Motorists often continue to drive with an illuminated light on the dashboard. They will look at it later because they really have to get to work or to the shop. This way of thinking can have major consequences if an accident is later caused by a problem that was indicated on the dashboard.

The court has ruled on such a situation.[1] A brief outline of the situation. The defendant went to his work to pick up some bar tables for a barbecue. As he drove back along the motorway, his steering wheel began to vibrate. Before he knew it, he was stopped in the left-hand lane. He tried to warn other road users from the crash barrier. His hazard lights were also on. Unfortunately, one driver saw the stationary vehicle too late. This driver flew over and was ejected from the car, resulting in a lifelong injury to his back. What transpired was that the left rear tyre had slowly deflated and that before this happened, a message appeared on the dashboard and a corresponding warning light came on.

This is how the accused came before the three-judge criminal division. The court addressed the question of whether the defendant was guilty of section 6 of the Road Traffic Act 1994 (WVW) or section 5 of the WVW. The differences between sections 5 and 6 of the Road Traffic Act will be briefly discussed below.

Article 5 of the WVW

This article reads: ''It is prohibited for anyone to behave in such a way as to cause a hazard on the road or to obstruct or be likely to obstruct traffic on the road.''.

Article 6 of the WVW

This article criminalizes: ''It is forbidden for anyone participating in traffic to behave in such a way that a traffic accident attributable to him occurs in which another person is killed or sustains serious physical injury or physical injury such that temporary illness occurs or that person is prevented from engaging in normal activity.''.

Article 6 of the Road Traffic Act contains a more serious offence. In order to meet the description of the offence in the Dutch Penal Code, the traffic accident must be the fault of the road user. In addition, the suspect must also be to blame for the consequences of the traffic accident (injury or death). Article 5 of the Road Traffic Act only makes a certain type of behaviour punishable. It is not necessary to prove guilt of causing a certain consequence. Article 5 of the Road Traffic Act does not include guilt in the description of the offence. In this case, guilt does not have to be proven, but is assumed to be present. In fact, it is assumed that if the description of the offence is fulfilled, there is also (some degree of) guilt. A suspect may therefore invoke a ground for exclusion of guilt (a defence which may be put forward which, if accepted, will lead to dismissal of all legal proceedings).

Judgment of the court

Tyre pressure message

The court was first to rule on the tyre pressure report. It has been established that a message appeared in the instrument panel 21 km before the accident and that two yellow warning lights came on. The message was displayed on the screen for 8 seconds and a noise could also be heard. The court ruled that the defendant must have noticed the notification.

Significant carelessness

The court then addressed the question of whether there was a case of considerable carelessness. In order to be able to speak of culpability within the meaning of Article 6 of the Road Traffic Act, there must be a case of considerable carelessness. The message on the display related to the tyre pressure and referred to the instruction booklet. The message does not imply that there is a dangerous situation which requires the driver to stop driving immediately in order to check the car. In the opinion of the court, the defendant should not have had to foresee on the basis of the warning that the tire would slowly deflate and come off the rim and that the car would therefore suddenly become uncontrollable and a dangerous situation would arise. The court also considered it important that the yellow lights, as opposed to the red ones, did not indicate such a defect that the car could not be driven on for some time. It was also important that the defendant had not noticed anything abnormal in the driving behaviour of the car until just before the accident. Finally, experts have indicated that the deflating of the tyre does not have to be noticeable until the tread has been worn off. Therefore, the defendant did not have to deduce the imminent danger from the warning nor from the driving behaviour of the car.

Although the defendant acted carelessly and took a risk by not immediately investigating what was wrong with his tyres and by not adjusting his position on the road and his speed in response to the notification, there is no room for the conclusion that considerable carelessness/inadequacy. According to the court. It could therefore not be proven that the defendant was liable to punishment within the meaning of Article 6 of the WVW.

Danger

Next, the court will examine whether the defendant is liable to punishment under article 5 of the Road Traffic Act. This article makes dangerous driving punishable. The court considered the following. The defendant ignored the warning and did not consult the instruction booklet and subsequently check his tyres. An average road user can be expected to make a quick inspection after such a warning. According to experts, such a report is made when the tire has lost 20% of its size. If the defendant had checked the tyres, he could have seen that the tyre was deflating. He could then have realised that driving on was dangerous and prevented the accident. He could have acted cautiously and prevented the accident by driving in the right-hand lane, next to the hard shoulder, and adjusting his speed. If the rim came off the tyre, he could have stopped his car on the hard shoulder.

As the defendant ignored the warning and continued to drive on the left at high speed, far from the hard shoulder, he caused a concrete danger on the road. This resulted in a serious traffic accident. The defendant was punishable pursuant to Article 5 of the WVW.

Severity of the accident

From the victim's point of view, it may be incomprehensible that, given the seriousness of the accident, no substantial carelessness is assumed. However, in 2004 the Supreme Court[2] It is stipulated that substantial carelessness cannot be inferred from the seriousness of the accident. What matters in particular is whether it can be deduced from the behaviour that someone has acted very carelessly. Whether a victim, as a result of the accident, only has damage to his or her car or whether he or she has suffered serious physical injury does not determine whether a person has been careless. The nature and seriousness of the act is important. Of course, it does make a difference whether a person drives 200 km per hour on a highway and causes a collision in which someone is killed or whether he drives 120 km per hour.

Conclusion

In view of the circumstances, the defendant did not have to foresee that the tyre would deflate and come off the rim, thereby creating a dangerous traffic situation. He did not have to assume that he would not be able to continue driving. However, according to the court, he did display dangerous driving behaviour by not consulting the instruction booklet shortly after the warning, by not reducing his speed and by not moving to the right-hand lane. Under these circumstances, ignoring a (yellow) warning light is considered dangerous driving.

The defendant 'only' ignored a notification by not checking his tyres and by slowing down and driving in the right-hand lane. He did not make any strange or unexpected manoeuvres. These are behaviours that quickly come to mind when considering dangerous driving behaviour, such as overtaking when the motorist lacks sufficient overview. Nevertheless, according to the court, this behaviour also falls under dangerous driving behaviour.

[1] Rb. Den Haag 31 July 2019, ECLI:NL:RBDHA:2019:7919.

[2] HR 1 June 2004, ECLI:NL:HR:2004:AO5822.