On 19 May 2021, the Gelderland District Court handed down an interesting ruling. The case underlying it was as follows.
On the night of 24-25 December 2017, the plaintiff (hereinafter: the woman) and the defendant (hereinafter: the man) were with a group of friends in café @Dronten in Dronten. When they were outside again at the end of the evening, the woman was unexpectedly lifted from behind by the man, after which he became unbalanced and the woman fell to the ground. As a result of the fall, the woman suffered a broken collarbone. Some time later, the woman formally held the man liable for her damages. However, the man did not admit liability. Eventually, the discussion on this matter led to proceedings.
In these proceedings, in brief, the woman claimed that it should be established that the man had acted unlawfully towards her and was therefore liable for all damages that had arisen and might arise from the incident in question. The woman also claimed €2,425.46 in damages. This amount consisted of €1,200.00 in damages (immaterial damage) and €1,225.46 in travel expenses, medical expenses and costs of informal care (material damage).
The man acknowledged that he had lifted the woman from behind and that she had subsequently fallen. However, he disputed that he had thereby acted unlawfully towards the woman. He did not think he had acted in a dangerous way and, according to him, the lifting was not unexpected for the woman. He also found that the degree of probability of a fall with injury was small, so he did not have to take this into account.
According to the defendant, the fact that he had become unbalanced was partly due to the movements the woman made after he lifted her. He thus argued in conclusion that there was OSVO, or an unfortunate confluence of circumstances. In short, this means that there was no liability and therefore no cause for compensation.
Court’s assessment
In essence, therefore, this case is about whether the husband acted unlawfully towards the woman by lifting her from behind, after which she fell and sustained injuries.
Referring to the Supreme Court’s two standard judgments on unfortunate coincidences,[1] the court found that the husband had unexpectedly lifted the woman from behind on his own initiative and thus without the woman’s consent. After he became unbalanced, the woman had fallen. The court found that by lifting the woman, the man had taken the risk that the woman would fall and that the man had thereby created a dangerous situation.
Here, according to the court, it was also important that both the man and the woman had consumed alcohol on the night in question. According to the court, it is common knowledge that consumption reduces the ability to react and can disturb balance. Following on from this, the court stated that the man may have become unbalanced as a result and that the woman was also unable to catch herself properly during the fall because of this.
Considering the above, the court held that the likelihood that the man’s action would cause harm to the woman was so high that by standards of care he should have chosen not to lift the claimant. The fact that the husband did not intend to harm the woman did not detract from this. An unfortunate confluence of circumstances as alleged by the husband was therefore not present, according to the court.
The man’s reliance on estoppel also failed. Thus, the court ruled that the husband had acted unlawfully towards the wife and awarded part of the amount claimed by the wife as compensation, i.e. €1,556.54, while ordering the husband to pay the costs of the proceedings.
[1] HR 20 June 1986, NJ 1986, 780 (Playful push) and HR 12 May 2000, NJ 2001, 300 (Moving sisters).
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Read back the full ruling at: http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBGEL:2021:3291.
