The main ruling: Everyone carries their own damage
When one suffers damage, in principle one carries this themselves. Only when there is a clear foundation, one can claim these damages on someone else.
Claiming damage on another person
Article 6:162 BW (Dutch Civil Code) can offer such a foundation. This law article offers you the opportunity to claim the damage on another person, when this person has wrongfully behave towards you, the wrongful act can be attributed to the causer and the wrongful act has caused damage.
On the grounds of the law an act (or the omission of it) is wrongful if:
- It infringes your entitled rights
- The causer of the damage has violated his legal duty
- The causer’s conduct was in violation with the unwritten laws of society
An infringement of your rights
The sole fact that you, through the actions of another (or the omission of actions) have experienced damage, is not enough to qualify said actions as wrongful. The criterium is not: has the action caused damage, but was the action unlawful as such. An example: someone who breaks your window with a ball infringes your property rights, but that is not because of the action being unlawful, but because of the repurcussions of the action, which is the destruction of the window.
When are your property rights infringed? When there is direct, immediate and deliberate infringement of your property rights. For instance, that same ball thrower who yells: “look at that pretty window go!”
Conflict with statutory duty?
During the determining of laws, the legislator weighs the interests of the various involved parties against each other. When someone fails their legal duty, he also acts against the weighing of the different interests by the legislator. This is wrongful in principle. For instance, this is the case when someone does not comply with the terms of a permit.
Unwritten laws in society
What the unwritten laws of society are, nobody can say for certain. This differs from case to case. A lot depends on the concrete circumstances of the situation. Our attorneys would gladly guarantee a certain outcome of a procedure. This would obviously give a lot of clarity for all of the involved. Unfortunately this is not always possible. That would also be unjust towards you and others seeking legal help, as everyone is entitled to an assessment of their own personal situation.
In a verdict from 1965, known as the Kelderluik-case, the Supreme Court has given non-limiting criteria on the basis of which can be assessed if an act is in violation of that which society deems acceptable. One can think of questions such as:
- What is the chance that a certain act causes damage to someone else? The higher this chance, the sooner that act is wrongful;
- How probable is it that someone is not paying attention, which means that he doesn’t prepare for an act, so that he can’t anticipate on it? The bigger this probability, the more careful the causer should have been. If he has not done this, the qualification of wrongful act will be given much more quickly.
- How severe are the consequences? The more serious the (possible) harm, the more the causer will have to work to avoid this damage
If someone commits a wrongful act which causes you to receive damage, this can only be claimed on the causer if the wrongful act can be attributed to him. This is the case if the wrongful act is the fault of the causer, or when it, based on the law or on perceptions which apply in traffic, can be attributed to him.
Guilt occurs when the causer of the damage can be reproached in the case. This means that there is no guilt when the act could be reproached on someone, but not on this specific person. This occurs when the causer of the damage is under 14 years of age, in which case the parents are to blame.
There is also no guilt when the specific act is usually a reason to reproach a person, but not at this specific moment. Think of an act in which the person is in a certain state of mind, such as fear of personal harm.
Attribution on the basis of the law or traffic perceptions
When a wrongful act cannot be attributed to guilt, it may be attributed to him on the basis of the law or on the interpretations applicable in traffic . An example is article 6:165 of the Dutch Civil Code. According to this article a wrongful act, which is performed under mental or physical shortcomings, can still be attributed to the causer of the damage, even if there is no guilt.
If a wrongful act is attributed to the causer of damage on the basis of perceptions in traffic, depends on all the specific circumstances of this specific case, especially the capacity of the causer of damage and the nature of his act. An example is a wrongful act which can be attributed to his company. Think of illegal waste disposal.
As mentioned earlier, the causer can only be attributed the damage if it has a causal link to his or her actions, thus when the cause of the damage lies in the actions (themselves).
When someone breaks a window by throwing a ball, is obligated to refund the repair of the damage. If there is any damage caused in the repair, for instance the window frame breaks when the repairman makes a mistake, the thrower of the ball does not have to refund this any more.
When your damage is not caused by a wrongful act, or if the wrongful act can not be attributed to anybody, the law can still offer opportunities to claim. In certain specific cases the legislator has determined that someone can be liable without him performing a wrongful act and/or the absence of guilt. The liability is caused by a risk that is realised (consciously or unconsciously), and this is called risk liability. This occurs to parents (when a child is under 14), employers (for their employees), on self-employed workers and businesses (for contracted non-subordinates), on the represented (for their representatives), on owners (for defects in their store or land) and on pet owners (for their pets)
If you have any questions on liability law or you want to present a specific case? Contact us.