Cyclists and pedestrians are always entitled to compensation!

We cannot repeat it often enough, “as a weak traffic participant you will always be compensated for at least 50% of your damages”. Ignorance of your rights and obligations can in some cases have major consequences. For example, we recently assisted a client who was involved in an accident with a car after cycling through red light. As a result of the accident, this client was unable to work and therefore found himself in financial difficulty. At our first meeting with the client, we asked him why he had waited several months before turning to us. The answer was that this client was afraid of being held liable himself, as he had cycled through a red traffic light and therefore considered it a lost cause. However, this is incorrect. In this article, we will explain why a vulnerable road user is almost always entitled to compensation.

Firstly, Article 185 of the Dutch Road Traffic Act is of great importance here. Based on this article, the driver of a motor vehicle is liable. He can only escape this liability if he can prove force majeure. However, the threshold for this is so high that it is almost impossible to successfully invoke force majeure. It is important to note that vehicle defects (e.g. brakes that fail) or physical ailments (cardiac arrest while driving) do not constitute force majeure. This is because such risks are the responsibility of the driver. The high threshold of force majeure can be deduced from this.

With regard to the question why a weak road user almost always has a right to compensation, the following is important. Motorised vehicles/strong road users can pose a danger to other people and property. This is why a so-called “garantenstellung” rests on these drivers. This means that a strong road user has an additional responsibility to be careful in traffic. After all, a collision can have serious consequences. As a result of this extra duty of care, fairness dictates that a weaker road user/non-motorised party is always entitled to at least 50% of his damage. The reason for this is that the strong road user has violated his extra duty of care and is usually insured. After all, motorised vehicles also have a duty to be alert to mistakes made by weaker traffic participants. Therefore, in the worst case scenario, the client we have mentioned above has a right to compensation of 50% of his damage. This is also referred to as the fairness correction.

It must be noted, however, that this fairness correction does not always apply. Broadly speaking, this correction does not apply in two cases. Firstly, if there is intent or recklessness bordering on intent on the part of the vulnerable road user. Secondly, if the vulnerable road user already has his own insurance that pays for the (post) damages. However, this is almost never the case. In the case of recklessness bordering on intent, one can think of deliberately jumping in front of a car, or something comparable. A practical example is cycling at night, without lights, against the traffic direction, towards cars and trying to avoid them at the last moment. From this it follows that driving through a red light or an incorrect passing manoeuvre is insufficient to assume recklessness bordering on intent.

Based on the above, a vulnerable road user will (almost) always retain his right to compensation. This is also the case if the vulnerable road user himself makes a mistake, for example by not looking properly or by ignoring a red traffic light. Relevant is that this is the division in an accident between a strong and weak road user. Furthermore, the above is a general explanation. In reality, there are more factors to consider. Do you have questions or do you know someone who has been involved in an accident as a strong or weak traffic participant? Please contact us so that a professional can assist you. Completely free of charge.