A pedestrian who is struck by a car, motorcycle or other motor vehicle is in a legally strongly protected position. Under Article 185 of the Road Traffic Act the vulnerability of unmotorized road users is recognized. For pedestrians aged fourteen and over, in cases of shared fault this usually means compensation of at least 50% of personal injury, unless there is force majeure on the part of the motorist. For children younger than fourteen the 100% rule generally applies.
What is a pedestrian collision?
A pedestrian collision is a traffic accident in which an unmotorized pedestrian is involved in a collision with a motor vehicle. The law establishes 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 Road Traffic Act
The central foundation for the protection of pedestrians lies in Article 185 paragraph 1 of the Road Traffic Act 1994. The owner or holder can only escape liability if force majeure is made plausible; this is strictly tested in case law. For pedestrians aged fourteen and over the compensation is partly determined by the 50% rule. If equity requires, the percentage may be higher pursuant to Article 6:101 paragraph 1 of the Civil Code. A victim may bring a direct claim against the WAM insurer.
What to do after a collision as a pedestrian?
Seek medical assistance immediately and have complaints and limitations recorded. Note the details of the other party and witnesses and document the situation with photographs. Put the responsible party or insurer on notice of liability in writing. From the outset keep an overview of all costs and consequences of the accident. Monitor limitation periods and, if necessary, request advances in a timely manner.
Evidence and time limits
Record the location, weather conditions and traffic situation. Try to secure camera footage from nearby buildings or doorbells quickly. For personal injury claims a limitation period of five years generally applies after knowledge of the damage and the liable party, as provided in Article 3:310 paragraph 1 of the Civil Code. For a direct claim against the WAM insurer a separate term applies under Article 10 WAM. Have the deadline assessed in good time.
What damages can you claim?
Compensation can include medical costs, the deductible, physiotherapy, medical aids and transport. Also loss of income, loss of earning capacity, loss of pension entitlements, household help, childcare, informal care, compensation for pain and suffering (non-pecuniary damages) and material damage to, for example, clothing, glasses or a phone may be relevant. Which items are compensated depends on the injury, the facts and the supporting evidence.
Determination of compensation
Compensation is determined by comparing the current situation with the hypothetical situation in which the accident had not occurred. Reasonable future expectations and favourable and unfavourable prospects are taken into account. As long as the medical end state has not been reached, advances for ongoing costs may be appropriate.
The approach of Arslan & Arslan Attorneys
Arslan & Arslan Attorneys first establish a solid evidentiary basis in personal injury cases. When the cause is disputed, for example in collisions in the dark or near crossings, photographs, witness statements and medical reports are carefully assessed. The assistance can range from issuing a notice of liability to settlement, with attention to a realistic prognosis before a final settlement is reached.
Common mistakes in personal injury claims
Do not wait too long to have injuries medically recorded: a late report can call into question the causal link between the accident and the complaints. Collect as much information as possible at the scene. Do not agree to a final settlement payment when the medical prognosis is still uncertain.
Costs of legal assistance
When liability is acknowledged, reasonable costs for legal assistance may be eligible for reimbursement under Article 6:96 of the Civil Code. If liability is disputed or there is contributory fault, a legal aid grant (toevoeging) or other fee arrangements may be relevant.
Frequently asked questions
Am I liable if I crossed outside the pedestrian crossing? This can lead to contributory fault, but you do not automatically lose your right to compensation. The protection of Article 185 of the Road Traffic Act remains relevant in a collision with a motor vehicle.
What is force majeure for the motorist? The driver must demonstrate that no legal blame can be attached to him and that he took optimal precautions in anticipation of possible errors by other road users. In practice this rarely succeeds.
Can a pedestrian receive compensation for pain and suffering? Yes. Compensation for pain and suffering covers non-pecuniary damage such as pain, fear and loss of enjoyment of life. The amount depends on the severity of the injury, the duration of recovery and comparable judicial decisions.
What if the driver fled? In the case of a hit-and-run or an uninsured perpetrator, under certain conditions a claim against the Motor Vehicle Guarantee Fund (Waarborgfonds Motorverkeer) may be possible. Report the incident to the police immediately and gather 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 & Arslan Attorneys for an assessment tailored to your file.
Sources and further reading: Article 185 Road Traffic Act 1994, Article 3:310 and Articles 6:101 and 6:96 of the Civil Code, Article 10 WAM and Supreme Court 31 May 1991, ECLI:NL:HR:1991:ZC0253.
