Liability and Compensation | Free Legal Advice

Questioner

Situation sketch: A friend of my son has the phone (of my son) in his hands. He shows something to another friend, who is shocked and knocks the phone out of his hands. Damage: over €200,- We have officially held the 'slagder' liable. His insurance company disagrees and holds the other friend liable. As a gesture of goodwill, the company of the 'beater' has reimbursed half of the damage. The company of the friend who showed something says it is not liable. Conclusion: we are still stuck with over €100 in damages that no one wants to pay. I will email both insurance companies again and make it clear to them that we are not liable in any case. What steps can I take if both parties do not continue to hold themselves liable?? And therefore do not compensate the outstanding damages??

Lawyer

Day, the person who caused the accident is in principle liable, regardless of what his insurer says. You could therefore consider holding this boy or his parents liable for the remaining damage.

Lawyer

To give a more appropriate answer to your question I would like to read the insurer's response. The insurer refers to the boy who was holding the phone, but why? The starting point is in any case that you must demonstrate that the 'beater' has acted unlawfully. That is to say: that he has done something that infringes on the rights of another, which has caused damage and that there is a connection between his actions and the damage. Since the insurer is in the game, I would definitely continue the discussion with the insurer. Success.

Questioner

Dear Jorg van den Enden, We have received a response from the insurer of the 'slagger'. I quote their reasoning: 'given the circumstances, we consider our insured's shock reaction entirely appropriate. Payment is therefore entirely voluntary.' End of quote. The response of the insurance company of the boy who showed something on the phone was that showing something on a phone was not an unlawful act. With this they indicate that they are not guilty. In our opinion, one of the two insurance companies still has to pay the remaining debt. Who can judge the liability? We do not want to get bogged down in a yes/no game. Can you tell me what the next step is/could be for us?

Lawyer

Day, The perpetrator or his/her parents should be held liable, not their insurer, and their opinion is irrelevant.

Lawyer

First a short preliminary remark. What the colleague writes is certainly correct in theory. The perpetrator or their parents are liable. In practice, however, we see that in the Netherlands almost everyone has an AVP (Private Liability Insurance). When someone is held liable, they forward the claim to the insurer and you often cannot avoid this insurer. After all, you are not going to take legal action (read procedure) against the perpetrator or the parents in the event of minor damage (here € 100). Then with regard to the additional data. What the insurer writes here seems to be an appeal to force majeure. That does not seem right to me. There is certainly a wrongful act. There is an act (hitting) that infringes on a right (your son's property rights), which is attributable to the person who hit (he should have paid more attention), which caused damage (broken telephone) and there is a connection between the act and the damage (without the hitting the telephone would not have broken). It is going too far to say that the friend who showed the phone to the beater should have anticipated a shock reaction. I do not see showing the phone to the beater as unlawful conduct. So back to the beater. Being startled in itself is not unlawful. The subsequent hitting that breaks your son's phone is. Not the startling, but the hitting movement is the reproach. Being startled can take many forms, but you certainly don't have to hit. And if it were an impulsive reaction, then that would be the responsibility of the beater. I would submit that to the insurer. And I would indicate that the insurer should not pay out of goodwill, but because the perpetrator is liable on the basis of article 6:162 BW. And if the boy who showed the telephone is also liable, which I do not see, then the perpetrator is still jointly and severally liable and the insurer must pay the entire damage. Finally, I would like to conclude with the remark to the insurer that it is very sour that your son had no influence on the situation, but is now stuck with part of the damage. That is unfair. And if the insurer still believes that the beater did not act unlawfully, then I would request that the entire damage be compensated without acknowledging liability. Ultimately, it is not a large amount for the insurer, but it is for your son. Can you do something with this?

Lawyer

Why don't you send a registered letter with a notice of liability? I may be able to help you with that.