Liability in the event of a collision | Legal Advice Centre

Questioner

My question is, who is liable for this collision. A truck drives on a road within a built-up area against an open awning of a trailer. This trailer was stuck behind a parked car. The flap was partly hanging over the road at eye level. The truck driver did not see the flap in time because of oncoming traffic. The view was clear for the driver, but a dangerous situation was created. Is the truck now at fault or are there possibilities for recovery. The insurer of the parked trailer appeals to article 185 wvw. Is that correct? There are no witnesses unfortunately.

Lawyer

That is possible, because in my opinion a dangerous situation has indeed been created by not also taking into account that there is truck traffic on the spot or other traffic that could be endangered here. The driver, or his employer, must appeal to force majeure or, if that fails, a reduction of the obligation to compensate for the damage due to the owner of the stationary vehicle's own fault. An appeal to force majeure must be motivated in such a way that it is clear that the driver should not have taken the given situation into account in any way.

Questioner

Thank you for your response! I would like your explanation regarding your statement regarding the reduction of the obligation....I think that proving force majeure within the meaning of art. 185 WvW will not succeed, given the fact that the driver of the truck has no witnesses. Are you referring in your answer to the applicable - BW. Article 6:101 1. If the damage is partly a consequence of a circumstance that can be attributed to the injured party, the obligation to pay compensation shall be reduced by dividing the damage between the injured party and the person liable for compensation in proportion to the extent to which the circumstances attributable to each have contributed to the damage, provided that a different division takes place or the obligation to pay compensation lapses entirely or remains in place if fairness so requires due to the differing seriousness of the errors made or other circumstances of the case. Is it still possible to impose on the trailer's property that the way the trailer with the awning out is parked poses a danger to other traffic? So that the injured driver can qualify for 50% compensation for his damage?? I look forward to receiving your addition.

Lawyer

Yes, that is possible, it is about the establishment of liability, where two mistakes come together. What the owner has done is also a violation of the Road Traffic Act, at least I would try to formulate it that way, following the law and/or case law regarding dangerous behavior on/next to the road.