‘Using the government as a safety net for unforeseen damage is a thing of the past,’ says the Groningen legal expert Professor Fokko Oldenhuis. He thinks that the Supreme Court ruling last month on the dike failure in Wilnis will also have consequences for road users who turn to the authorities for compensation for frost damage, for example. ‘Recouping your losses from the government is no longer a matter of course because the financial framework, i.e. government decisions, can affect liability.’
So who is liable if a dike collapses? Can members of the public recover their flood damage from the government? This was the key question in the legal battle which ensued following the dike breach in Wilnis. On the night of 25 August 2003 the dike shifted by some 7 metres along a length of 60 metres. As a result 230,000 m3 of water flooded into a residential area in a single night. The material damage amounted to about EUR 10 million.
After the water had subsided and been brought under control again, the finger pointing began. The Amstel, Gooi en Vecht Dike Board, which is responsible for the water defences, was held liable by the people affected. Last December the case came to a provisional end when the Supreme Court overturned a judgment by the Amsterdam court of appeal in which the Dike Board was deemed to be the body responsible. But the case has not yet been finally decided: The Hague court of appeal will now consider the matter of who is responsible on the basis of the criteria formulated by the Supreme Court.
But Dutch law also has a second basis for damage compensation: so-called strict liability. The liability takes effect if it can be established that something has a defect, entirely separate from the question of whether or not the owner is to blame. Is a dike which lets through water a defective dike? Anyone who is not a lawyer will be inclined to answer ‘yes’ to this question right away. But it’s not as simple as that.
Something is defective under the law if it fails to meet the requirements which might be expected of it in the given circumstances. It is clear that absolute and unconditional liability was never what was intended by the legislator. This was recognized by the Amsterdam District Court where the case was first heard. The District Court pointed out that in 2002, i.e. just before the disaster, the dike had proven itself capable of withstanding high water and extreme precipitation. The District Court thus concluded that at the time of the disaster the dike met the standards which could be expected of it in the given circumstances.
On appeal the Amsterdam Court of appeal took a different view. The court directly assumed that a dike which lets water through should be viewed as a defective dike. The court specifically found that neither the science and technology available at the time nor the financial framework within which a government body must operate – stands in the way of accepting liability. This cleared the way for almost total strict liability. The case was on a knife edge.
The Dike Board appealed to the Supreme Court, stating that when answering the question of whether or not there is a defect, the technology available at the time and the financial framework could indeed play a role.
The Supreme Court agreed with this more limited interpretation of strict liability. The Supreme Court specifically found that the legislator had intended to avoid too broad an interpretation of liability and that standards of conduct on the part of the owner should indeed play a significant role.
When applied to the Wilnis case: the fact that a dike breaches generally means that it does not meet the standards which may be expected of a dike in the given circumstances. The owner of the dike may, however, demonstrate that, for example, given the science and technology available at the time, the policy freedom that the government has in undertaking its public task and the financial resources which are available to it for that purpose, it is not necessary to take into account a long-lasting drought as a failure mechanism. The Supreme Court also commented that these specific factors could point in various directions, but given the safety function of a dike, proof to the contrary would have to be subject to ‘strict standards’.
In this light the outcome of the Wilnis case – over which The Hague court of appeal must still issue a ruling – is far from a foregone conclusion. What is clear, however, is that the strict liability which generally rests upon the owner of dikes and roads cannot be assumed to be automatic. Defective is a prescriptive term which also needs to take standards, including standards of conduct, into account. Never before has the Supreme Court expressed this so plainly under the new property law.
In arriving at its ruling the Supreme Court further specifically took the special position of the government into account. In terms of the government’s liability, the Supreme Court took the view that weight also has to be given to the ‘policy freedom which is due to it (government) and the financial resources available for that purpose’. In Professor Oldenhuis’ view this consideration should be seen as a line rightly drawn in the sand of our legalized society.
The ruling has far-reaching consequences for claims by road users in the event of sudden frost damage. If the government can show that it has done everything it can to deal with frost damage with the personnel it had available, a road user will not be able to pass on damage due to sudden frost to the government under the guise of strict liability.
It would therefore appear that for many road users the government’s role as a safety net for unforeseen damage is now a thing of the past. This ruling means that the road user’s own primary responsibility now weighs more heavily than it has in the past on the basis of case law. This trend is in keeping with arm’s length government. Professor Oldenhuis agrees with the decisions made by the Supreme Court.
Fokko T. Oldenhuis (Delfzijl, 1950) has been professor by special appointment of Religion and Law at the Faculty of Law and the Faculty of Theology and Religious Studies since 2005. He is associated with the Private Law and Notary Law department of the University of Groningen. Since 1993 he has also been a deputy justice at the Arnhem Court of appeal. In addition to publications on religion and law, Professor Oldenhuis has written many works on strict liability and tenancy law.
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