The idea that personal injury claims are often settled through court procedures is an illusion. The reality is that in the Netherlands the vast majority – probably more than 90% – of personal injury law cases are actually settled out of court.
An out of court settlement offers multiple advantages: it is faster, easier, cheaper and less risky for both parties than going through a court procedure. In this article we discuss the (legal) process when determining the claim and settling out of court.
Who is liable?
The first step that must be taken is that of establishing liability for the injury.
In the event of occupational accidents and traffic accidents, this is often fairly easy to establish if there is a violation of the duty of care or of a traffic rule. On the other hand, professional errors of doctors are more difficult to establish, and then it must be demonstrated that the individual has not acted as befits a good physician.
No matter the cause, the fact remains that the person who suffers damage must prove the damage.
What is the damage?
Once liability is established, then an inventory of the damage related to the accident can be compiled.
Determining the damage is a very complicated process. The help and intervention of various specialists is necessary for this: a medical advisor shows the physical limitations, an actuary determines the loss of earning power and, when determining the immaterial damage (compensation for pain and suffering), case law should be consulted from similar cases. It is the lawyer who coordinates all these findings and makes a claim in consultation with the client.
Who pays the cost of the specialists?
According to Dutch law, the liable party is obliged to compensate the victim for the costs of determining the damage.
Therefore the costs for a lawyer, actuary, medical advisor and medical information, insofar as they are reasonable and in proportion to the damage, must be reimbursed by the liable party.
What happens next?
After the inventory of damage has been compiled, negotiations with the other party (such as the insurer of the liable party) will follow. This may mean dealing with a personal injury specialist who is representing the insurance company and their interests. In such a circumstance, it is of the utmost importance that the injured party also has a lawyer who will represent them and protect their interests.
Through the negotiation process, in most cases the parties will usually reach an amicable settlement. This arrangement is determined by both parties in a determination agreement with a corresponding tax guarantee. Your lawyer will always present the settlement offer to you for your approval. Once agreed, the settlement offer can be accepted.
What if we cannot negotiate an out of court settlement?
In the unlikely event that a settlement cannot be reached through negotiation, then a court will have to decide on the claim. You will then require a lawyer to represent you in court, as well as to provide specialist legal knowledge.
If you have already started your case as described above, then by this stage you will already have a lawyer who knows your case and can litigate for you, as well as an inventory of damage prepared.
Have you suffered a personal injury?
Don’t let your fears stop you from holding the perpetrator responsible for their actions. Get in touch with a personal injury lawyer and discuss your case with them.
If you need guidance, we can help you achieve the best possible solution for your personal injury case.
Peter van Eijk has been practising as a lawyer for 25 years, specialising in compensation, liability claims and personal injury cases. He represents clients who have suffered accidents at work, in traffic, and as a result of criminal acts and defective products. He also handles claims against the government, airlines and financial institutions, and advises professionals suffering from post-traumatic stress disorder (PTSD).
In a well-known case, when an American air force aircraft flew into the wires of a cable car in the Dolomites, Peter supported the family of one of the victims. The compensation payment in that case is still one of the highest ever in the Netherlands.
Peter knows that in a compensation claim, clients need more than just trusted legal advice to face a dispute with a determined counter party. That’s why he has a team of trusted and expert medical advisors, employment consultants and financial specialists who can support his clients in their cases.
Peter’s goal is to achieve redress for his client. He tries to get the best possible amicable settlement to avoid delays in the claim settlement process – but if this is not possible, Peter will not hesitate to achieve that goal via legal proceedings.