Damages

Dutch compensation law involves the calculation of losses or damages as well as the definition which loss or damage has to be compensated. Under Dutch law, both compensation for financial losses and emotional injury are possible. The basic principle is full compensation for all suffered damages and/or losses. Compensation has to result in bringing the harmed back in the same financial position as before the event that has caused the damage or loss as much as possible. Calculation of damages or losses can be complicated.

In the Netherlands, the principle of calculation of damages requires a comparison between the financial position of the aggrieved party with the event that has caused the damages or loss and the financial position of this party without this event. The amount of the claim is the value of the decrease in this financial position. If an injured person has also benefitted from this event, the benefit has to be subtracted from this amount, as far as this is reasonable. This principle is known as “Offsetting benefits”. When the damage or loss is also caused by circumstances which are attributable to the injured person himself, then the amount of the claim can be proportionally  reduced. This principle is known as “Own fault of the injured person”.

A causal connection is required between the event that has established the liability and the damage or loss. Liability only exists in case the damage or loss would not have occurred but for such act of breach. This is also known as the “conditio sine qua non” rule.

The damage or loss must be in a reasonable connection with, and not too remote from, the event that has established the liability.  This is known as “reasonable attribution”. According to Dutch law, particularly the nature of the liability and of the damage caused are relevant in this respect.

Damages or losses can be calculated in a concrete and abstract manner. In the Netherlands, in most cases a concrete calculation of damages takes place in which all circumstances are taken  into consideration.  Dutch law and jurisprudence sometimes prescribes an abstract manner of damage calculation in which the calculation abstracts from some circumstances . For example, property damage is normally calculated in an abstract manner and  based on the objective repair costs, with or  without any actual repair of the property or material.  Furthermore,  the injured cannot claim compensation in case an insurer has already compensated for the damage. This is because compensation in these circumstances would bring the injured in a better financial position compared to the situation without the event that has caused the damage or loss.

Concurrence of causes, successive events and different types of damages can complicate calculation of damages.

For questions about compensation law, please contact LLM Rens Kloppenburg, LLM Niels van Steijn and LLM Frans Kloppenburg. Please visit our office in Leiden in the Netherlands for an (informal) meeting with one of the lawyers.