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Prof. Fokko Oldenhuis: ‘Aeroplane crash and crisis cause for debate about the limits of liability’.

17 March 2009

The Turkish Airlines Boeing had barely hit the ground before American personal injury experts descended on Amsterdam to file claims on behalf of the victims. According to University of Groningen legal scholar Prof. Fokko Oldenhuis, this is a prime example of the ‘commercialization of grief’ that is also on the rise in the Netherlands. ‘We must ask ourselves if we want to abolish all risks. When does the liability system become uncontrollable and prohibitively expensive? Perhaps the current economic crisis will provide a good opportunity for a social debate about this issue’.

In their eagerness to generate business, says Oldenhuis, injury claims firms sometimes tend to oversimplify matters. ‘Is Turkish Airlines to blame for the crash or is Boeing liable for the malfunctioning altimeter? What is the applicable law: American, Dutch or Turkish? A host of questions is yet to be answered but in the meantime some of these firms are already urging victims to take action or risk forfeiting their rights. That is totally unjustified. I would advise victims to stay calm, think about what they want and only employ a reputable firm’.

Legalized society

In addition to answering the question of who is responsible for the crash, Oldenhuis believes that a debate should be held about the limits of liability. ‘There are even victims who want to sue the fire and rescue services or the airline because they had to wait too long for help to arrive or because they were left to shiver in a cold hanger. Such news is disheartening. Do we really want a society that is legalized to such an extent? When will the system blow up in our faces’?

In addition to answering the question of who is responsible for the crash, Oldenhuis believes that a debate should be held about the limits of liability. ‘There are even victims who want to sue the fire and rescue services or the airline because they had to wait too long for help to arrive or because they were left to shiver in a cold hanger. Such news is disheartening. Do we really want a society that is legalized to such an extent? When will the system blow up in our faces’?

Liability at all costs

Oldenhuis gives the example of a lawsuit originating from the collapse of a dike near Wilnis. Householders launched a claim for damages against the water board for failing to properly maintain the dike. This claim was rejected by the Amsterdam court. Oldenhuis: ‘The dike met the appropriate standards. Investigations showed that the cause of the collapse had been peat formation, which led to parts of the dike crumbling. No one, including the water board, knew that this phenomenon poses risks to dikes. Many people could not understand the court’s decision. No matter what the cause, they believe, the water board was liable for the collapse. However, liability cannot or need not be attributed in all cases in the opinion of the court. Therefore, the liability system has its limits. I think that was a good decision’.

Oldenhuis gives the example of a lawsuit originating from the collapse of a dike near Wilnis. Householders launched a claim for damages against the water board for failing to properly maintain the dike. This claim was rejected by the Amsterdam court. Oldenhuis: ‘The dike met the appropriate standards. Investigations showed that the cause of the collapse had been peat formation, which led to parts of the dike crumbling. No one, including the water board, knew that this phenomenon poses risks to dikes. Many people could not understand the court’s decision. No matter what the cause, they believe, the water board was liable for the collapse. However, liability cannot or need not be attributed in all cases in the opinion of the court. Therefore, the liability system has its limits. I think that was a good decision’.

Paralysing system

A system where accountability and risk avoidance is paramount may lead to paralysis, as evidenced by what is happening in health care today. Oldenhuis: ‘If surgeons, for example, are to give detailed accounts of what they are doing all day to protect themselves from liability claims, they will no longer have the time to operate on patients. Not only will such a system be counterproductive, it will also be prohibitively expensive. Health insurers will be required to raise their premiums and the state will also pass liability costs on to the taxpayer. In all cases, it will ultimately be the man in the street who pays the bill.

A system where accountability and risk avoidance is paramount may lead to paralysis, as evidenced by what is happening in health care today. Oldenhuis: ‘If surgeons, for example, are to give detailed accounts of what they are doing all day to protect themselves from liability claims, they will no longer have the time to operate on patients. Not only will such a system be counterproductive, it will also be prohibitively expensive. Health insurers will be required to raise their premiums and the state will also pass liability costs on to the taxpayer. In all cases, it will ultimately be the man in the street who pays the bill.

Where to begin?

It will not be easy to reduce liability claims, according to Oldenhuis. ‘Where to begin? It’s an international world, as the case of the Turkish Airlines crash illustrates. Nevertheless, a fundamental debate about limits to the system will be extremely useful. Judges tell me that they would welcome it, and insurers and the government would also benefit from it. And ultimately ordinary citizens too. Perhaps the current economic crisis will provide a good opportunity for a debate about this issue’.

It will not be easy to reduce liability claims, according to Oldenhuis. ‘Where to begin? It’s an international world, as the case of the Turkish Airlines crash illustrates. Nevertheless, a fundamental debate about limits to the system will be extremely useful. Judges tell me that they would welcome it, and insurers and the government would also benefit from it. And ultimately ordinary citizens too. Perhaps the current economic crisis will provide a good opportunity for a debate about this issue’.

Curriculum vitae

Fokko T. Oldenhuis (Delfzijl, 1950) studied Dutch Law at the University of Groningen. After graduating he became a lecturer in the Civil Law department of the University. Since 2005 he has been professor of Law, Religion and Society. In addition, he has been deputy justice for the Court of Appeal in Arnhem since 1993. Alongside publications about religion and the law, Oldenhuis has written many works on liability law and tenancy law.

Last modified:15 September 2017 3.10 p.m.
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