When you experience a negative event, you feel bad. If you are injured in a traffic or work accident, you experience pain, stress, and discomfort. If someone insults you and spreads lies about you, you are naturally angry. The same is true when someone violates your privacy. You feel angry, unsafe, and uncomfortable. You are naturally very upset if you are confronted with serious injuries to a loved one. And you are overwhelmed with grief when this loved one dies.
There are many unpleasant events that can make you feel bad. The person who is responsible for these events must compensate you for the fact that you feel bad. This damage item is called immaterial damage. The compensation you receive for immaterial damage is called compensation for pain and suffering.
How high is compensation for pain and suffering?
I often represent people who are victims of traffic and work accidents. The more serious and long-lasting the injury, the more damage items must be compensated by the liable party. Compensation for pain and suffering is often only a small part of the total compensation. Clients then wonder why they receive a “measly amount” for all the suffering they have endured.
To answer this question, I consider what the Supreme Court – the highest court in civil, criminal, and tax cases – has to say about compensation for pain and suffering.
The Supreme Court has explained in various rulings which aspects must be considered to determine the amount of compensation for pain and suffering. The Supreme Court says that the determination of the amount of compensation for pain and suffering depends on the nature and severity of the injury and the consequences thereof for the person concerned. The nature, duration, and intensity of the pain, grief, and loss of life satisfaction must be considered. In doing so, regard must be had to the amounts that have been awarded by Dutch judges over the years and foreign decisions may be considered, although they cannot be decisive. Account must be taken of inflation and the nature of the liability and the breach of norms are also relevant.
Despite the guidelines provided by the Supreme Court, it remains quite a bit of guesswork in practice to determine the amount of compensation for pain and suffering. The elements that the Supreme Court puts forward are not measurable or quantifiable. Pain is subjective.
How does the lawyer approach it?
The personal injury lawyer first makes sure that she has a good understanding of the injury. The lawyer considers what the current and future limitations and health risks are. In addition, she brings together with the victim what the injury consists of. This can include physical pain, but also grief due to the inability to pursue a hobby, or melancholy due to the disappearance of career opportunities. Once the injury and the suffering have been mapped out well, most lawyers look at what judges have awarded in similar cases for compensation for pain and suffering.
To give just one example: If Ali was once awarded € 1,500 for a broken hand, then the lawyer claims the same amount of compensation for pain and suffering for Bas, who also had a broken hand.
If Bas is, however, a brilliant pianist at the beginning of his career and sees his career disappear due to his broken hand, then € 1,500 does not cover his suffering. What do you claim in such a case? Because for Bas, a million euros is not even enough. Bas will not receive such a high amount of compensation for pain and suffering. What he will get will have to be negotiated, or must be determined by a judge.
During the negotiation process or in a possible legal proceeding, I try not to find too much connection with what judges have awarded in similar cases. Every person is unique and so every person experiences the injury differently.
In addition, I believe that the amounts of compensation for pain and suffering awarded by Dutch judges are too low. There should be more upward pressure in determining compensation for pain and suffering, and this is not achieved by always claiming the same modest amounts.
Highest compensation for pain and suffering
The Rotterdam District Court awarded a compensation of € 350,000 in a ruling of December 24, 2020 for compensation for pain and suffering. This is the highest amount of compensation for pain and suffering that has been awarded in the Netherlands to date.
In this case, the victim had suffered severe physical injuries due to an assault. There was brain damage resulting in hemiplegia on the right side of the body, disorders in the cognitive functions of the brain, and a reduced alertness. The victim is severely limited in the execution of his daily activities, mobility, and communication due to the brain damage.
As a result of the accident, the victim has changed from a healthy young man to someone who needs 24-hour care. Given the serious consequences of the injury, I can imagine that the victim and their loved ones still find the compensation for pain and suffering to be quite low. In fact, most victims see compensation for pain and suffering as only a Band-Aid on the wound.
Do you have personal injury and need the assistance of an attorney? Then you can contact Elfi Personal Injury Attorney for a free consultation.
Written by I.L. Madu