How to claim for a personal injury in the Netherlands
The idea that you have to go to court to get justice for a personal injury is an illusion. In practice, more than 90% of personal injury claims are actually settled out of court. In this article, Peter van Eijk from GMW lawyers will explain the legal process for an out of court settlement, and the steps you should take to claim for a personal injury.
Definition of a personal injury
In law, personal injury is a term that refers to physical, mental or emotional harm which was done to you as a person (not damage to your property). As such, it covers a wide range of injuries.
For instance, you may have had a whiplash from a car accident, experienced a work-related injury, or been in a shop where you slipped and fell due to something which was spilt on the floor. You may have been attacked by an animal, or suffered harm as a result of a defective product or due to medical malpractice. All of these are examples of personal injuries.
How to make a claim for a personal injury
If you suffered a personal injury, you can claim compensation for the damage that was done to you.
In order to make a claim, the first thing you will need to do is establish who is liable for your injury. Liability is not just about being responsible; it is about being legally accountable too.
How easy this step is will depend largely on the type of personal injury you have suffered. If you need to establish that a medical professional made an error, it could be challenging. However, if you were in a car accident, it may be relatively easy to prove that a traffic rule was violated.
It’s essential to remember that the person who suffered the injury is the one who must prove that damage occurred.
How to determine the damage
After you have established who is liable, the next step is to determine what the damage is that you have suffered and make a formal inventory. This involves defining how the injury caused you harm and quantifying what that harm was (the damage).
This is a very complicated process for which you will need help from specialists. Don’t let this stop you from seeking justice though – you do not need to do all of the work on your own. Your personal injury lawyer can help you find the right specialists, coordinate their findings and make the inventory of damage for you.
If you have suffered physical limitations because of your injury then you may, for example, need to call on a medical specialist to define these. If the injury has affected your work, you may need an actuary to determine how this has affected your earning power. These are examples of material damages.
The other specialist you will need is a personal injury lawyer. Their expertise is essential in this stage to determine the immaterial damage you have suffered as a result of the injury. Immaterial damage is the pain and suffering or grief that you have experienced as a result of your injury, and it can also be included in your claim.
Liability for the costs of making an inventory of damage
Dutch law states that the person who is liable for causing you damage is also liable for any reasonable and proportional costs that are incurred in order to determine that damage. In the example above, this would mean the person who is liable for your injury would also be liable for the cost of the medical specialist, the actuary and the personal injury lawyer who helped to prepare the inventory of the damage.
Settling your claim out of court
When your inventory of damage is complete, you can start to negotiate a settlement. It’s good to know in advance that the other party in the negotiation process may not be the individual person who caused your injury.
You may instead be dealing with a personal injury specialist from the insurance company of the liable person. This is another reason to have a personal injury lawyer involved: your lawyer will use their expertise to protect your interests during negotiations.
In general, the negotiation process will result in an out of court settlement. This settlement will be defined in a determination agreement which your lawyer will present to you for approval. If you have questions about the agreement, your lawyer can answer them, and advise you on what the agreement means for you. If you approve, you can accept the settlement offer and you will not need to go to court.
Settling out of court is often a preferred solution for both parties because it is faster, easier and safer than going to court.
Can’t settle? Take your claim to court
The majority of cases are settled out of court – but if your negotiations fail to deliver a solution, then you can still get justice by taking your claim to the Dutch court.
To take your claim to court, you will need a lawyer to represent you. You may not represent yourself. If you have already enlisted a personal injury lawyer to prepare your statement of damage, then they will already know your case, and can use that knowledge to litigate for you in court proceedings.
Don’t delay – take action as soon as possible
Remember that there is a limit to how long you have to make a claim for a personal injury. This is called the statute of limitations. If you delay too long (beyond the statute of limitations), you will be unable to file a claim.
Consider taking action now to get justice for your injury. Contact a lawyer and discuss your situation with them. With legal advice, you can understand your rights and how strong your case is.
The personal injury team at GMW lawyers offers 10-minute free legal advice to help you make an informed decision about the best way for you to proceed.