BICYCLE DUTCH

All about cycling in the Netherlands

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.”

Dutch Cycling 1980s

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.

strict-liability

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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20 comments on “Strict liability in the Netherlands

  1. FrankR
    28 April 2014

    Mark, this is an excellent article but what I’m not certain about is who pays for the medical bills incurred by the cyclist? Is this included in the amount payable from the motorist’s insurer or is it paid for by the state?

    What I’m asking is, does the liability cover only the damage to the cyclist’s bicycle and equipment or does it cover injuries to the person as well? I ask this as European countries usually have more comprehensive national health care schemes than other nations and people reading this may assume different things about what is said here based on their country of origin.

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  4. AngelG
    27 November 2013

    Need some advice on an incident I was involved in earlier tonight.

    I was riding on a street near home, which is one way for cars, when I saw a car coming towards me. I was as close to the parked cars on my right as I could be and still ride safely. The oncoming car then stopped next to a driveway entrance. I figured they’d stopped so I could get past, so I continued riding and began to ride past the car using the driveway. My front wheel then slipped on some wet leaves (or something similar) and my bike tipped to the left. As I had my 3yr old daughter on the back in her bike seat I was unable to hold the bike upright, and it fell towards the car. I was also tipped off balance and I fell against the drivers door, near the door handle. I shouted for help as I couldn’t lift the bike or get out from between it and the car, and I was very concerned for my daughter. Some other people on the street came to my assistance, and as we got my bike upright, with a very upset and crying little girl on the back, the driver started on me, saying the accident was my fault as I was driving the wrong way down the street, that I had tried to go through a gap too small for my bike, that I should have waited till she drove on rather than try to go past her and that any damage to her car would be my responsibility to pay for.
    After making sure my daughter hadn’t been hurt in any way, I tried to explain to the driver that I hadn’t hit her car, but had fallen into it because my front wheel slipped on something, that there was plenty of space for me to get by and I was not riding the wrong way as bikes are permitted to travel either way on this street. By now some people had taken out their mobiles and were using the light to check the car for damage, of which there was no sign of any but it was 6pm, dark and raining, the car was black, so not easy to see clearly. I had already checked my bike and my daughters bike seat for damage, and found none, not even a paint mark from the car.
    The driver then demanded my name and number, which I gave without hesitation, and I then got the comment “I hope you’re not lying to me and this is your actual number” When I asked for her details in return, she just walked away. I was still very shaken by the incident, and didn’t think to take photos of the car where myself and my daughters bike seat had fallen against it, nor to get the registration number.
    I’m now very worried that this driver is going to get nasty and try to get me to pay for (in my opinion) non-existent damage due to an incident in which I feel I did nothing wrong, it was just unlucky. I know that if the car had been moving Article 185 would likely be applied, but as the car was stationary in the road, not parked in a parking space, just stopped to drop off passengers, I’m not sure what the legal situation is.
    Can anyone help me with this?

  5. iitm (@iitm)
    10 April 2013

    For example, in the case of a cyclist who entered the opposite lane and crashed into an oncoming car, the court of Neuburg an der Donau in Germany refused the motorist’s demand for 100% damages and established a 3/4 liability to the cyclist and 1/4 to the motorist. The cyclist in this case has to pay 75% of the TOTAL damages and the motorist 25%. ‘TOTAL’ is important here, as damage to the car could be a few scratches and to the cyclist lifelong disability. In such a case the cyclist (or his liability insurance) would have to pay 75% of the costs of repair for the car’s paintwork and the motorist’s insurance would have to contribute 25% to the cyclist’s lifelong subsistence: http://iitm.be/OperRisk

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  7. Kevin Love
    22 February 2013

    Here in Ontario we have a similar Strict Liability law. It seems even more protective of non-motor vehicle road users than the Dutch version, because it does protect third parties.

    If a motor vehicle causes loss or damage to any person, the owner or operator of the motor vehicle is automatically deemed liable. To avoid paying damages, the onus of proof is upon the motor vehicle owner or operator to prove that the other party was at fault.

    Note that it is owner or operator. Even if the car is stolen, the owner is still legally liable for any damage caused by it.

    Here is the law, from:

    http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90h08_e.htm#BK289

    “When loss or damage is sustained by any person by reason of a motor vehicle on a highway, the onus of proof that the loss or damage did not arise through the negligence or improper conduct of the owner, driver, lessee or operator of the motor vehicle is upon the owner, driver, lessee or operator of the motor vehicle.”

  8. Examined Spoke
    21 February 2013

    I think it’s worthwhile emphasizing that this law affects only civil damages, and has nothing to do with criminal fault. This is a mistake I see sometimes. Drivers don’t get cited, fined, or jailed because of 185. The closest analog in U.S. law may be the dog bite statutes, which make pet owners “strictly liable” for human injury their pets cause (unless there are extenuating circumstances like provocation) but don’t jail owners.

  9. Paul M
    21 February 2013

    Very enlightening. I am not surprised to note that provisions remain for fault to be attributed to the vulnerable party, because that does remain possible even if, in the UK context at least, it is the less likely explanation. It does however mean that some heat remains in the argument – the problem with the UK system is that a plaintiff has to show both damage and fault (tort) to succeed in a claim, and that means blame or accusation. The beauty of strict liability is that blame becomes irrelevant, and no-one needs to feel humiliated or embarrassed about the claim or its outcome. If you retain a get-out for the vulnerable party’s fault, an insurance company is quite likely to argue ruthlessly and loudly that the blame lies not with their insured but the other party, because that is how they avoid paying out the claim and we all know that insurance companies love collecting premiums but hate paying out claims. So we come back to the blame game and it must surely be inevitable that the driver will be dragged into this, on the basis that it must surely be someone else fault so if it isn’t the plaintiff’s. it must be the respondent’s (motorist’s)?

    I also note the limitations on who is protected. Why only non-motorised road users? Are not riders of mopeds, or indeed larger motorcycles, also vulnerable to the actions of drivers of four-wheel steel boxes? Certainly you see significant casualty rates among bikers, especially in countries where, due presumably to climate, “motos” remain more popular than they do in northern Europe.

    A good strict or proportionate liability rule would also protect drivers of small cars against the errors or big trucks, in other words in any case where one person is significantly more vulnerable than the other.

    And why exclude passengers from claiming against their driver under strict liability? Being inside the box instead of outside I dare say they are less vulnerable, but we hear of so many cases where passengers are killed or seriously injured due to getting into a car with a reckless driver.

    Finally, a thread which runs through so many discussions of this type is whether it will promote cycling or not. Frankly, I don’t give a monkey’s whether it does or it doesn’t, it is a gross injustice, perpretated in only five out of 27 EU countries, of which four have the UK “common law” system of law and the other is Romania, to force someone who has suffered life-changing injuries to fight tooth and nail over several years to get compensation which will permit them to function, although not in the way they would have done if they had not been injured in the first place.

    • Jan
      22 February 2013

      - I also note the limitations on who is protected. Why only non-motorised road users?

      This is related to insurance. All motorized vehicles, including mopeds and motorcycles, have a mandatory liability insurance. This levels the playing ground, in case of an accident, the two insurance companies will search for a quick split of costs based on a rough estimation of fault, trying to avoid a lengthy and costly court-case.

      Pedestrians and bike-riders are not just physically vulnerable, but also legally. In case of an accident, they’ll find themselves against an insurance company with nearly unlimited resources, trying to avoid the claim.

  10. 3rdWorldCyclinginGB
    21 February 2013

    But if you live in a country like the UK that has very low cycling rates and poorly connected and separated infrastructure, wouldn’t it be useful to have the antidote while the vaccine is being developed (which is going to take a very long time)?

  11. stripymoggie
    21 February 2013

    Loving van Kooten & de Bie. :-) Thank you for explaining liability law. Law is a consequence of high cycling rate, not cause. My mum once was witness in court of case of driver who tried to blame an older teenager for accident on the grounds that teenager jumped red light. Judge awarded 100% of cost to driver because witness (ie. my mum) could not corroborate driver’s version of events and teenager was in hospital for some time.

  12. Paul Martin
    21 February 2013

    Excellent post, Mark. Thank you for taking the time to untangle, translate (not just from Dutch but from ‘Legal-ese’) and post this.

    We have so much that is wrong with cycling in Australia – lack of decent infrastructure, legal protection such as this (our protection is effectively zero) and many other impediments to cycling.

    • Fiona (in Sydney)
      24 February 2013

      Paul, in fact we have the same provisions in our insurance legislation, just that it is little-known.

      • Kelli (Brisbane)
        23 October 2013

        Fiona, just saw your post about there being similar strict liability provisions in insurance legislation that is not widely known. I am curious about this. Are you able to provide more details so I can look it up. Many thanks, Kelli

        • Harry
          14 April 2014

          Kelli

          NSW has blameless accident provisions in the Motor Accidents Compensation Act 1999 (if an accident is considered blameless, the insured driver is deemed at fault and liable to pay damages).

          As at 2014, the provisions have been interpreted by the Court of Appeal to apply to pedestrians, but not yet cyclists.

          That is, cyclists are not yet afforded the protections that the blameless scheme offers to pedestrians.

  13. Paul
    21 February 2013

    Thank you for clarifying this. I admit that I believed the “motorists always at fault” part of the myth – because I hadn’t been told otherwise, until now.

    • kruidig meisje
      21 February 2013

      Mark very detailedly and clearly explained how it works that the “motorist is always at fault unless the cyclist is very clearly reckless or at fault”. When in doubt, it’s the stronger party who should be able to prevent the accident. And considering all safety features a motorist bought in his vehicle, that is what a motorist should be able to do.
      Also it attributes that a cyclist (most probably) attributes less impact (joules) to an accident than a motorist, both via weight and via speed, but will (most probably) receive most damage from the same impact. This law tries to accomodate a fair outcome to this inequality.
      Fair being rather difficult to translate into rules, which they still did a pretty OK job I think.

  14. Gary
    21 February 2013

    Thank you for the informative post.

    I’m curious, is there a similar law regarding bicycles and pedestrians? If a pedestrian is injured after stepping into a cycle path, who is at fault?

    • bicycledutch
      21 February 2013

      No, this law really only works between one motor vehicle user and one non-motorised road user. In case a pedestrian steps into the cycle path without looking it seems reasonable that that would be the fault of that pedestrian. But in that case the normal liability insurance most people have would have to be addressed.

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