6.6.2 Traffic Liability
6.6.2.1 The Regime of the Dutch Road Traffic Act
Pursuant to Section 185 of the Dutch Road Traffic Act (Wegenverkeerswet), the
owner of a motor vehicle or the person keeping a motor vehicle for another (the
detentor, the possessor in fact; hereafter keeper) is held liable for the damage
caused by a collision of that motor vehicle with a pedestrian or with a cyclist. In
his capacity as the owner or keeper of a motor vehicle, a person or organization is
liable for the conduct of those whom he allows to drive his motor vehicle. As a
consequence, the owner or keeper incurs the risk for the faults of whoever he allows
to drive the vehicle. This is therefore an example of liability for other persons’
faults.
In the event of a collision with pedestrians or bicyclists, the owner/keeper is
liable unless he can persuade the court to accept that there were conditions beyond
the drivers’ control (force majeure). In the past decades, it has become increasingly
difficult in the Netherlands to run a successful defense based on the ground of
“circumstances beyond the driver’s control.”
In theory, this is still an example of fault liability, but there are two factors that
turn this “fault liability” for practical purposes into a kind of strict liability:
1.The shift in the burden of proof—the owner/keeper of the vehicle has to prove
that he did not do anything wrong, rather than the victim having to prove that the
owner/keeper did something wrong. If the owner/keeper of the vehicle cannot
meet the burden of proof, he will be liable.
2.The limitation on what counts as valid excuses—particularly in the case of a
collision involving young children, the requirements for the driver’s conduct are
set at such a high level that at times there seems to be, in effect, strict liability. In
addition, the owner or keeper also bears the risk of any mechanical defects the
vehicle may have even if he had no way of knowing about them.
6.6.2.2 The Loi Badinter
An even more extreme example of strict liability can be found in French law on
traffic liability. The so-calledLoi Badinter, introduced in 1985 by the French
Minister of Justice, provides for a set of principles that are clear and simple. The
basic rule in Article 3 is that the holder of a motor vehicle is liable for damages
suffered by both nonmotorized and motorized victims.
Victims other than drivers of motor vehicles are indemnified for the harm
resulting from their personal injuries regardless of their own fault unless it was
inexcusable and constituted the sole cause of the damage.
Contributory Negligence The compensation is due without proof of fault. There
is noforce majeuredefense. The only defense that is allowed as to nonmotorized
persons is an extremely restricted form of “contributory” negligence (faute inex-
cusable) or the intention of the victim to commit suicide or comparable acts.
116 G.E. van Maanen and J. Hage