able to exercise due and proper care and to be at all times in a

position to perform all manoeuvres required of him.” See also K.A.P.C. van Wees, ‘Enkele juridische aspecten van de

(deels) zelfrijdende auto’, Computerrecht 2015/198, p. 316. 118 Van Wees 2015, p. 316. 119 See e.g. art. 15 lid 1 RVV.

29

article 6:162 BW.120 If the car, however, is completely automatic, the driver has no

influence whatsoever and cannot be held responsible based on article 6:162 BW, except

for failing to update to car system properly.121

85 Liability based on article 6:173 BW is not different in respect of self-driving cars.122 The

holder of the self-driving car is liable for damages caused by that car, unless those

damages are compensated under product liability. For product liability (art. 6:185 BW),

the question as to who is considered to be the producer is crucial. Is the producer the

seller of the car as a final product or is it the producer of the software since accidents are

most likely due to a system malfunction in the software? Is software even considered a

product since the Product liability Directive speaks of ‘moveable objects’? It is generally

assumed that software which aims at automatic driving falls within the scope of the

Directive.123

86 Article 6:186 BW states that a product is defective when it does not meet the reasonable

safety expectations. All circumstances should be taken into account, however the article

gives a non-comprehensive list of factors to consider: (a) the presentation of the product,

(b) the reasonably expected use of the product and (c) the time the product entered the

market. Liability is not based on (culpable) act but on lack of safety of the product. Since

self-driving cars are a new form of technology that lacks consumer experience, the

presentation is especially important for the expected safety level. However, adequate

warnings and instructions are not enough to escape liability. The manufacturer has a duty

to bring a safe product onto the market. He must also take into account that consumers do

not always act with utmost care, even if possible danger is pointed out.124

87 A question with regard to the product liability for self-driving cars is whether certain

safety risks should be accepted along with the benefits of the technology. Automating a

potentially injurious act, such as driving a motor vehicle, inherently leads to labelling the

120 E. Tjong Tjin Tai & S. Boesten, ‘Aansprakelijkheid, zelfrijdende auto’s en andere zelfbesturende objecten’, NJB 2016/10,

p. 659. 121 Tjong Tjin Tai & Boesten, p. 659-660. 122 Tjong Tjin Tai & Boesten distinguish two interpretations for the element in article 6:173 BW that the object does not meet

the expected requirements. The tolerant approach bases the norm on the state of the art whereas the strict approach

compares the self-driving car safety with a normal car. They find the latter applicable to self-driving cars since the object

can act on its own. In that view, article 6:173 BW gives the same protection to victims in case of self-driving cars as it does

for normal cars. See: Tjong Tjin Tai & Boesten 2016, p. 661-662. 123 Van Wees 2015, p. 318. 124 Van Wees 2015, p. 319.

30

product as defective in the case of functioning that causes injury. Any contrary conclusion

would impair the ratio of product liability to protect the incidental victim against a

defective product.125 Note that defects are examined through current safety norms; norms

that have been developed subsequently should not be taken into account for an earlier

defect (art. 6:186 (1) (c) BW). For constantly developing technologies such as self-

driving cars, this ‘state of the art defence’ may become relevant.126

88 A self-driving car depends greatly on the information it is given. The car needs to “know”

all relevant things, such as a road construction, speed limits, traffic jams, road condition

and it also needs to “communicate” with traffic lights and drawbridges. Liability under

article 6:174 BW for the road authority may considerably expand due to autonomous cars

since a best effort obligation will no longer suffice.127

89 The mandatory car insurance covers the same civil liabilities for self-driving cars as it

does for normal cars.128 In the future, insurance companies may decide to offer other

liability insurance products or amend their premiums.

IX. ASSESSMENT OF THE CURRENT SYSTEM AND THE NEED

FOR REFORM

90 In general, the current system with tort law (fault-based and strict liability), mandatory

third-party insurance and social security provides sufficient protection to victims of road

traffic accidents. As mentioned above, an estimation of 95% - 99% of traffic accidents

claims are settled out-of-court. Since tort law aims at full compensation, the danger of

overcompensating or undercompensating victims is minimal.

125 Van Wees 2015, p. 319-320. 126 Vellinga 2014, par. 6.2. 127 O. Hijink, ‘Aansprakelijkheid voor ongeluk met zelfrijdende auto’, Hijink.com (summary lecture HIJINK Advocaten at

Tesla Duinen, 14-6-2016). 128 O. Hijink, ‘Aansprakelijkheid voor ongeluk met zelfrijdende auto’, Hijink.com.

31

PART II: CASES

CASE 1

91 A borrows a vehicle owned by B thus, A drives with B’s consent. The accident involves a

7-year old pedestrian X. The claim against owner B is governed by art. 185 WVW.

Therefore, B is liable in full in his capacity of keeper (owner) of the car, regardless of any

fault. The child is aged 7 and therefore the 100 per cent rule applies. Since the facts do

not point towards force majeure (unless the child could be considered to have acted

intentionally with the intent to cause the accident or consciously recklessly resulting in

the ensuing consequences), B will have to pay damages in full. X may also claim from

driver A on the basis of art. 6:162 BW. Here, X has the onus of proving the facts of the

accident. X will need to show that A should have driven more carefully than he did. If

successful, X can claim in full according to the 100 per cent rule (applied by analogy).

Relying on article 6 WAM, the victim may also choose to claim damages directly from

the WAM-insurer, on the basis that it is jointly and severally liable,

92 If the facts show that A was looking at his mobile phone and not paying attention, the

outcome will be that A violated the Highway Code, which triggers A’s liability under art.

6:162 BW. If the facts show that A violated a speed limit that did not purport to protect

against accidents, there may still be liability under art. 6:162 BW. Independent from this

speed limit, art. 6:162 BW obliges drivers to act with the utmost care when driving their

vehicle (especially in an urban area where drivers can expect and should therefore

anticipate pedestrians and other road users to display unexpected behaviour). Note that

the outcome under art. 185 WVW is not affected by these variations in facts.

93 For any damage to the motor vehicle, B may claim from X’s parents or guardians if X’s

behaviour amounts to an imputable tort (art. 6:162 in combination with art. 6:164 BW and

art. 6:169 (1) BW) and this behaviour constituted ‘force majeure’ for driver A. If the

parents are indeed liable, they can raise the defence of contributory negligence.

94 If X was 25 years old at the time of the accident, he can claim compensation from B on

the basis of art. 185 WVW. B can only escape liability if the proves ‘force majeure’ of the

driver. It is unlikely but not impossible for this plea to succeed in court. If this fails, B’s

liability will probably be reduced because of X’s contributory negligence. However, the

32

‘fifty per cent’ rule will grant X a minimum of 50 per cent of the damage sustained.

Should X choose to claim compensation from A, more or less the same applies with the

exception of the burden of proof of the facts of the accident.

CASE 2

95 This scenario involves two motor vehicles and therefore only article 6:162 BW applies;

article 185 WVW is not relevant. An imputable tortious act committed by either A of B

must be proven. If liability under article 6:162 BW is established, both material and

personal damages, including non-pecuniary losses, must be compensated.

96 If both parties drive carefully and in compliance with the rules, there is lack of tortious act

on both sides because neither driver could have anticipated the oil puddle. A and X both

bear their own damage. If it can be proved that the road authority had been notified of the

presence of the oil remnants, it may be liable for negligently failing to remove this. (art.

6:162 BW).

97 If one of the drivers suffers an unexpected and debilitating physical condition that causes

the accident, the legal reasoning is that the driver acted wrongfully however was not to

blame. However, under art. 6:162 BW fault is not the sole ground for imputation of a

tortious act. Article 6:165 BW creates a strict liability for tortious acts committed under

the influence of a physical impairment. Therefore, A is fully liable for X’s damages.

98 If the case is such that A is in compliance with the Highway Code and X acted less than

diligently in assessing the situation, X will be held liable in full. If both A and X were to

blame, there will be a reciprocate reduction of the respective damages claims (both

pecuniary and non-pecuniary) in accordance with the percentage of contributory

negligence.

99 If the facts of the case point towards an engine malfunctioning in A’s vehicle, A will be

strictly liable (art. 6:173 BW) vis-à-vis X. If the malfunctioning amounts to the engine

being a defective product, the car manufacturer is also strictly liable under art. 6:185 BW

(EU products liability). In theory, this then gives cause for joint and several strict liability

of A and the manufacturer. However, according to art. 6:173 (2) BW, the liability is

channelled to the manufacturer: A may escape strict liability by showing that the engine

33

failure amounted to a defective product. If, however, X argues either that (1) the defect in

the engine in all likelihood was not caused in the production process but occurred after

the product was put into circulation or (2) his property damage was below the € 500

threshold, then A remains liable.

100 If X is negligent in avoiding the collision, for example, by negligently tailgating A, a

proportionate reduction for contributory negligence (art. 6:101 BW) will ensue.

CASE 3

101 A offers X a ride home in A’s car. X knows that A is too drunk to drive. By driving under

the influence of alcohol, A acts imputably wrongfully against X and is liable under article

6:162 BW. However, consciously taking the passenger seat next to a driver who is clearly

under the influence of alcohol constitutes contributory negligence.129 X’s claim for

compensation against A will therefore be reduced since it was obvious that A had reached

an alcohol level that impaired his driving ability.

CASE 4

102 Here, a motor vehicle collides with a pedestrian due to a mechanical failure. The defect

could have been detected by experts but not by driver A. In fact, the expert mechanic C

should have detected the defect. The defect is a product defect (it does not meet the

objective and reasonable consumer safety expectation) and therefore manufacturer B is

strictly liable (art. 6:185 BW) irrespective of B’s diligence. C may be held personally

liable for negligent inspection (art. 6:162 BW) since inspections of motor vehicles have

the purpose of ensuring safety and accident avoidance. C’s employer is vicariously liable

(art. 6:170 BW). A is also liable, perhaps not on the basis of art. 6:173 BW (owner/holder

strict liability of defective moveables) however, certainly on the basis of art. 185 WVW.

Case law lays down that mechanical failures of vehicles are at the risk of the owner or

holder.

129 See, eg., Rb Rotterdam 19 May 2004, NJF 2004/517.

34

103 All parties are jointly and severally liable (art; 6:102 BW; art. 6:189 BW). Any (social)

insurance benefits will be deducted from the tort claim. Both private health insurance

providers and social security agencies have statutory rights of recourse.