Compensation for pain and suffering after an accident
On November 24, 2011, a 54-year-old man, husband and father of four daughters, was hit by a car on a zebra crossing in Assen. This car was insured with Univé.
Very serious injury
In this accident the man suffered very serious injuries, namely:
• skull base fracture
• dislocation fracture and
• a high spinal cord injury.
The man was initially treated in the Intensive Care Unit of the University Medical Center in Groningen. He was then admitted to a nursing home. The ventilation system at the nursing home was not functioning optimally, causing the man to experience constant shortness of breath.
On January 14, 2012, a serious incident occurred in the nursing home due to incorrect operation of the ventilator. This briefly interrupted the ventilation. This not only made the man unwell but also made him feel more anxious. Communicating was impossible or even difficult due to the intensive ventilation.
Man dies
From February 21, 2012, the man's condition deteriorated sharply. From February 29, his condition became worrisome due to a deteriorating medical condition. On March 7, 2012, all medication was stopped, and the man died on March 8, 2012.
Calculate non-pecuniary damages according to the surviving relatives
The surviving spouse claims €200,000 in damages from Univé on behalf of her deceased husband. Univé initially offers €5,000 in damages. Only much later in the damages assessment process does Univé increase the damages to €30,000.
To the judge
The wife goes to court and claims damages that, according to her, “should be between €150,000 and €300,000”.
Univé also maintains in court that €30,000 in damages should be sufficient in this specific case.
Calculating non-pecuniary damages according to Univé
Univé believes that the suffering the man had to endure was only very short-lived because he died approximately three months after the accident.
At Univé, the compensation function is paramount when calculating non-pecuniary damages.
In this context, Univé considers the duration of the suffering to be particularly relevant for calculating the compensation for non-pecuniary damages.
Relevant factors when calculating non-pecuniary damages
When calculating damages for pain and suffering, the court takes into account all relevant circumstances, including:
• the nature of the liability
• the nature and severity of the injury
• the duration and intensity of the grief
• the loss of enjoyment of life
• the seriousness of the infringement on the victim's sense of justice
• the nature of the conduct accused of the liable party (the degree of culpability)
• the economic circumstances of both parties
• the amounts awarded by Dutch courts in comparable cases
• the maximum amounts awarded by Dutch courts
• the devaluation of money which has occurred since the relevant judgments and
• the (changed) societal views on compensation for suffering.
Calculating non-pecuniary damages according to the court
The court rules against Univé!
Non-pecuniary damages not only have a compensatory function, but also that of satisfaction.
Especially in this case, where during the hearing a film recording of the man in the nursing home was shown in which he explicitly states that he is claiming compensation for pain and suffering from the person who caused him the great suffering he has to endure.
For this function of satisfaction, the court considers that a link to the duration of the suffering is less appropriate.
The judge stated that the victim's age at the time of the accident and the length of their remaining life can be taken into account when calculating damages for non-pecuniary damages. However, that is not the issue in this case.
Univé's first offer "incomprehensible"
In view of all this, the court states that the amount of €5,000 in damages initially offered by Univé for the suffering inflicted and in view of its good economic position, is “incomprehensible”.
Calculating non-pecuniary damages based on the circumstances of the case
The court then looks at the circumstances that play a role in this case:
• The collision occurred on a zebra crossing, where the man had reason to believe he was safe. The collision was caused by reckless driving by Univé's policyholder. The driver's liability is very serious.
The man's injuries fall into the "most severe category." This caused him intense suffering.
• The man, a former husband and father of four daughters, was a very involved family man and had an active and social life. After the accident, he was physically almost completely incapable of anything due to his severe spinal cord injury.
• The man was completely paralyzed in his arms and legs, incontinent and totally dependent on the help of others with all his daily needs.
• The artificial respiration led to so many complications that the man, who was physically unable to alert the nursing staff in the event of an emergency, had to live with the fear of being insufficiently ventilated and suffocating.
• Although the man lived only a relatively short time after the accident, he consciously endured this severe suffering, in the isolation of the nursing home and no longer surrounded by his family. He also knew that his hobbies of sailing and playing music with his family would no longer be possible.
• The man was unable to speak or was able to speak only with great difficulty.
The compensation for pain and suffering
Considering all these circumstances and considering the amounts recently awarded by Dutch courts in comparable cases in 2013 and 2014, the court considers compensation of €125,000 to be fair.
Univé demands a bank guarantee in case of failure!
It is appropriate for Univé to ask the court that if a higher compensation than €30,000 is awarded, the requirement should be stipulated that the surviving relatives provide adequate security for Univé in the form of a bank guarantee for the amount awarded.
The judge sees no reason for this, as Univé will have ample opportunity, if necessary, to compensate for this with the financial compensation ultimately determined for the surviving relatives.
Univé is therefore ordered to pay damages of €125,000.
(ECLI:NL:RBOVE:2015:944)
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When can I claim personal injury damages?
You can claim damages for personal injury injury (been injured) due to the fault of another person
Personal injury can be caused by, for example:
In addition, you may think of injuries sustained during:
- organized trip
- unsafe product or
- fall at someone else's home, in a shop or on the street
It's best not to wait too long to file a personal injury claim. It's best to do so immediately after the accident.
Even if it is not yet clear at that time what your injury and its financial consequences consist of.
However, someone else must liable and must have taken out liability insurance for this (AVP/AVB/WA).
Even if you caused the accident yourself , you can sometimes still claim damages for your injuries. For example, if you SVI (Passenger Injury Insurance) or SVO (Passenger Injury Insurance).
Are you unsure whether and when you are entitled to personal injury compensation ?
Don't hesitate to contact us now for a free, no-obligation consultation . It's free , and you'll know exactly where you stand. Afterward, you can decide for yourself what to do with our advice.
What injuries do you treat?
We can actually help you with all types of personal injury
Van der Toorn Personal Injury can help you with all types of injuries. We specialize in handling "serious personal injuries," such as:
- brain injury (ABI)
- spinal cord injury
- burns
- dystrophy
- bone fractures and
- cosmetic injury.
But we're also happy to help you if someone else has suffered an injury, such as neck injuries, whiplash , back injuries , bruises, sprains, dog bites, temporary injuries, and so on.
We cannot help with all types of personal injury
The only thing we cannot help you with is personal injury caused by:
- violence
- medical errors and/or
- situations of abuse.
In that situation, we will of course refer you to a party that is specialized in this.
Always request free, no-obligation advice on personal injury claims
Do you have questions about your personal injury? Or are you unsure if we're the right place for you?
Please do not hesitate to ask us for a complete and free, no-obligation personal injury claim consultation.
When should I contact you?
You don't have to! But it's in your best interest to contact as soon as possible
Only then can you be sure there's someone who's thinking solely about your interests . Because that's our job: thinking about yours .
But what is: as quickly as possible?
Sometimes an insurance company will contact you very shortly after the accident. They'll ask how you're doing and also ask for all sorts of other information.
You can't know if that insurer is legally asking too many questions about your health before the accident and which doctors you've seen. You'd rather avoid that, right? So never wait too long to contact a personal injury firm .
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What personal injury compensation amounts am I entitled to?
The personal injury compensation amounts you are entitled to are:
Allowances for additional assistance , such as:
- household help, shopping, taking children to school, etc.
- help in the garden and
- help with the maintenance and painting of your home.
In addition, your personal injury may have consequences for your income , such as:
- income that is not fully paid (self-employed person, temporary worker, zero-hour contract, etc.)
- no more irregular hours allowance
- no longer being able to work overtime
- missed promotions and
- missed pension accrual
Finally, you can think of other very important personal injury damages amounts , such as:
- Study delay
- Reintegration costs for guidance to other work
- Costs associated with admission to a hospital or rehabilitation center
- Travel expenses
- Medical expenses
- Non-pecuniary damages
- Economic vulnerability
- Statutory interest
- Furthermore, all costs that you would not have incurred without the accident…
- For example, the wages you did not receive because you could not go to work.
- Gasoline because you had to go to the hospital or the physiotherapist.
- Medicines that were covered by your deductible.
In addition, you are always entitled to compensation for pain and suffering, also known as non-material damages.
This is compensation for "loss of enjoyment of life." Your damages should compensate you for your grief, pain, and anything else that might have made you less happy than before the accident.
Unfortunately, Dutch law is not generous in awarding damages for pain and suffering. Therefore, the amounts awarded in the Netherlands are not considered "fair enough.".
If you'd like to learn more about non-pecuniary damages, click here . If you'd like to learn more about personal injury damages, click here .
Calculating non-pecuniary damages
Calculating non-pecuniary damages:
You are always entitled to compensation for pain and suffering. This is the "non-pecuniary component" of your personal injury compensation.
What is non-pecuniary damages?
Non-pecuniary damages are not, in themselves, a "hard legal term." They are compensation for damages that cannot be expressed in monetary terms.
So, everything that doesn't fall under additional costs or lost income. It's essentially compensation for your "mental damage.".
How to calculate non-pecuniary damages
People often ask us at the very beginning of their personal injury case how much compensation they are entitled to.
That question is actually impossible to answer. And any personal injury lawyer who claims otherwise is mistaken.
When can you calculate my non-pecuniary damages?
Your compensation for pain and suffering can only be definitively determined at the end of your personal injury case.
Only then will it be known what psychological consequences your injury has had and/or will have for you.
Because it is the psychological consequences that largely determine your compensation for non-pecuniary damages.
Important factors in calculating non-pecuniary damages
Important factors for calculating your non-pecuniary damages include:
- the nature of your injury
- the severity of your injury
- your age
- your gender
- your level of consciousness
- whether you will have permanent scars and where those scars are located
- whether you have physical limitations that affect your quality of life
- how much pain have you suffered and continue to suffer
- how long your recovery period was and
- whether you have recovered at all or whether there is permanent damage.
Indication calculation of non-pecuniary damages:
We cannot predict exactly how much your compensation for non-pecuniary damages will be.
What we can do is give you a general indication of the amount of compensation you will receive.
If this sounds appealing, contact us today for a free, honest consultation . Afterward, you can decide for yourself what to do with it.
We are happy to help you calculate and claim your compensation for pain and suffering and other personal injury damages , such as your additional costs and lost income .
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