A pedestrian who is struck by a car, motorcycle or other motor vehicle occupies a strongly protected legal position. Under Article 185 of the Wegenverkeerswet 1994 (WVW; Dutch Road Traffic Act), the vulnerability of non-motorized road users is recognized. For pedestrians aged fourteen and over, this generally means that in cases of contributory fault at least 50% of the personal-injury damages is compensated, unless there is overmacht on the part of the motorist (a narrowly construed no-fault/force-majeure defense). For children under fourteen, the 100% rule applies in principle.
What is a pedestrian collision?
A pedestrian collision is a traffic accident in which a non-motorized pedestrian is involved in a collision with a motor vehicle. The law provides risk-based (strict) liability for the owner or holder of the motor vehicle, because a pedestrian is physically much more vulnerable than the occupants of a vehicle.
Legal framework: Article 185 WVW
The central foundation for the protection of pedestrians lies in Article 185(1) of the Wegenverkeerswet 1994. The owner or holder can escape liability only if overmacht is made plausible; case law applies a strict test. For pedestrians aged fourteen and older, compensation is also determined by the 50% rule. If fairness so requires, the percentage may be higher under Article 6:101(1) BW (Burgerlijk Wetboek; Dutch Civil Code). A victim can bring a direct action against the WAM insurer (insurer under the Wet aansprakelijkheidsverzekering motorrijtuigen, the Dutch Motor Liability Insurance Act).
What to do after a collision as a pedestrian?
Seek medical help immediately and have your complaints and limitations documented. Note the details of the other party and any witnesses, and record the situation with photos. Send a written notice of liability to the responsible party or insurer. From the outset, keep a record of all costs and consequences of the accident. Monitor limitation periods and, if necessary, request advances in time.
Evidence and time limits
Record the location, weather conditions and traffic situation. Try to secure camera footage from nearby premises or doorbells promptly. As a rule, claims for personal injury are subject to a five-year limitation period after becoming aware of the damage and the liable person, as provided by Article 3:310(1) BW. A direct claim against the WAM insurer is subject to its own period under Article 10 WAM. Have the applicable period assessed in time.
Which damages can you claim?
Compensation may include healthcare costs, deductible, physiotherapy, medical aids and transport. Loss of income, loss of earning capacity, pension loss, domestic help, childcare, informal care, compensation for pain and suffering, and property damage to, for example, clothing, glasses or phone may also be relevant. Which heads of damage are compensated depends on the injuries, the facts and the substantiation.
Assessment of the compensation
Compensation is determined by comparing the current situation with the hypothetical situation in which the accident would not have occurred. Reasonable future expectations and both favorable and unfavorable contingencies are taken into account. Until the medical end state has been reached, advances for ongoing costs may be appropriate.
The approach of Arslan Advocaten
Arslan Advocaten first establishes a solid evidentiary foundation in personal injury cases. When the circumstances are disputed, for example in collisions in the dark or near crossings, photos, witness statements and medical reports are carefully assessed. The guidance can range from notice of liability to final settlement, with attention to a realistic prognosis before a closing agreement is reached.
Common mistakes in personal injury claims
Do not wait too long to have your injuries documented: a late report can cast doubt on the causal link between the accident and the complaints. Collect as much information as possible at the scene. Do not agree to a final payment if the medical prognosis is still uncertain.
Costs of legal assistance
When liability is acknowledged, reasonable costs of legal assistance may be reimbursed under Article 6:96 BW. If liability is disputed or there is contributory fault, a toevoeging (government-funded legal aid) or other fee arrangements may be relevant.
Frequently asked questions
Am I liable if I crossed outside the crosswalk? This can lead to contributory fault, but you do not automatically lose your right to compensation. The protection of Article 185 WVW remains relevant in a collision with a motor vehicle.
What is overmacht for the motorist? The driver must demonstrate that no legal blame can be attached to him and that he optimally anticipated possible errors by other road users. In practice this occurs only rarely.
Can a pedestrian obtain compensation for pain and suffering? Yes. Non-pecuniary damages (smartengeld) compensate immaterial harm, such as pain, anxiety and loss of enjoyment of life. The amount depends on the seriousness of the injury, the recovery period and comparable court decisions.
What if the driver drove off? In the case of a hit-and-run or an uninsured offender, a claim with the Waarborgfonds Motorverkeer (Dutch Motor Traffic Guarantee Fund) may be possible under conditions. Report to the police immediately and collect evidence of the circumstances.
Can I receive an advance? Once liability has been acknowledged, you can request an advance for costs already incurred and substantiated damage.
No-obligation assessment
Unsure about your rights after a collision or about relevant heads of damage? Contact Arslan Advocaten for an assessment tailored to your file.
Sources and further reading: Article 185 Wegenverkeerswet 1994, Articles 3:310 and 6:101 and 6:96 BW, Article 10 WAM, and Supreme Court (Hoge Raad) 31 May 1991, ECLI:NL:HR:1991:ZC0253.
