In a recent ruling, the Rotterdam District Court ruled in a case concerning personal injury of a 10-year-old boy at the time of the accident. A man who suffered serious head injuries in a playground on his tenth birthday has been given clarity about his loss of earning capacity after 15 years. That is only an item of damage (it concerned a partial dispute).
The case
As a child, the man suffered serious head injuries in a playground of Speelstad Oranje in 2009. As a result, he has permanent problems with, among other things, double vision, memory problems and concentration disorders. Speelstad Oranje’s liability was acknowledged, but the amount of compensation remained a point of discussion for years.
Determining personal injury in children is complex
The liable party must put the injured party in the situation in which the injured party would have been without the accident as much as possible. In order to determine the damage, a comparison must be made between the (hypothetical) situation of the man without the accident and the situation as it is after the accident. This is generally complex because assumptions and presumptions have to be made. How would the man’s life have turned out if he had not had an accident? This question can only be answered with hypotheses. An uncertainty must be filled in for the damage assessment. The damage that has to be determined does not only consist of the damage already suffered, but also the damage that will be suffered in the future as a result of the accident. This also leads to an uncertainty that has to be filled in with a hypothesis: how will the man’s future develop? And what would the man’s future have looked like without the accident? These topics can give rise to a lot of discussion. This is even more complex in the case of children, because there are hardly any reference points to fill in the uncertainties. What education would the child have followed? What kind of work would the child have done later? In the case of an adult in his mid-40s, for example, it is already clear what education has been followed and there is already a work history. This provides (to some extent) starting points to fill in the uncertainties. These reference frames are lacking in the case of young children.
This case also shows a common area of tension in personal injury cases. On the one hand, the injured party does not want to be burdened with years of examinations by experts and does not want to be confronted with the consequences of his limitations over and over again; on the other hand, a careful estimate of the damage must be made that does justice to reality as much as possible.
The man in this case underwent four incriminating medical examinations. An insurance physician investigated what the man’s medical limitations are (now and in the future). An occupational expert investigated what the man’s (im)possibilities are in the labor market (now and in the future). The man underwent these examinations in mutual consultation with the liable insurer, so that on the basis of these examinations, starting points could be formulated to calculate the damage (such as the degree of incapacity for work). After the reports from the experts, the parties jointly commissioned an arithmetician to calculate the loss of earning capacity. The arithmetician arrived at a very considerable amount (more than two million euros).
The insurer took the position that the assessment of the damage should be postponed. At the time of the ruling, the injured party was 25. He was going to complete his education. After that, it would become clearer how he would develop on the labor market. Various uncertainties could be better filled in. The injured party argued that he had undergone the incriminating examinations precisely in order to be able to determine the damage (now) and that it is not appropriate for the insurer to be able to set aside a report that it does not like in order to further fill in uncertainties. Moreover, uncertainties would continue to exist, because even if a new calculation has to be made later, hypothetical situations still have to be assumed.
The ruling
The court ruled in favour of the injured party and followed his position. The insurer is bound by the reports that were drawn up on a joint assignment. The court rejected the insurer’s argument that the assessment of the damage should (still) be postponed, because the longer one waits, the better the uncertainties can be filled in. Uncertainties in the calculation remain, while it had been agreed between the parties that the damage (including its uncertainties) would be assessed with the investigations carried out.
A personal injury case has many more aspects and difficulties than those mentioned above. This concerned a partial dispute, in which only the item of damage loss of earning capacity was submitted. Even with regard to that item of damage alone, more aspects played a role in the ruling than discussed above.
Conclusion
This ruling is an example that obtaining full compensation after an injury is often a lengthy process. Especially in the case of young victims, it is complex to determine how their lives would have turned out without the accident. In addition, it is complex to make a good estimate of how the future will develop in the situation with the accident and how the future would have been without the accident. It is important to have good support from an experienced personal injury lawyer. A personal injury lawyer can help you determine a careful damage estimate.
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