The case
In September 2019, a 35-year-old motorist ran a red light at Amsterdam’s Leidseplein on a Tuesday night. He only saw the crossing cyclist when he landed on his bonnet. The cyclist suffered bleeding in the brain, a skull fracture and fractures in the pelvis. As a result, he was still unable to function normally two years later. The driver was sentenced to 160 hours of community service and a one-year driving ban.
Insurance company Allianz then tried to recover 86,000 euros from the motorist of the compensation it had paid to the victim under the third party liability insurance. Because the legal liability insurance policy states, just like the law, that damage resulting from recklessness will not be compensated. But what is “recklessness”?
In the autumn of 2024, the court decided that the motorist had driven “very carelessly, inattentive and negligently”, but that is not the same as “recklessly”. He was not under the influence of alcohol or drugs, was not on the phone, and has “consistently stated that he (simply) did not see the red traffic light.” In addition, the court said that even higher requirements were imposed on proof of “recklessness” in 2019 than later.
Allianz appealed. The insurer emphasized that the motorist had not seen the red light for at least five seconds, that he was driving “on average more than fifteen kilometers too fast” and even accelerated just before the intersection, that he also passed a car that was stationary in the left lane, and that he was familiar with the busy area because he regularly visited the casino there, where he earned money playing poker.
The verdict: rejected
The court in Amsterdam does not agree. Recklessness requires that the motorist was “aware, at least to some extent, of his actions.” And that was not the case here. The man remembered seeing a sign saying “Booking.com” and thinking “Is that here too?” and was therefore apparently distracted. He stated that he was “temporarily mentally absent”, and the court finds this plausible, as he had accelerated as he approached the intersection. The court therefore rejects all claims by Allianz.
The commentary
Dorien Thiescheffer (Lauxtermann lawyers) acted for Allianz. The insurer had tried a few years earlier to get back part of the money with a compromise, but the motorist did not accept this. “In these types of cases it can easily amount to several hundred thousand euros, but the chance that you will get it back from a private person is not very high.”
The claimed 86,000 euros also does not cover the entire amount paid out.
In case law, recklessness also includes ‘unconscious recklessness’. The court also mentions this meaning. Why was this not the case in this case, according to the court? Thiescheffer finds that strange. “I have not seen that before. Apparently the court assumes that ‘unconscious’ only refers to the harmful consequences, and that you are then aware of the action itself. According to the court, the latter was not plausible here, conclusion: no recklessness.”
Ingeborg Haazen, lecturer in civil law at Radboud University in Nijmegen, published on recklessness in traffic liability law. She cites a judgment from 2007, in which the Supreme Court appears to keep open the possibility of ‘unconscious’ recklessness. “But you have to prove that, just like conscious recklessness, with various concrete circumstances. So that it becomes clear that you did not have enough attention then and there, and that you should have had it. That is difficult to prove. And what if you are distracted by your children in the back, or by your beeping telephone?”
Apart from the lack of concrete evidence, Haazen can imagine that the court also colored the case by how the concept of recklessness is interpreted in criminal law. “This does not quickly lead to recklessness, and that actually also applies in civil law. Although you want the insurer to be able to get the money back if someone has made a lot of mistakes.”
Apparently you can be distracted sometimes, according to Haazen. “The law forgives you for that to a certain extent, it takes the human brain into account. It knows that attention wanes in daily routines. The law distributes the risks and determines who has to bear them, and that outcome does not always have to feel fair. When I have to explain to my students the difference between conscious and unconscious recklessness in the law, I sometimes ask: what is worse, someone who deliberately drives through a red light or someone who was not even paying attention and drives through a red light? We bond There is value in traffic injuries being covered by insurance. Insurers bear that risk and distribute it among the insured through premiums. And in this case, the judge did not find such circumstances that the insurer could pass it on to the perpetrator.”
Pronunciation: Amsterdam Court of Appeal, April 21, 2026; ECLI:NL:GHAMS:2026:1058
