If you have been injured (for example by a car accident, an accident at work or a medical mistake) and want to have compensation for the resulting damage, the other person must be liable for that personal injury. The other person is usually insured for such damage. Costs to establish liability and damage The attorney’s costs you incur to have the liability and damage assessed must be (if reasonable) reimbursed by the liable party as soon as his liability is established. In that case, assistance from a lawyer will cost you (almost) nothing. Partial dispute There is an exception to this, however. The costs you incur for your lawyer in the context of legal proceedings, which usually take a long time, are eligible for limited reimbursement. An exception to this is the so-called partial dispute, in which the full attorney’s fees are usually reimbursed and a partial decision is taken reasonably quickly. This partial dispute was created especially for personal injury cases. Personal injury cases are almost always settled without the involvement of a judge. More about partial dispute Recognition or determination of liability The first step is therefore to hold the person responsible for the damage you suffered. However, this does not yet establish liability. Often the other person will forward the liability claim to his insurer. That insurer will then state whether its insured person is liable in its opinion. The insurer can recognize the liability that establishes it, but also reject it or only partially recognize it. If the liability is not recognized or only partial, the court can determine the liability. It should be borne in mind that there are different types of liabilities. Sometimes to your advantage, other times to your disadvantage. Liability established in whole or in part If the liability of the other party is established, you are entitled to compensation for all damage resulting from this. If the liability is only partly established (it is your own fault), you are also entitled to part of the compensation for your damage. As long as liability has not been established, you are not entitled to compensation for your damage. Slow recognition of liability Because the establishment of liability usually has major financial consequences for the insurer, it will usually not just recognize the liability. Moreover, experience shows that if one waits long enough to recognize liability and compensate for damage, the person who has suffered damage will ultimately agree to compensation for only part of the damage. The knife then cuts both ways for the insurer. She does not have to pay immediately and if she does have to pay, then she only has to pay part (percentage) of the damage. The insurer also knows that the costs of legal proceedings are only reimbursed to a very limited extent. Litigation over liability The alternative is to initiate legal proceedings against the insurer to have the Court determine the liability. As mentioned, litigation can be expensive and rarely saves time. Moreover, you often litigate against the insurer. And this insurer has enough money for a long procedure with expensive lawyers, where all the snails are put on salt. Despite the fact that negotiations with the insurer about liability take (too) often (much too) long, litigation is not always an alternative. Sometimes, however, you cannot escape it. If the negotiations get stuck on one or two points, a partial dispute can offer solace. Another option is to submit a complaint to the KiFiD. More about complaining to the KiFiD When the liability has been acknowledged or established When then (sometimes finally) the liability (or part thereof) has been established, it must be determined which damage is eligible for compensation. The legal concept of damage is often not the same as what a victim thinks of when it comes to damage. In addition, the victim must prove what damage is the result of the liability. However, it is often clear to everyone – and therefore also to the insurer – that there is damage. In such cases, you can receive advance payments on your damage from the insurer. The amount of your compensation The damage resulting from the liable event depends on so many legal and factual aspects that every personal injury case is tailor-made. Damage you experience is sometimes not eligible for compensation. On the other hand, you may have suffered damage while you are completely unaware of it. The latter is often the case with damage that depends on future events. Not
We assess whether you are entitled to compensation. This is the case more often than you think.
Whether someone is liable for the damage of another depends on the circumstances of the case. If you are bitten by a pit bull in the street, it is not the same by law as if that same pit bull bites a burglar at night. If you have a collision while delivering a package for your employer, that is not the same by law as having a collision outside working hours. Different liabilities The law contains different types of liabilities. In general, there may be normal liability or risk liability (for example for animals, defective goods and dangerous substances). In the latter case, liability is more rapid than in the former. As an “intermediate type” there is the special liability that offers extra protection to, for example, cyclists and pedestrians in traffic or employees in the workplace. Responsible by doing, but also by failure To be liable, someone does not always have to do something. Liability can also be the result of an “omission”. Sometimes there may even be liability because a certain risk has been accepted. For example, an employer has failed to properly instruct his staff with regard to certain risks in the workplace. Petra Thie Lawyer in Hellevoetsluis – Personal injury specialist – member LSA – tel. 0181-335 520
In the case of personal injury or compensation, people often think of ‘American’ amounts. However, the Dutch legal system measures with different measures. The “American” System In the American system, most of a personal injury claim usually consists of some sort of fine. This fine is called “punitive damage”. The idea behind this claim is, among other things, that the safety of citizens should not depend on the economic considerations of a producer. The amount assigned as punitive damage is often based on that company’s revenue (and 1% of a multinational’s revenue is a lot of money!). For this damage component, a link is also sought with the costs that that company should have incurred to prevent the unsafe situation. For example, a particular car manufacturer knew that the gas tank of a particular car could explode. The manufacturer then calculated the average cost of an explosion and how often such an explosion would occur. Doing nothing turned out to be cheaper than recalling all cars and remedying the cause. The manufacturer decided not to do anything and to wait for the damage claims. They came. The court awarded damages to one victim equal to the cost of recalling all the cars. The manufacturer was also ordered to recall all cars. The Dutch system We do not know this system in the Netherlands. In the Netherlands, the starting point is that only damage that is a direct result of the damage-causing incident is eligible for compensation. The definition of damage is then “financial damage and other disadvantage”. In itself that sounds logical and plausible. But if the calculation of a death claim takes into account the fact that the deceased no longer has any costs for his food and the widow therefore has a financial ‘advantage’, then you will understand that sometimes it is not easy for a client’s legal position explain. On the other hand, financial loss in the Netherlands does include the reasonable costs for acquisition out of court (for example, the attorney’s fees up to the time of summons), the reasonable costs for establishing liability (for example, the costs of the medical specialist) and the reasonable costs. to determine the damage (for example the costs of the actuarial calculator and the medical advisor). In short: you are not alone. The costs of your professional advisers are reimbursed. Petra Thie Lawyer in Hellevoetsluis -Specialist personal injury – member LSA – tel. 0181-335 520
Unlike other types of cases, the first meeting in your personal injury case is always exploratory and free. After all, you already have enough on your mind. Costs in personal injury cases In the case of a personal injury case, your counterparty is usually an insurance company. If liability has been recognized in your personal injury case, that counterparty will pay your attorney’s fees (to the extent deemed reasonable). In other words: contrary to “no cure no pay”, engaging a personal injury lawyer is generally free for you. This also applies to the engagement of our medical advisor. No cure no pay As mentioned, the costs you incur (for example for a lawyer) to determine liability and damage (if reasonable) are eligible for compensation by the insurer, if and as soon as the liability has been established. The compensation that the insurer pays you for your other damage is therefore fully for you. In the event that you have to pay a percentage of your compensation – often under the motto ‘no cure, no pay’ – to your advisor for the settlement of your personal injury claim while there is no litigation, you are therefore paying too much. If these costs were reasonable, the other party would have to pay them to your advisor. Not you! Costs If you have any questions about the costs of your personal injury case after reading this page, please do not hesitate to contact us. Our employees are happy to provide you with clear prior information. Petra Thie Lawyer in Hellevoetsluis -Specialist personal injury – member LSA – tel. 0181-335 520