Legal liability - when am I liable?
Legal liability applies when a person causes damage or injury to another party. Holding someone accountable for their actions is essential for both sides, and this process is usually initiated by a registered letter. It is important that the person who is held liable legally settles the issue as quickly as possible.
Have you received a letter?
If you receive a letter in the post, a legal letter of liability must be sent to the insurance company. This letter will state exactly what happened, with as much detail as possible, and supporting documents included. In the letter, the insured person will state why they believe they are not liable for the damage that has been suffered by the other party.
Assume responsibility?
Each case of liability is assessed by experts. At this point, it is important that you do not make any statements about yourself and liability. In the worst-case scenario, if you talk about the incident and admit liability, but in fact you were not responsible for the damage, then you could end up paying out for something that happened through no fault of your own.
The person holding the insured person liable for the damage will hire a lawyer or have insurance that covers legal expenses. This might seem daunting at first, but there is no need to panic in this event. A person who activates their own liability insurance will also have access to legal assistance and the professional advice of lawyers.
Prior to the insurer picking up the claim there are several things that must be considered:
Is the policy detail correct for the person insured?
Is the insurance capacity correct?
Has the premium been paid?
Are there any specific clauses in the policy and have they been applied?
If this information is correct, the claim will be processed. It is important therefore, to keep track of your insurance policy, to ensure that information remains correct and that you continue to pay your premium on time. Without this detail being accurate, the insurer might not even consider the claim.
Why am I liable?
In Dutch law, the main rule for liability is: ‘without liability, there is no compensation’. Any person who suffers damage has the right to receive compensation for the damage they have suffered. In principle, any person can be held liable, but this liability must be tested against the requirements of the law. There are several conditions that must be matched to meet this threshold, including:
Unlawfulness: if a person’s right is infringed
Accountability: is it really the fault of the party being held liable?
Damage: does the case concern material or immaterial damage?
A connection: is the damage specifically a result of an action by the liable party?
Relativity: is the violated rule specifically for this situation?
If both parties are at fault
Both parties may be at fault in a traffic accident. The party held liable should have given way, but the other party drove above the speed limit, for instance. In a case like that, the liable party does not have to compensate for all damage, as the other party is also at fault. There are also special rules that apply to children where compensation for damage is concerned. Alongside these two examples there are a few exceptions that must be considered, it is not always the case that a person held liable is by definition at fault, and therefore must make good the damages through compensation.
Forms of liability
There are a few different ways in which a party can be held liable. The specific policy will determine what is covered in terms of liability.
General liability: when an insured person has caused damage to a person, goods, or property.
Risk liability: the insured person is liable for damage caused by their own children, property, by employees, or by a pet.
Product liability: when property damage or injury occurs from a product that a person’s company has sold, made, modified, handled, imported, or exported.
Professional liability: damage caused by professionals in terms of financial damage, not property damage or personal injury.
Environmental liability: if the insured company is held liable for environmental damage.
Employer’s liability: if the company of the insured is held liable for damage or injury to employees due to an industrial accident, or en route to and from the company workplace. This type of liability also applies to occupational diseases and damage to employees’ property.
All of these forms of liability are important as they help to clarify what the insurance will pay out. Always read the small print of your insurance policy and contact your insurer if you have any questions about what is covered.
Responsible for a traffic accident
Any party held liable for the consequences of a traffic accident can forward the claim on to their liability insurer. The car insurance company will then handle the claim and the compensation. The insurer may ask additional questions whilst processing the claim. The injured party can then be compensated.
If the insurance has a bonus-malus agreement or a no-claim clause, the premium will increase after the claim has been processed. It does not matter how high the compensation is in terms of raising the premium cost, the insurer can calculate the insured losses in claim-free years and bonus.
Liability as a pedestrian or cyclist
You can also be held liable as a pedestrian or cyclist. The Liability Insurance for Private Individuals (AVP) must be used in this instance. The letter of notice of liability must be forwarded to the insurer, and another letter to the injured party. The person liable must disclose the details of their insurance policy in this letter.
Liability without insurance
If the liable party has no insurance, they must pay for the damages. In this case, the party must discuss the question of guilt, the amount of damage, and any other issues with the injured party. Any person who drives without the relevant insurance can have the damages handled through the Dutch Motor Traffic Guarantee Fund (Waarborgfonds Motorverkeer). The fund will recover the compensation from the uninsured party at a later date, so it does not mean that compensation does not have to be paid by the uninsured.
Driving without insurance is a crime and can involve a fine. In addition, damage claims can be quite expensive, so it is always advisable to take out the third liability insurance (WA-verzekering).
No reimbursement clauses
There are two cases in which an insured person will not be reimbursed; intent and recklessness. Any person who purposely scratches or damages a car after drinking too much alcohol will be held liable and asked to pay for the damages themselves. Any person who is driving over the speed limit deliberately and hits another car is deemed to have been reckless and will also not be covered by their insurance policy. This is why it is always important to understand the framework of the law and your own insurance policy to know your responsibilities and legal liabilities in the event of an accident.