Archive for the ‘pain and suffering’ Tag

Pain and suffering awards in the Netherlands

If you have had an accident in the Netherlands and suffered injuries and provided that there is a liable party from which you can claim damages  under Dutch law one of the questions you will ask yourself could be: Am I entitled to an award for pain and suffering?

According to Dutch law (article 6:95 in combination with article 6:106 BW)  there is a limited right to non-pecuniary damages.  The main source for these damages is article 6:106 Dutch Civil Code. According to article 6:97 Dutch Civil Code the judge is entitled to quantify the total amount of damages suffered .

Where an injured person suffers mentally from the consequences of physical injuries sustained, there are no specific requirements about the degree of seriousness of the mental suffering. If a victim has only suffered psychiatric injury, the threshold is that there is a recognizable psychiatric illness. Annoyance of greater or lesser mental discomfort will not suffice.
There is a wide margin of appreciation deciding on the amount of non-pecuniary damages.  The victim doesn’t need to specify to what extent he suffered non-pecuniary damages nor is he obliged to demand a specific amount. It is however wise to state all relevant facts and circumstances.
The Dutch Supreme Court has set out some basic rules. First of all a judge has to look at all circumstances of a particular case .  More specifically a judge should consider the injuries and the consequences of the injuries on the victims life. 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.
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 provides index-linked awards.  Judges can also refer to awards for non-pecuniary damages in other countries, albeit that the award can no be solely determined on that basis. A judge may also look at 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 or baremes. Awards are among the lowest in Europe.

An important thing to know is that 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.

If you need further information about Dutch law on negligence and damages you can contact Antoinette Collignon at antoinette.collignon@legaltree.nl

Amsterdam, 6 March 2011

copyright Antoinette Collignon