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

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