Leiden Law Blog

Imagine no insurance

Posted on by Alex Geert Castermans in Private Law , 2
Imagine no insurance

These are trying times for lovers of law and horses. A 64-year-old lady was injured by a runaway  horse called Imagine. She turned to the owner of the horse for compensation. At first sight the owner’s liability is a piece of cake, for according to Dutch law the ‘possessor’ of an animal is liable for the damage caused by the animal, even though the possessor was not to blame (article 6:179 Civil Code).

The defendant was her husband and Imagine was owned by the couple jointly. None of these facts seemed to exclude liability, for in 2010 the Supreme Court of the Netherlands had ruled that the co-owner of a house could be held liable in the event the other owner suffered damages caused by the fact that the house did not meet certain safety  standards. Yet, the husband and his insurance company argued that this rule could not be applied in the case of co-owners of an animal.

On January 29, 2016 the Supreme Court  ruled in favour of the defendants. First of all because animals are inherently dangerous and both co-owners should be aware of that. Furthermore the consequences of co-owner liability for animals appear to be more complicated compared to liability for houses. According to the Supreme Court, the number of accidents is higher, whilst claims are more difficult to assess. How come? In the Netherlands, ownership of real estate is registered extensively. Ownership of animals is not registered at all. According to the insurance company, insurers may face difficulties when dealing with claims based on co-ownership. Apparently, the Supreme Court was impressed by this argument.

My colleagues and I discussed this argument during our weekly case law lunch. We could not believe our eyes. Certainly, it will be easy for a wife and her husband to claim that they are co-owners of an animal. It will be hard for insurance companies to prove the contrary. But will the acknowledgement of this by barring liability of the co-owner really benefit insurance companies? This is doubtful. Knowing that co-ownership will not pay in terms of compensation, members of a household may present various arguments to attribute ownership to only one of the members of a household and these may easily hold true. In one case it may be the wife who paid the bills. In another it may be the husband who takes care of the animal or the daughter who got the pet for her birthday. Subsequently, one wonders how to deal with the absence of co-ownership in cases like Imagine’s. Apparently neither the husband’s insurance company nor the Supreme Court has reflected on this. The next victim of Imagine will be advised to turn to the insurance company of the person who may be regarded as the owner, carefully avoiding any reference to possible co-ownership.

This is not a matter of witty lawyering. Imagine no insurance. Victims may be put to great expense, especially those who are involved in a small or medium-sized enterprise. The Supreme Court suggests that animal owners should ensure they have proper insurance. What about their partners and next of kin? It is up to insurance companies to advise them properly on the possibilities of insurance, well in advance, given the fact that domestic animals are inherently dangerous and insurance companies – too – should be aware of that.

2 Comments

Alex Geert Castermans
Posted by Alex Geert Castermans on February 12, 2016 at 22:53

Thank you for the comment, Anna. The paragraphs you refer to may be inspired by the number of accidents, caused by houses compared to the number of accidents caused by animals. Furthermore, assumptions with regard to the level of awareness of certain risks and of the necessity of an insurance seem to play a role. Were they provided by the insurance company involved? Advocate-general Spier may have been right advising the Supreme Court that this case was not fit for a preliminary judgement.

Anna van Duin
Posted by Anna van Duin on February 10, 2016 at 11:53

Interesting blog! In Amsterdam we also had a discussion about the distinction made by the Supreme Court (in paras. 3.6.1-3.6.2) between “risk allocation” as the justification for 6:174-liability and the animal’s “own energy” in the context of Article 6:179. Why would this entail that the responsibility of the co-owner of an animal plays a stronger role? Isn’t the co-owner of a house equally responsible for ‘hidden’ deficiencies?

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