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.”
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.
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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I am confused. I am new Expat in NL and a car driver. Please community clarify so I can learn: If a bicycle rider recklessly breaks the rules and puts the car and driver in danger with no fear for his life who is then liable for any accident? For example suddenly crossing a 50km/h main street without any signalling first or waiting for cars to pass? I am not talking about pedestrian crossing, I am talking about at any point on the main street. P.S. are dash-cams allowed in NL?
The flow chart in the original post should help with your example, as the answer depends on the cyclist’s age, intentionality of behavior, and other circumstances. Please also keep in mind that this law mostly addresses whose insurance will pay for damage, and doesn’t touch on criminal issues.
Great forum and thank you for this guidance, I will now drive even more cautious and respectful for cyclists. Every country has different rules in this regard, as a foreigner just need to familiarize yourself with them and adhere.
Hi,
I am an expat but have been living in Amsterdam (registered with the municipality, etc.) A car ran into me while I was biking last Friday (it was a minor collision thank goodness). I cannot explicitly assign the fault to either party – I remember looking both ways, it seemed like it was clear to cross a two-way road, then next thing I know his car was about to slam into my left side. Miraculously the only injury I sustained is a bruised arm (and my bike not even a scratch), but the driver messaged me and asked me to pay for replacing his windshield (which was cracked as a result) and avoid paperwork….
What do you think I should do? Again, I can’t say for certain if I was at fault or he was, I thought I had my bases covered but apparently not. Although based on some reading, I shouldn’t be responsible for 100% of the damages? Please advise!
Thank you!
For legal advice, you need a Dutch lawyer. I am neither, but if it were me, I’d tell him ‘no thank you, please proceed with paperwork’. Sad to say, being hit with enough force to crack a laminated glass motor car window (assuming he is telling the truth) has likely done some damage to you even if it does not become evident until much later—hope it is nothing too serious. In the UK, with presumed non-liability for motoring, the insurer would be quite foolhardy to pursue a cyclist for such a loss. But if they do, at least you’ll know who to counterclaim against for a new arm!
Don’t give anything or say anything. He most likely has legal insurance and will try get around being liable because it does not cost him anything anyway. If you get mail from his legal advisor don’t answer it. In the end they’ll back off because they know they can’t win in court
I was knocked down two years when i had just come in the Netherland I sustained injuries but the insurance only paid 300 Euro to repair the bicycle which made me believe that a bicycle is more important than human life despite the severe pain i still endure up now . More than two years am yet to get something from the insurance company or this law is only applicable to only the originals.
Hi David, I just happened to cross your message while looking for some information regarding this Dutch Act. If you are still suffering from this accident I am more than happy to see if some addittional compensation can be reached. This law does not apply to natives only and the insurance company should have been offering bodily injury compensation. Just know, that in every legal case, the devil is in the details.
Hello Mark
Thank you for this informative post.
Do you have any information about the liability rules prior to the changes made in the early 1990s? I have heard it said that Strict Liability has been in existence for a long time in the Netherlands, and that the changes made in the early 1990s were quite small and insignificant. Is this correct?
Thanks
Stephen
ok, so today a man/woman driving a mini cooper hit me while i was biking. he/se was not allowed to turn right, but he/she did it, and hit me. i fell on the ground, got my knee really injured, but he/she decided to keep driving. she/he didnt stop. some nice guys took the number of the car, we called the police adn they took my personal information. they asked me if i need an ambulance but i refused, because i didnt think it was that serious. when i got back home, i realized that my knee was bloated and sore and i decided to go to sint lukas andreas hospital, which is just across the street. they told me that i cannot receive first aid cause i dont have a house doctor( i m an expat here and i didnt know that i have to register to a doctor, i thought that the european health insurance card was just enough). they told me that i have to pay 250 euros and then i can ask a refound from my insurance provider. the fact is that i didnt have those 250 euros to pay for the first aid, and above that, i didnt want to pay for it, as far as it was not my fault.
the question is: can i sue this guy/girl? it s really frustrating cause i m in pain right now and i cannot do anything about it because i dont have the money to go today to the hospital.
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.
yes, i’m curious about medical expenses, too?
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
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.”
This isn’t strict liability. It is just a reverse onus. So in Ontario if the driver can prove that they were not negligent then they are not liable. In the Netherlands they are liable even if they were not negligent. The Ontario provision simply helps the cyclist or pedestrian out a bit by not having the onus of proving the driver was negligent.
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.
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.
– 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.
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)?
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.
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.
Paul, in fact we have the same provisions in our insurance legislation, just that it is little-known.
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
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.
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.
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.
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?
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.