Personal injury to children
When a child suffers personal injury, due to a collision or sexual abuse, for example, it can have far-reaching psychological and social consequences. It can also have major consequences for further (study) careers and the job market. After all, a child is vulnerable. That is why Dutch law offers additional legal protection to children. For example, if a child under 14 is the victim of a traffic accident, the driver is always 100% liable.
Children may perform worse at school due to the damaging event, become isolated and carry anxiety for a long time. Besides material damages, the child’s intangible damages are also great. However, estimating a child’s damages is very difficult.
Estimating damages
After the liable party admits liability, the parties will have to estimate the child’s damages. Adequate damages can then be given. Considerations will include loss of earning capacity, domestic help, medical expenses and intangible damages. With children, however, it is difficult to estimate damages. Unlike adults, much is still uncertain about their future. We do not know what education the child would have received, how the child would have performed and what kind of job the child would have had without an accident. It is also still uncertain what physical and psychological symptoms the child will develop in the future due to the injury.
To estimate the damages, therefore, a hypothetical situation is assumed. What would the child’s life have been like if the accident had not occurred? Because of the uncertainties already mentioned, it is wise to settle the damages only when the child is of age. After all, there is then more certainty about the consequences of the damaging event. This way, you can be sure that you will not miss out on compensation to which you are entitled.
Discrimination based on gender
One danger in calculating the child’s damages is discrimination based on gender. This is because it is necessary to determine the child’s total damages on the basis of an almost entirely hypothetical situation.
The danger of discrimination can be seen in a ruling by the District Court of The Hague on 23 July 2013. A woman had been the victim of a traffic accident as a child. The other party acknowledged liability and the parties were in the process of settling the damages. However, this settlement stalled due to a difference of opinion on the determination of loss of earning capacity, one of the items of damage. The court ruled that the victim would not have worked for 10 years after the birth of her children and would work part-time thereafter. According to the court, this is not discriminatory. Indeed, it is inevitable to take the victim’s gender into account.
In contrast, the Human Rights Board ruled that the calculation of the loss of earning capacity did make directly prohibited gender-based distinctions. The principles in calculating this loss of earnings would not be applied to a man. Parties should therefore be wary of this.
BEM account
Once the child’s damages have been assessed, they will be paid. However, you are not there yet. Special rules apply when paying compensation to the child. The compensation should be paid into a BEM account.
A BEM account is a bank account to which a BEM clause applies. BEM stands for: Investment, Inheritance and Other Funds Minors. This BEM clause involves an escrow bank account in the name of a child who is under the age of 18. The child’s parents, or other legal representative(s), can only withdraw money from this account after obtaining permission from the cantonal court. It is only when the child reaches the age of eighteen that the BEM clause ends by operation of law. The child then owns the money.
If you do not have a BEM account for your child where the compensation can be deposited, you should open this account. Otherwise, the child cannot receive the compensation from the liable party. The reason for this BEM account is to prevent anyone other than the entitled party from getting the money. As the child’s legal representative, you yourself can apply to your bank for a bank account with a BEM clause.
Have you suffered personal injury and need the assistance of a lawyer? If so, please contact Elfi Personal Injury Lawyer for a no-obligation consultation.
Written by Ms S.P. (Sasha) Versteeg
