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Jun 13, 2013

Are Dutch motorists strictly liable if they collide with cyclists?

There’s a common view that a key reason cycling is so popular in The Netherlands is because motorists are strictly liable for damages in the event they collide with a cyclist. But is it true?

Alan Davies — Editor of The Urbanist

Alan Davies

Editor of The Urbanist

How liability in collisions between motorists and cyclists is worked out in The Netherlands

It’s widely believed elsewhere that motorists in the Netherlands are strictly liable for damages and injuries if they collide with a cyclist, even if the cyclist is at fault. It’s thought Dutch drivers are therefore more cautious, making cycling safer and resulting in more riders.

Strict liability is an attractive meme but it’s not true, according to Mark Wagenbuur at Cycling NL. The Dutch don’t even have an equivalent term in their language for strict liability. The key reason for the high level of cycling in the Netherlands, he says, is the high standard of cycling infrastructure.

Nevertheless, the Dutch law on who’s liable for the cost of damages and injuries in collisions between motorists and cyclists takes a sympathetic view of the cyclist, especially if he’s a child under 14 years of age.

The objective of (s 185) 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.

Mr Wagenbuur’s article, Strict liability in the Netherlands, is lengthy and is translated from Dutch. So here’s my summary of the key points (also see first exhibit) but bear in mind I’m not a lawyer. Those who’re interested in the detail should read the article.

With one relatively uncommon exception I’ll discuss below, a Dutch motorist is liable for all damages/injuries in a collision with a cyclists if the rider is a child under 14 years of age, even if the crash was the child’s fault.

If the cyclist is an adult, the motorist is liable for 100% of the damages/injuries unless she can show the incident was beyond her control, or the cyclist was at fault – that’s not easy however.

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.

Even if she can show either or both of these conditions apply, the driver is still liable for 50% of the damages/injuries. Responsibility for the other half is determined by the Court according to the degree of fault of the two parties.

The exception is that a motorist has no liability if she can show the rider caused the damage on purpose, or his behaviour constituted “recklessness verging on intent”. That applies even if the cyclist is a child.

Thus for practical purposes, strict liability only applies to children under 14 years of age in the Netherlands. In the case of adults, the motorist isn’t automatically in the wrong. However the law recognises both the cyclist’s greater vulnerability to serious injury and the motorist’s greater capacity to pay by virtue of mandatory personal injury insurance.

Given that in Australia most cyclists are also motorists (car ownership is much lower in The Netherlands), this looks like a solution that would suit Australian circumstances particularly well. Interestingly, a commenter on Mr Wagenbuur’s article who’s from Australia says “in fact we have the same provisions in our insurance legislation, (it’s) just that it’s little known”.

I don’t know if that claim is correct or not, but if it is it doesn’t seem to be making any difference to the way many Australian drivers behave behind the wheel. That’s consistent with Mr Wagenbuur’s argument that the civil liability law doesn’t materially affect the propensity to cycle in the Netherlands because, presumably, it doesn’t signficantly alter the behaviour of drivers. Perhaps Australian motorists would take greater care if there were a comparable sharing of responsibility under the road rules, with offenders prosecuted by police.

The law isn’t the primary explanation for high cycling rates in the Netherlands:

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.

Mr Wagenbuur finishes his article on a light note. He tells us that in 1997 the Dutch government sought to extend the strict liability that applies to child cyclists to adults. However the move failed.

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.

The second exhibit is a parody of fears the proposed change, if implemented, would’ve led to selfish and reckless behaviour by cyclists.

A parody of motorists' fears of what strict liability would lead to

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9 thoughts on “Are Dutch motorists strictly liable if they collide with cyclists?

  1. Burke John

    Ken above..being dragged from their cars and charging motorists their full costs is the same thing in my thinking.

    My own estimate for the preferential treatment of motoring exceeds 100 billion per year in Australia. That is a figure so extraordinary that it seems ridiculous. But forget about social security or medicare costs, cars are the really big thing.

    The Dutch motorist faces a much greater risk of liability a s far as I can see. A car runnning over a bike here leads to antipathy towards cyclists and inevitably a renewed call for stricter MHL compliance. Go figure.

  2. ken hell

    Hi John, in a free society we can’t drag motorists from their cars, but what we can do is charge them for the full costs their use of motor vehicles imposes on society. At the moment, they are causing huge damage to productivity, the cost of which they are passing onto others – i.e. businesses, consumers and the balance of trade. The problem is, society has lied to itself about this for a long time and motorists don’t want to hear the truth on that – they think they’re overtaxed. There is a simple, but not easy solution to that.

  3. Burke John

    Yes Alan significant but nowhere near as significant as the difference in cycling trips.

    Ken Hell #3, thanks for your link to the story of Stevenage. I have long felt that the real problem for cycling uptake in Australia has been the preeminence of car culture rather than though along with a lack of infrastructure. Your link illuminates that probability very neatly and very much supports a position I have often banged on about here.

    You have to make cycling not just easy, but easier than motoring. We have to be dragged from our cars screaming, but afterwards its a better thing, like giving up smoking.

    Anyway I’ll save your link myself for the next round of MHL discussions here as MHL are clearly just a part of car culture and thanks again.

  4. Alan Davies

    Burke John #4:

    I’d still regard that as a significant difference. But the figure I linked to above is much bigger – 63% of HHs in Amsterdam have no car compared to 14% in Sydney. Amsterdam has historically had low car ownership – in 1958 there was only one car for every 23 inhabitants compared to 1 for every 7.5 residents of Paris and 1 in 10 in both Stockholm and Brussels.

  5. Burke John

    477 per thousand in the Netherlands, 632 per thousand in Australia. These figures (a bit old 2002) refer to levels of car ownership indicating that the differential is not so great as is the intuitive position.

    A change in the law here might help driving attitudes though and consequently cycling numbers. The Dutch simply don’t believe that motorists could be regularly aggressive and dangerous as is the case here.

  6. ken hell

    I agree with much of this article, but there are a couple of points I’d contend.

    Firstly, Alan, you state “If the cyclist is an adult, the motorist is liable for 100% of the damages/injuries unless she can show the incident was beyond her control, or the cyclist was at fault – that’s not easy however.”

    This is strict liability. It’s no different to the range of strict liability offences in Australian road rules – e.g. you can contest a speeding fine in court if the throttle on your car was stuck. The key element of a strict liability offence is the shift of onus onto the defendant to prove they should not be held liable. This is not the case at present, where motorists can merely cast doubt on their blame for a collision to avoid being found liable.

    The major difference is that in the latter example, I’m addressing criminal law (road rules), whereas the Dutch provisions at issue are for civil liability. In Australia, civil liability is determined on the balance of probabilities – this is friendlier to cyclists than the corresponding criminal provisions (road rules), in that merely casting doubt won’t get you as far.

    Also, serious doubt has been cast on the ‘built it and they will come’ theory. In the linked case study, it is suggested that cycling participation thrives where convenient alternatives (principally motoring) do not exist as much. Just building safe cycling infrastructure may not be enough.

  7. James Steward

    “The key reason for the high level of cycling in the Netherlands, he says, is the high standard of cycling infrastructure.”

    It is also basically flat, and bicycle riding is an ingrained part of their culture.

    “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.”

    This is the key to getting more people to ride a bicycle.

    Fear from the rear (getting hit from behind) is likely high on the list of insecurities – despite statistics showing it is not a likely way to go. Vehicles passing close by is also disturbing for many novices and those lacking confidence. The proposed minimum safe passing distance of 1.5m (Safe Cycling Australia) will partially address this.

    Blatant disregard by motorists to give way is by far the most common cause of severe injury and death. Until the laws are changed such that motorists are heavily penalised for failing to give way to cyclists (when a cyclist has right of way).

    Bike farcilities (note intientionally misspelled) around Melbourne, largely result in increased real danger while presenting a cozy safe feeling to the unsuspecting bike rider. Most bike lanes marked next to parallel parked cars – if used – put the rider well within the door zone, and in harms way. Statistics show this is true, as well as simple logic. Then there are bike lanes for through cycle traffic marked to the left of left turn lanes, bike lanes with road furniture, bike lanes mixed with pedestrians and bike lanes that end on a footpath. The list goes on. I have not come across a bike lane that is not more dangerous to use than without, or redundant.

    Then there’s helmet laws. They alone imply that bicycling is dangerous – more so than other sports, though the hospitalisation rates are lower, and more so than other modes of transport such as walking, yet statistics show walking in the urban jungle is as or more dangerous.

    No, there’s a lot more to do than implant farcilities before Australia takes to human powered transport.

  8. hk

    Given that the infrastructure quality and quantity available to cyclists varies significantly across the 31 municipalities of the Melbourne urban region, one would expect cycle use to mirror the level of perceived safety offered. That would be according to the Mark Wagenbuur statement that, “The key reason for the high level of cycling in the Netherlands is the high standard of cycling infrastructure.”
    To the best of my knowledge there is no comparative study of PERCEIVED safety variation by municipality. TAC has accident numbers but these are next to meaningless for comparative purposes unless the time spent cycling in a municipality are also known. Time use would then enable exposure risk rates of cyclists to be modelled.