The Kelderluik judgment personal injury forms one of the most important foundations of Dutch liability law. In countless personal injury cases, the discussion revolves around the creation of a hazardous situation: should someone have taken measures to prevent injury? That very question is answered on the basis of the criteria from the Kelderluik judgment.

In practice we see that insurers apply these criteria selectively and deny liability. Where other lawyers then drop out, we press on. If necessary out of court, but if needed also through partial dispute proceedings, preliminary expert reports and proceedings on the merits.

What is the Kelderluik judgment?

The Kelderluik judgment is a classic judgment of the Supreme Court that established when someone is liable for creating or allowing a dangerous situation to persist. The case concerned an open cellar hatch in a café, as a result of which a visitor suffered serious injury.

The essence of the judgment is that someone can be held liable when they fail to sufficiently take into account the possibility that others may be inattentive or careless.

Why is the Kelderluik judgment so important in personal injury cases?

The Kelderluik judgment personal injury is applied in a variety of situations, such as:

• unsafe work situations;
• slippery floors in stores;
• open manholes or hatches;
• dangerous situations in public spaces;
• Inadequate warnings;
• Unsafe sports or play situations.

Especially in these kinds of situations, insurers often try to place the responsibility on the victim.

The four Kelderluik criteria

According to the Kelderluik judgment, four aspects must be considered when assessing liability:

1. Chance of inattention

How great is the chance that someone will not pay proper attention or will act carelessly? In everyday life, one cannot assume perfect attentiveness.

2. Chance of an accident

How likely is it that the danger will actually materialize? The greater that chance, the heavier the duty of care.

3. Severity of the consequences

Can the danger lead to serious injury? In cases of severe injury, liability is more readily assumed.

4. Burdensomeness of safety measures

How easy was it to take safety measures? If simple measures were possible, that weighs heavily.

The Kelderluik judgment and creation of danger

In the Kelderluik judgment personal injury creation of danger is central. That means that someone creates or allows a situation to persist that poses a danger to others.

So it is not only about active conduct, but also about omissions. Precisely that point leads to much debate in practice.

Insurers and the Kelderluik judgment

In many personal injury cases we see that insurers argue:

• that the danger was “visible”;
• that the victim should have paid attention;
• that there is contributory negligence;
• that the accident is unfortunate but not blameworthy.

These arguments often overlook the core of the Kelderluik judgment: it is precisely inattention that must be taken into account.

Contributory negligence in the Kelderluik judgment

Contributory negligence can play a role, but by no means always leads to rejection of liability. The duty of care of the person who creates the danger continues to carry significant weight.

In many cases this leads to an apportionment of liability, with the largest share borne by the liable party.

Kelderluik judgment in workplace accidents

In workplace accidents, the Kelderluik judgment is regularly applied. Employers have a far-reaching duty of care to protect employees against dangerous situations.

Even when an employee makes a mistake, liability may still exist.

Kelderluik judgment and medical causation

In Kelderluik cases there is often debate about the causal link between the dangerous situation and the injury. Insurers then dispute that the complaints actually arose from the accident.

This is exactly where our litigation experience comes to the fore. You can read more about this on our page medical causation in personal injury.

Where other lawyers give up

Applying the Kelderluik judgment personal injury requires legal depth. It requires evidence, analysis, and sometimes litigation.

We see that cases are closed as soon as insurers put up a strong defense. That is not our approach.

Out of court if possible

We first try to resolve disputes out of court. A well-substantiated notice of liability, based on the Kelderluik ruling, often still leads to acknowledgment of liability.

Litigate when necessary

If an insurer continues to refuse, we litigate. In doing so, we employ, among other things:

• partial dispute proceedings on liability;
• preliminary expert reports;
• proceedings on the merits;
• witness examinations.

It is precisely this willingness to keep litigating that makes the difference.

Kelderluik judgment and allegations of fraud

In some cases insurers combine a hazard-creation defense with allegations of fraud. Many firms bow out there as well.

We have extensive experience litigating against insurers in insurance law, especially when clients are wrongly accused of fraud. You can read more about this on our page fraud investigation in personal injury cases.

Evidence in Kelderluik cases

In the Kelderluik judgment, evidence plays a major role. Think of:

• photos and videos of the situation;
• witness statements;
• inspection reports;
• expert assessment;
• medical documentation.

We actively assist clients in gathering and using this evidence.

In assessing the creation of danger, civil-law literature and insurance practice are often consulted, including publications and guidelines of the Dutch Association of Insurers and expert organizations such as the NIVRE.

Does litigating cost me money?

In personal injury cases the costs of legal assistance and proceedings are in most cases recovered from the liable party or their insurer. This often also applies to partial disputes and expert proceedings.

Why choose Arslan Advocaten?

We combine in-depth knowledge of personal injury law with experience in insurance law. That combination is unique.

Where other lawyers and legal professionals give up when it comes to the Kelderluik ruling, we keep going. Out of court if possible. Through the courts if necessary.

Are you unsure whether the Kelderluik ruling applies to your situation? Feel free to contact us for a substantive assessment of your case.