The truth about 'strict liability' in The Netherlands

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The truth about 'strict liability' in The Netherlands

Postby Ross » Thu Feb 21, 2013 5:58 pm

http://bicycledutch.wordpress.com/2013/ ... therlands/

It is a myth that is really only believed outside the Netherlands: “Because there is strict liability in the Netherlands, drivers are more cautious around cyclists, and that leads to more cycling” some even take this a step further adding “and because ‘we’ don’t have strict liability, we’ll never have such levels of cycling.”
Dutch Cycling 1980s

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

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

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

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

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

Dutch has no catchy phrase for strict liability. 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.

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

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

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

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

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

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

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

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

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

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

[youtube]http://www.youtube.com/watch?feature=player_embedded&v=h8FKHfh1L7Q[/youtube]

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.

If you want to read more about strict liability: David Hembrow has covered this topic as well on his blog - http://www.aviewfromthecyclepath.com/20 ... y-not.html
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by BNA » Thu Feb 21, 2013 6:09 pm

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Re: The truth about 'strict liability' in The Netherlands

Postby il padrone » Thu Feb 21, 2013 6:09 pm

None of this is substantially different from what I understood strict liability to constitute :|
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Re: The truth about 'strict liability' in The Netherlands

Postby human909 » Fri Feb 22, 2013 12:13 am

il padrone wrote:None of this is substantially different from what I understood strict liability to constitute :|


Same here. :)

If this was supposed to be some ACA style exposé then I'm a little disappointed! :mrgreen:
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Re: The truth about 'strict liability' in The Netherlands

Postby wilddemon » Fri Feb 22, 2013 6:40 am

Good read.

Probably should have put "do not read if you are already a know-it-all" in the title.
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Re: The truth about 'strict liability' in The Netherlands

Postby human909 » Fri Feb 22, 2013 7:49 am

wilddemon wrote:Probably should have put "do not read if you are already a know-it-all" in the title.

:lol: :lol: Fair enough, I think a couple of us deserved that.

But seriously. The title of the post and the tone of the article comes across like there is some great misconception about "strict liability". This assumption I do not believe is correct, furthermore no is a fair bit of the article's interpretation. For example.

FROM THE ARTICLE
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.
Few people would seriously assume this. However, evidence presented by the article itself shows that the system is set up to hold motorist accountable even if a 'mistake' is made by the cyclist.

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.
Huh!? Does it seriously think that costs and penalties imposed does not change the way people will behave? That is absurd. Most people respond very rationally to increases in penalties and costs. Accidents don't just happen they are caused, and most accidents are caused because drivers simply don't care because the consequences are minimal.

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.
Again, the focus on the financial compensation but not the deterrent factor is misguided and naive.

Yet oddly enough this naivety is disappears when the author discusses that the effect of removing the ‘under 14’ regulations has been parodied that it could lead to lead to reckless behaviour of cyclists.
Last edited by human909 on Fri Feb 22, 2013 8:38 am, edited 1 time in total.
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Re: The truth about 'strict liability' in The Netherlands

Postby wilddemon » Fri Feb 22, 2013 8:29 am

Lol good sport :D

I haven't been around the traps as long as you blokes so it was all new for me. Agree with you on a lot of points; drivers would become more cautious with this rule. Drivers having a rational response? Yes in that they will try to avoid penalty, but would probably have more hit and runs as well. If the motorist is not at fault but still financially liable (or half liable) then their insurance would pay, and motorist would pay an excess? I can't imagine that going down too well. If we had something like this I wouldn't mind a compromise. For instance if it was shared fault that the cyclist pay excess, or share excess costs. Maybe not viable, just thinking out loud.
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Re: The truth about 'strict liability' in The Netherlands

Postby human909 » Fri Feb 22, 2013 8:54 am

The notion of fault is all debatable. In my opinion in most cases in a collision BOTH parties are at fault! Often one party failed to give way and the other party failed to take action to avoid the collision. The Dutch law comes from the standpoint that a motor vehicle has greater duty of care so even if a cyclist made a mistake then that does not absolve them from their duty of car. This seems a very sensible attitude.

Sure it may not go down to well for the motorists but it normally does not go down to well for the cyclist when a motor vehicle hits a cyclist.

wilddemon wrote:For instance if it was shared fault that the cyclist pay excess, or share excess costs. Maybe not viable, just thinking out loud.

Well if the cyclist made a mistake then they may be facing half the liability! As far as the amount and paying excess goes that is between you and your insurer. That is a private contract and not governed by tort laws (ie 'liability' laws).
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Re: The truth about 'strict liability' in The Netherlands

Postby sogood » Fri Feb 22, 2013 9:40 am

Good factual information. Definitely cleared the fog of how some enthusiasts have tried to portrayed "strict liability".
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Re: The truth about 'strict liability' in The Netherlands

Postby high_tea » Fri Feb 22, 2013 9:47 am

I thought it was a good article. It actually discusses the substantive law, which is unusual and helpful.

As far as misconceptions go, this makes it crystal clear that it's about civil, not criminal, liability. It also forebears from any mention of onus or standard. Hopefully this will clear up some of the more colourful misconceptions out there.
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Re: The truth about 'strict liability' in The Netherlands

Postby KonaCommuter » Sat Feb 23, 2013 5:41 pm

Treat cars like firearms.

If someone gets injured or killed then serious gaol time and social exclusion should be norm not the exception.
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Re: The truth about 'strict liability' in The Netherlands

Postby high_tea » Sat Feb 23, 2013 7:02 pm

KonaCommuter wrote:Treat cars like firearms.

If someone gets injured or killed then serious gaol time and social exclusion should be norm not the exception.


That's about sentencing policy, though. The premise of strict liability is that it should be easier to make the offence out. Apples/oranges.
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Re: The truth about 'strict liability' in The Netherlands

Postby il padrone » Sat Feb 23, 2013 7:12 pm

high_tea wrote:
KonaCommuter wrote:Treat cars like firearms.

If someone gets injured or killed then serious gaol time and social exclusion should be norm not the exception.


That's about sentencing policy, though. The premise of strict liability is that it should be easier to make the offence out. Apples/oranges.

But not even that. As the OP's quote and your comments point out, it's not about offences. It's about apportioning responsibility, and ascribing greater responsibility upon drivers of more dangerous motorized vehicles, in civil cases. Apples/oranges/cucumbers.
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Re: The truth about 'strict liability' in The Netherlands

Postby wellington_street » Mon Feb 25, 2013 1:00 pm

Very good article, clearly spelling it out.

I disagree with strict liability insofar as it punishes motorists who are not at fault. I believe you should be held responsible for your actions and the fault should always lie with the road user who broke the law. 'Failing to avoid a collision' is very different to 'failing to give way' as the former is very much unavoidable in the majority of situations whereas the latter is very much avoidable in the majority of situations.
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Re: The truth about 'strict liability' in The Netherlands

Postby human909 » Mon Feb 25, 2013 1:48 pm

wellington_street wrote:'Failing to avoid a collision' is very different to 'failing to give way' as the former is very much unavoidable in the majority of situations whereas the latter is very much avoidable in the majority of situations.

I have no idea how you come to this conclusion.

I have personally avoided hundreds if not thousands of collisions in my driving life time. It is part of what we do every day while driving. There have been countless of collision that I have avoided that if a collision had occurred it would have been the other party's fault for not giving way.

wellington_street wrote:I believe you should be held responsible for your actions and the fault should always lie with the road user who broke the law.

How are cyclists in Holland not being held responsible for their own actions?

How is it fair and equitable that a minor bingle between a 16 year old boy on a $300 bike be held responsible for $10,000 damages to somebody's Rolls Royce?
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Re: The truth about 'strict liability' in The Netherlands

Postby wellington_street » Mon Feb 25, 2013 2:02 pm

human909 wrote:
wellington_street wrote:'Failing to avoid a collision' is very different to 'failing to give way' as the former is very much unavoidable in the majority of situations whereas the latter is very much avoidable in the majority of situations.

I have no idea how you come to this conclusion.

I have personally avoided hundreds if not thousands of collisions in my driving life time. It is part of what we do every day while driving. There have been countless of collision that I have avoided that if a collision had occurred it would have been the other party's fault for not giving way.


Sorry my post wasn't clear. When you actually fail to avoid a collision it is because it was unavoidable in the majority of situations.

human909 wrote:
wellington_street wrote:I believe you should be held responsible for your actions and the fault should always lie with the road user who broke the law.

How are cyclists in Holland not being held responsible for their own actions?

How is it fair and equitable that a minor bingle between a 16 year old boy on a $300 bike be held responsible for $10,000 damages to somebody's Rolls Royce?


Well in Australia (not sure about The Netherlands) a 16 year old boy can legally drive a motor vehicle so the level of responsibility is certainly there.

I don't see that it is fair and equitable that a motorist should be punished for something they were unable to avoid and that was created due to the breaking of road rules by another party.
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Re: The truth about 'strict liability' in The Netherlands

Postby high_tea » Mon Feb 25, 2013 2:15 pm

wellington_street wrote:Very good article, clearly spelling it out.

I disagree with strict liability insofar as it punishes motorists who are not at fault. I believe you should be held responsible for your actions and the fault should always lie with the road user who broke the law. 'Failing to avoid a collision' is very different to 'failing to give way' as the former is very much unavoidable in the majority of situations whereas the latter is very much avoidable in the majority of situations.

Imposing liability in the absence of fault is exactly what strict liability is about. That doesn't leave much for you to agree with. :D
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