Supervisors' Liability: The Dutch Fireworks Case
| Author | Gerrit Van Maanen,Renée Huijsmans |
| Published date | 01 December 2009 |
| Date | 01 December 2009 |
| DOI | 10.1177/1023263X0901600402 |
| Subject Matter | Article |
16 MJ 4 (2009) 383
SUPERVISORS’ LIABILITY:
THE DUTCH FIREWORKS CASE
A comparative study between the Netherlands,
the United Kingdom and Germany on
state liability in case of failure of supervision
R H and G M*
ABSTRACT
Man-made disaste rs like the Dutch Enschede Fireworks ca se oen raise several questions;
How did this ha ppen? Who is responsible? How can we prevent thi s from happening
again? And more important, who pays for the damage s? Supervisors’ liability has taken
a dierent turn than was to be expected in the Neth erlands. Municipality and state are
not liable for failu re of supervision on any basis. e Court appe ars to feel an aversion to
state liability in man-made mass tort s. is aversion can be explained by the fact that in
almost all cases of failure of supe rvision the ‘real cause’ h as to be found with th e actual
oender, not with the failing super visor. Furthermore supervisors’ liability might op en the
oodgate to claims. Even though the reluctance of the cour t to impose supervisors’ liability
can be elucidated, a ccording to the above reasoning, the Dutch system is ambiguou s when
it comes to superviso rs’ liability. How do other jurisdiction s deal with this? What are their
judicial points of view with regard to supervis ors’ liability? Are there any emergent general
rules for supervisors’ liability or is the i ssue dealt with on a case by case basis? And does
this mak e other syste ms, as indistinct as the Dutch system or not when we examine the
Dutch reworks case of Enschede? In this Article we will examine these issues and consider
relevant legislation from three dierent European domestic jurisdictions . State liability
throughout the Netherlands, the United Kingdom and Ge rmany, will be compared in light
of the Dutch Fireworks disaste r.
Keywords: supervisors liabi lity; comparative tort law; tort law; tort of negligence
* Mr. Renée Huijsmans hold s a master in law and is cu rrently working as a n advocate at AKD; Prof . Mr.
G.E. van Ma anen is professor in Civi l Law at Maastricht Univers ity.
Renée Huijsmans a nd Gerrit van Maanen
384 16 MJ 4 (2009)
§1. INTRODUCTION
13 May 2000, Enschede, e Netherl ands 15.25 hours – a massive rework s explosion
blows away half of Roombeek , an Enschede district. 23 people are killed, more than 950
are injured and 500 houses are totally destroyed or uninhabitable. e total damage of the
disaster is 550 million Euros. Aer research it is cl ear that an employee of S.E . Fireworks,
a Dutch reworks company, was dangerously producing reworks. Further more there
was too muc h (177.000 kg in stead of the permitted 158.500 kg) and incorrectly classied
reworks stored.
Man-made disasters like the Enschede Fireworks case oen raise several questions;
How did this happen? Who is responsible? How can we prevent this from happening
again? And more important, who pays for the dama ges?1 Supervisors’ liabil ity has taken
a di erent turn t han was to be expec ted in t he Netherlands. One of the basic rules in
Dutch liability law is that ‘everybody is deemed to bear his own damages’. e judgment2
in the Dutch Fireworks case reinforces these traditional liability basics. Municipality and
state are not liable for failu re of supervision on any basis. e Court appears to feel an
aversion to state liability in ma n-made mass torts. is aversion can be explained by t he
fact that in al most all cases of failure of super vision the ‘real cause’ has to be found with
the a ctual oender, not with the faili ng supervisor. Furthermore super visors’ liabil ity
might open the oodgate to clai ms.
Even though the reluctance of the court to impose supervisors’ liabil ity can be
elucidated, a ccording to the above rea soning, the Dutch system is ambiguous when it
comes to supervisors’ liability. Opinions and even judgments dier when it comes to
holding authorities liable for failu re of supervision.
How do other jurisdictions deal with this? What are their judicial points of view with
regard to supervisors’ liability? Are there any emergent general rules for supervis ors’
liability or is the issue dea lt with on a case by case basis? A nd does this ma ke other
systems as ind istinct as the Dutch s ystem or not when we examine t he Dutch reworks
case of Enschede? In other words, how do the United Ki ngdom and Germany cope with
supervisors’ liabi lity?
In this Article we will examine these issues and consider relevant legislation from three
dierent European domestic jurisdictions. State liability t hroughout the Netherlands,
the United Kingdom and Germany, will be compared in light of the Dutch Fireworks
disaster. e emphasis of this paper focuses on t he following issue: How would countries
1 For general information on c ompensation i n case of di sasters se e: Faure & Har tlief (eds), Financial
Compensatio n for Victims of Catastrophes. (Springer Wien, New York, 2006) (Series Tort and Insurance
Law Vol. 14); Brugge man, Compensating cata strophe victims, (Maa stricht University, Dissert ation
2010).
2 Rb Den Haag 13 December 20 06, LJN AZ4 247.
Supervisor s’ Liability: e Dutc h Fireworks Case
16 MJ 4 (2009) 385
like the United Kingdom and Germany deal with the state liability issue arising from the
facts of the Dutch Fireworks ca se?
In order to answer this question, we wi ll rst ana lyze D utch tort law in general
and super visors’ liabilit y in c ase of fa ilure of super vision in particular in Section 2 of
this Article. We will exa mine the tenet of t he unlawful act (Art icle 6:162 BW) and its
requirements. Furthermore the ‘extra’ re quirements in case of failure of super vision
will be considered . ereby we will draw a disti nction between general and concrete
supervision.
Subsequently, in Sec tion 3, the Dutch Fireworks disaster wi ll be fur ther elaborated.
e decision and reason ing of t he Dutch cou rt on t he complaints in this case w ill be
explained and criticized. Our a rgument w ill revea l why the Dutch Fireworks case is
remarkable with regard to developments in jur isprudence.
Additionally, Section 4 will set out the relevant principles of English tort law in general
and superv isors’ liability in case of fa ilure of supervi sion in particu lar. Although there
are several bases for liability of supervisors, the foc us will be on the tenet of negligence
and its requi rements since this is most relevant for the problem at issue herein. e
application of the doctr ine of negl igence will be furt her examined in light of relevant
case law with regard to super visors’ liability in the event of fai lure of supervision.
e development of superv isors’ liability in case of failure of supervision in Engl ish
jurisprudence wil l be tracked through its evolution (§5).
In Section 6, we wi ll move on to a look at the developments within the German legal
system. First Ge rman tort law in general and its requirements will be dealt with (§823 I
BGB). en the specic Articles for supervis ors’ liability in case of failure of supervi sion
(§839 BGB and Article 34 Grundgeset z) will be clar ied.
In addition to this an illustrative German case w ill be applied to show the latest
developments in terms of supervisors’ liabi lity in case of failure for supervision; the case
of e sick child refused to par ticipate in special tuition3 (§7).
Next is drawing up the bal ance sheet, in which all three systems , Dutch, English and
German, wil l be considered (§8). e tort systems will be compared, wit h regard to state
liability, on the main complaints introduced a gainst the state in the D utch Fireworks
case: negligent adv isement, lack of regulations to protec t citizens against t he dangers of
professional reworks and failure of super vision on compliance with the permits.
Finally a conclusion (§9) will follow in which the central question about how countries
like the United Kingdom and Germa ny would deal with state liability in cases like t his
Dutch Firework disaster wi ll be summarized.
Our presumption is that the English approach will be reluctant towards state liabilit y
in the Dutch Fireworks case, as the United Kingdom i n general is not very keen on
holding authorities l iable at all. As the E nglish system is known to be reluctant towards
the binding of contracts , ‘only bound when signed’, we expect t he English case law to be
3 Oberlandesgericht Ha mm, 23 March 1990, AZ 11 U 108/89.
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