Personal Injury in the Netherlands
Is individualisation or claims handling compatible with standardisation?
The Netherlands has a non-standardised way of handling personal injury claims based on liability law. This often leads to uncertainty and escalation. The question is whether standardisation of personal injury treatment leads to more positive effects and can be combined with the individual approach that is customary in the Netherlands. Professor of Comparative Private Law and Economics Michael Faure – also a speaker at the CED CBC webinar – conducted this research last year on behalf of the Dutch Association of Insurers. A brief outline of analysis and conclusions.
Despite legislative changes, research, and a code of conduct, there is still discussion and dissatisfaction in the Netherlands about the handling and compensation of personal injury claims. There is no standard for compensatory amounts. As a result, the amount of compensation is often unexplainable and seems to be determined instead by the effectiveness and tenacity of a lawyer. It is impossible to explain to victims why in the case of – apparently comparable injuries – one victim receives a different compensation than another. That makes it difficult for them to accept a particular outcome. This same uncertainty and unpredictability of the outcome affect liability insurers. Due to the lack of standards and transparency, a settlement is often less possible, and in many cases, the settlement escalates into a legal conflict. For the victim, this leads to a delay in recovery or, worse, to aggravation of (mental) health complaints.
More transparency, less conflict
Faure's research, therefore, poses the question of whether a method of norming and standardisation could be introduced in the Netherlands that simultaneously takes the individual situation of a victim into account? Such a system would provide more predictability and transparency and provide good support to all professionals. Furthermore, clarity about the number of specific fees would make settlement less conflicting because there is less room for contradiction and differences of interpretation. All of this would also lead to greater satisfaction and greater acceptance among personal injury victims.
Different systems
Several European countries have such a system, but not all countries provide compensation based on liability law. To keep the comparison clean, Faure has limited the comparison to Belgium, Ireland, and Sweden. In Belgium, indicative tables for compensation have been used since 1995, and settlement takes place through a settlement or court. In Ireland, there is also a standardised indication for compensation (Book of Quantum), and the Personal Injury Assessment Board (PIAB) plays a vital role in the settlement. The PIAB first handles personal injury cases; in 60% of the cases, the decision of the PIAB is accepted by both parties and therefore no longer appears in court. Sweden also has a system with tables for specific categories of personal injury. In this country, settlement – like Ireland – occurs through an Alternative Dispute Resolution (ADR), which successfully attempts to reach an agreement between the parties. As a result, there are also relatively few lawsuits in Sweden.
Positive Effects
The three countries show that the settlement of personal injury claims through a system of standardisation of compensation is indeed possible and workable. Application of an indicative table, or standardisation of compensation, leads to more settlements, fewer lawsuits, faster compensation, and lower costs. However, according to Faure, additional studies must be carried out before one can continue implementing such a method in the Netherlands. For example, whether the positive effects in Ireland and Sweden are partly due to the alternative settlement method via PIAB and ADR. The possible consequences of such a method also need to be investigated in relation to current personal injury claims practice in the Netherlands and recent initiatives such as the Code of Conduct for personal injury cases. Faure's conclusion is: 'If such additional investigations were carried out, both a standardisation of personal injury claims and an alternative way of handling personal injury cases would also have a greater chance of success in the Netherlands.'
