When can third-party knowledge be imputed to the offender or the injured party?

Friday 27 October 2023, 2:30 pm
PhD student
E.A.L. van Emden mr.
prof. mr. C.J.M. Klaassen, prof. mr. S.C.J.J. Kortmann

Knowledge is often essential to labelling behaviour as unlawful. If the offender does not know and cannot reasonably be expected to know something, this lack of knowledge is usually sufficient to declare their behaviour not unlawful. No punitive damages can then be imposed on them. However, it often happens that people in the offender's circle do have relevant knowledge (external knowledge). Think of auxiliary persons, such as consultants, or family members of the offender. In a 2005 ruling, the Supreme Court ruled that it is possible, under certain circumstances, for the knowledge of a third party to be imputed to the offender. This imputation of external knowledge may lead to the offender's conduct being declared unlawful after all. However, there is no clarification in this judgment as to when imputation of knowledge is possible and what standard it is subject to. In this research study, the standard for imputing external knowledge is derived from the wrongful act system. This also provides a yardstick for imputing third-party knowledge to the injured party when assessing the injured party's own fault. This research study elaborates on the circumstances that are relevant to the assessment, and the arguments that parties should present to argue that third-party knowledge should or should not be imputed to the offender or the injured party. 

Elisabeth van Emden has been a lawyer since 2004, and she has worked at NN Advocaten (Nationale-Nederlanden) in The Hague since 2012. Elisabeth is Treasurer of the Board of the Association for Liability and Compensation Law (Vereniging van Aansprakelijkheids- en Schadevergoedingsrecht, VASR) and president of a charity, and she has held various guest lecturer and lecturer positions. She is also a deputy member of the Council of Discipline in The Hague and an editorial board member of the Overeenkomst in de Rechtspraktijk journal. She has been conducting this research as an external PhD candidate since 2016.