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.