Not being insured is your own fault?

In liability lawsuits, the defense is frequently raised that the person who believes he or she has a claim is also himself or herself to blame for the damage that has occurred. For example, because he or she did (too) little to prevent the damage from occurring. If such an argument (the "own fault defense") succeeds, the obligation to pay compensation lapses or the amount of damages to be compensated can be considerably lower.

But does the obligation to prevent damage as much as possible also imply that a person is obliged to insure against certain damage?

The Administrative Law Division had to consider that question in a ruling on December 13, 2017 (ECLI:NL:RVS:2017:3445). This ruling is a great example of how administrative law compensation law connects to civil compensation law.

What's going on?

In 2014, CBR invalidated the appellant's driver's license in these proceedings and required him to participate in an alcohol interlock program. The appellant's objection to this decision was declared unfounded. During the court proceedings, however, CBR withdrew these decisions. This established the illegality of these decisions.

The appellant then requested that the CBR be ordered to pay compensation for the damage suffered. In particular, this case concerns the (additional) costs the appellant had to incur to have a new alcohol lock installed because his car had been stolen.

Serves you right

The court ruled that the costs of installing a new alcolock did not have to be reimbursed by CBR. This was because the appellant could be expected to independently take all damage control measures that could reasonably be expected of him.

This includes, in the opinion of the court, taking out insurance that would have covered theft. The appellant's cancellation of such insurance, which he did initially have for the alcolock, resulted in the damage caused by the theft of the alcolock not being covered by insurance. In the court's opinion, that circumstance should remain at the appellant's expense and risk.

Insure to prevent harm is not a duty

The Division puts a clear line through this judgment of the court. After all, the question of own fault requires that the damage is partly a consequence of a circumstance attributable to an injured party. This is not the case here. Indeed, the alleged injury cannot be considered a consequence of the fact that the appellant was not insured. In fact, those damages are the result of the theft.

Interesting in this ruling is the Division's opinion that, in general, an injured party is also not obligated against a liable party to insure or remain insured against potential damages.

Since there is no basis for reducing CBR's obligation to pay damages, the Division rules that CBR should still reimburse the appellant for the costs of reinstalling the alcolock.

The lesson learned from this ruling is that an "own fault defense" with the argument that someone should have just insured against the resulting damage in legal proceedings is not valid, according to the Division.