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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.
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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).
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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.
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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.
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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.
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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
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‘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
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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.
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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.