Archive for February, 2011|Monthly archive page

Dutch International Private Law

This is a link to the European Commissions Judicial Network, which contains relevant information on Dutch International Private Law. You can find information on sources of law, the application of rules of conflict, and the rules of conflict.

Award for damages in the Netherlands

An accident causing permanent injuries has far-reaching implication for a victim’s personal life. If an accident occurs when working or traveling in the Netherlands and Dutch law is applicable damages will be awarded according to Dutch law, even if  the victim lives in another country. The rules for damages are set by law and case-law.

This blog gives a brief description of compensation which can be claimed from the liable party.

Principle of full compensation

The principle of full compensation is the basic principle underpinning the law of damages in The Netherlands.  A person liable shall put the victim – as far as possible – in the position he would have been had the accident not occurred.

Damages

A victim can claim general and special damages.  Special damages, or pecuniary damages are all costs incurred as a result of the accident as well as losses, such as medical expenses, domestic care, travel expenses, costs of nursing and care, change to one’s house but also lawyer’s fees.  A victim needs to substantiate his claim by presenting invoices, bills, salary slips and so on.

Pain and suffering

General damages or pain and suffering are determined by  equity, taking all circumstances into consideration.
 The Dutch Supreme Court has set out some basic rules. First of all a judge has to take into consideration all circumstances of a particular case.  More specifically he should look at the injuries and the consequences of the injuries on the victims life.  Furthermore the judge  has to pay attention to case law in similar cases. This process is simplified by the collection of abstracts in a special edition in the review of traffic law ‘ Verkeersrecht ‘ , the ‘Smartengeldbundel’ which is updated every three years and provides index-linked awards.  Judges can also refer to awards for non-pecuniary damages in other countries, albeit that the award can not be solely determined on that basis. A judge may also take into consideration the nature of the liability.  There is no  absolute limit on the amount of non-pecuniary damages that can be awarded. There are no caps set by law.

The injuries and disabilities are particularly relevant, as well as the age at which the accident occurred. As a rule the more severe the injuries and the younger the victim, the higher the damages awarded for pain and suffering.  The damages awarded for pain and suffering are determined in negotiations with the insurer or by the court if the parties fail to reach agreement. Awards are among the lowest in Europe.

A victim should explicitly claim an award for pain and suffering. If he or she fails to do so and dies the heirs can’t claim these damages.

Lawyer’s fees

A distinction is made between costs of a procedure and the out of court lawyer’s fees.
During negotiations, according to article 6:96 BW costs of legal assistance and other disbursements  are to be compensated in full. They should be reasonable and reasonably made. This means that it should be reasonable to incur  these costs and their extent should also be reasonable.

In case of court proceedings other rules apply. According to article 241 of the Dutch Code of Civil Procedure (Rechtsvordering) legal fees are awarded on a fixed basis. The courts use tables. The awards do not cover the real lawyer’s fees.

Personal injury lawyers generally charge on an hourly basis. They are not allowed to charge on a contingency or conditional fee basis. If liability is accepted this is not necessary as fees are part of damages incurred.

For further information on Dutch law on negligence and damages contact Antoinette Collignon, antoinette.collignon@legaltree.nl

copyright Antoinette Collignon  2011

Rights of Children in the EU, 11 new measures

Children’s rights are enshrined in EU law, in particular the EU charter of fundamental rights, The EU and its member countries are legally bound to uphold these laws.  All 27 countries have also ratified the UN convention on the rights of the child.

The European Commission has recently proposed 11 measures to protect children’s rights in Europe and overseas. The measures are as follows:

  • laws to better protect children (as an especially vulnerable group) during legal proceedings and in court
  • laws safeguarding children when they are suspects or accused of a crime
  • new laws ensuring that decisions on parental responsibility following divorce or separation are recognised and enforced in all EU countries
  • action to promote Council of Europe guidelines on child-friendly justice and take them into account in future civil and criminal law-making
  • support for training judges and other professionals to help children in court
  • better training for authorities responsible for unaccompanied children, including those seeking asylum in the EU
  • special attention for children in an upcoming EU plan to help the Roma integrate more in society
  • support for the quick introduction of the EU’s 116 000 hotline for missing children (cross-border alert systems for abducted or at-risk children would also be encouraged)
  • measures to counter cyber-bullying, grooming, exposure to harmful content, and other online risks through the EU’s safer internet programme
  • support in combating violence against children and child sex tourism, and protecting victims of armed conflicts, through the EU’s overseas and humanitarian aid programmes
  • a single EU website on children’s rights

These measures are set out in more detail in a Commission policy paper on children’s rights .

Let’s hope that these measures lead the way to a better world for children.

Information for Consumers in the EU

Article 169 of the Treaty on the Functioning of the European Union aims to safeguard the health, safety and interests of consumers. The European Policy promotes consumers’ rights to information and education, and their right to organise in order to defend their interests. This website contains relevant links for consumers.

Cross-Border Traffic Accidents in Europe: Diversity in the EU

Cross-Border Traffic Accidents in the European Union

Introduction

The slogan of the European Union is: Unity in diversity. The E.U. has 27 MS with unique languages, cultures, histories, and legal systems.  Every Member State has different laws on damages, limitation periods and standards for medical evidence.  For lawyers working in the field of cross border accidents it is important to understand these differences.

The answer to the question what happens if a Polish citizen on vacation in the Netherlands suffers a traumatic injury while driving through Belgium is  not so clear-cut.

According to Regulation (EC) No. 864/2007 of the European Parliament and of the Council of 11 July 2007 on the law applicable to non-contractual obligations (“Rome II”), a victim is entitled to compensation according to the law of the country where the accident occurred unless both parties have “their habitual residence” in another country or another country is “more closely connected” with the tort.

This means that an Italian injured by a Belgian driver on the streets of Belgium will apply Belgian law to her claim.  This scenario has become more common with the growing mobility of E.U. citizens and an increase in the number of cross-border accidents.

This article highlights a few substantive and technical differences in the law of torts as applied to cross-border accidents.

Specialization of lawyers in the field of personal injury law

The development of an experienced and qualified personal injury bar makes a big difference in the enforcement of legal rights of traffic accident victims.  In most European jurisdictions, the degree of specialization in personal injury law is fairly low.  This is not the case in England, Wales, Ireland, Scotland, The Netherlands, France, and Switzerland.

The most formidable European organisation for personal injury lawyers is PEOPIL (www.peopil.com) with members in all member states.  PEOPIL is a non-partisan organisation, focussing on dissemination of  knowledge of personal injury law, networking, access to justice for victims.   The PEOPIL Research Group has published books explaining the central components of personal injury litigation in different MS, and PEOPIL organizes periodic conferences throughout Europe for its members.

Limitation periods
Limitation periods can prevent claimants from obtaining remedies if they act too late after suffering injuries.  There are major differences among MS with respect to personal injury limitation periods.  Not only do limitation periods vary in amount of time, but there are variations as to the beginning of a limitation period, procedural requirements for stopping the running of a limitation period, and application to minors, disabled people, and victims.

In Spain, the limitation period for road traffic accidents is one year. In Italy, there is a 2-year limitation period for road traffic accidents.  Germany has a 3-year limitation period for actions in tort, but claims for pain and suffering have a limitation period of 30 years. Belgium has a limitation period of 3 years as well as a statute of repose with a limitation period of 30 years regardless of when the victim discovered his or her injury.

In all European jurisdictions the limitation period begins to run from the date of occurrence of the damage, which is usually the date of the accident.

In Belgium, the Netherlands, Italy and Spain, it is enough to send the defendant a registered letter with a written warning in which a victim unequivocally claims damages sustained as a result of the accident. It is not necessary to issue proceedings. In England, Wales, Ireland and Scotland, it is necessary to issue proceedings.

In the E.U., courts apply the limitation period of the country where the accident occurred even if the lawsuit is filed in a different MS.  The limitation period is generally considered to be a matter of substantive law except in the United Kingdom where there is uncertainty as to whether a court will apply the UK limitation period, as a matter of procedural law, instead of the limitation period of the country where the accident occurred.

Applying these principles to the hypothetical example, an Italian who was injured by another driver in Belgium and later files a lawsuit in Italy will have her case managed by an Italian court that applies the Belgian limitation period.  The need for lawyers in the E.U. to apply the limitation period of a different member states i.e., where the accident occurred, demonstrates the necessity for a high level of cooperation among lawyers in different jurisdictions.

Protection of minors
In most member states, minors and disabled people are under-protected. In Italy and Austria, the limitation period starts to run from the appointment of a legal representative. In The Netherlands, the limitation period starts to run from the date a minor turns 18 years old but there is no such protection for disabled people.  In France, the limitation period starts to run from the age of 18.  In France and Italy, the limitation period is suspended during a period of disability unless the disabled injured person is under the charge of someone capable of taking action.

Medical experts
Medical experts play an important role in case assessment and evaluation but there are wide differences with respect to requirements to act as medical experts, the form and content of medical reports, medical scales for the evaluation of injuries, and the use of experts and expert reports in court. There is no unified standard for expert evidence.

In most member states, there are no special courses or certificates for medical experts. The form and content of medical reports vary. In The Netherlands, Spain, and Belgium, experts report on injuries as well as the percentage of disability.  In The Netherlands, experts are appointed by both parties or by the judge. Luxembourg courts often rely on foreign experts from France, Belgium, or Germany. Some courts strongly rely on expert reports while others use them, only partially, to help in reaching a decision.

Awards for pain and suffering
In different Members States, the same kind of injuries with the same kind of impacts on victims’ lives may lead to completely different compensatory awards. Some member states allow unlimited non-pecuniary losses while other member states apply caps, fixed tariffs, and limits set by law. The latter include Spain and Italy with respect to road traffic accidents.  Denmark also has fixed maximum statutory awards.

Be Aware of differences and seek help
As compensation of damages for traffic accident injuries vary widely throughout the E.U. on the basis of different limitation periods, substantive laws, caps, admissibility standards for expert opinions, and networks among plaintiff’s lawyers. Lawyers working in this field should be aware of the procedural and substantive differences and seek help from lawyers in countries where the accident occurred.

If you need help in the Netherlands or have questions about Dutch law and cross border accidents contact antoinette.collignon@legaltree.nlhttp://www.legaltree.nl/en Continue reading