Compensation for pain and suffering is the compensation you receive after an accident for your physical pain, sorrow, and (temporarily) reduced zest for life. Every victim faces this after an accident. That is why you are always entitled to this form of compensation if you are entitled to damage compensation. In this article, we explain how the amount is calculated.
The amount of compensation for pain and suffering differs for everyone
After you have sustained a personal injury, you are entitled to compensation for all the stress, pain, and suffering that happened to you after the accident. Things that of course cannot be cured with money, but offering you compensation for pain and suffering is the least the counterparty can do. “How much compensation can I expect?” you may ask. How is the amount of compensation determined?
In practice, we often receive questions about the amount of compensation that personal injury victims can expect. The answer is usually the same: it depends on your situation. There is no template that applies to every personal injury case. Damage is different for everyone and every personal injury case is unique.
Determining the amount, however, is not a matter of guesswork. We are happy to explain how the amount of this compensation is calculated.
Read more information about claiming compensation for pain and suffering here.
What does the law say about the amount of compensation for pain and suffering?
The allocation of compensation is discussed in Article 6:106 of the Dutch Civil Code:
Paragraph 1:
For harm that does not consist in financial loss, the injured party is entitled to compensation to be determined in fairness:
- if the liable person intended to cause such harm;
- if the injured party has suffered physical injury, has suffered damage to his honor or reputation, or has otherwise suffered personal injury;
[…]
As you can see, the amount of the compensation is to be determined ‘in fairness’. In other words: according to what the court deems appropriate in this specific situation. This gives judges in the Netherlands a lot of freedom; and therefore, there is no real standard.
However, there are a number of factors that are important when calculating the amount of compensation.
Calculating the amount: important factors
When determining the amount of your compensation for pain and suffering, your representative will look at two factors:
- Your personal suffering;
- The case law.
Personal suffering
Since compensation for pain and suffering is a financial compensation for all the suffering, stress, and pain that you have suffered as a result of the accident, the first and foremost consideration is your own situation. How much impact does the damage have on your life? What are you no longer able to do? How does your injury affect your mental health? Specifically, the following factors are considered, among others:
- Your age
- The nature, severity, and duration of the injury
- The duration and nature of the treatments
- The nature of the accident
- The degree of functional disability
- Lost zest for life
Case law for determining the amount of compensation for pain and suffering
In addition to your personal situation, representatives also look at previous judgments of judges in similar cases. This is an important part of determining the amount of compensation. Your representative draws on the Smartengeldgids (a guide for compensation for pain and suffering) for similar cases and uses this to substantiate the amount of the compensation that he or she claims for you.
This gives representatives a framework for determining the amount of compensation. The flip side of this is that they look to the past rather than the future.
Amount of compensation for pain and suffering over the years
The highest amount of compensation for pain and suffering ever granted in the Netherlands has remained at €136,134 for years. This amount was awarded in 1992 to a personal injury victim who contracted HIV as a result of medical negligence.
In 2007, this upper limit was finally broken by a judge who awarded € 150,000 in compensation to a man who suffered serious brain damage after an accident and needed 24-hour care as a result.
However, in 2015 something remarkable happened: in one month, an amount of compensation that was higher than ever before was awarded twice. The first time was in early November when a fireworks victim was awarded € 200,000 in compensation. At the end of the same month, that record was broken: a woman who was told too late that she was in the terminal stage of cervical cancer was awarded a compensation of € 338,000.
At the end of 2020, the highest compensation amount ever (€ 350,000) was awarded to a man who suffered permanent brain damage after being assaulted in his home and left seriously injured. As a result, the victim is expected to remain dependent on intensive nursing, care, and guidance for life.
JB&G considers it a good development that the compensation amounts for pain and suffering are getting higher because the compensation in the Netherlands is far too low. Hopefully, this trend will continue and the amount in the Netherlands will be comparable to that in neighboring countries.
Contact our office without obligation and let’s discuss your options together.
Frequently asked questions from personal injury victims
Q: When am I entitled to compensation for pain and suffering?
A: When you are entitled to damage compensation, you are automatically also entitled to compensation for pain and suffering. This is the compensation for your suffering after an accident. For your pain, sorrow, and (temporarily) reduced zest for life. Every injury victim is entitled to this.
Q: How do I hold the counterparty liable?
A: You hold the counterparty liable by means of a liability letter. You state unequivocally that the other party is liable for your personal injury. This letter should also contain more crucial information. Including that you want to interrupt the statute of limitations of your personal injury case with this act. And that you are entitled to compensation for your pain and suffering. Want to be sure you don’t overlook anything? Then let an experienced lawyer assist you.
Q: What are the costs of legal assistance for claiming compensation for pain and suffering?
A: If you engage our personal injury agency, then our lawyers will claim the compensation for you free of charge. The counterparty’s insurer will reimburse our extrajudicial costs. This is never at the expense of the amount of the compensation. You are entitled to free legal assistance under the Dutch legal system.
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