Damages & compensation claims

Damages & compensation claims

The law does not provide a clear definition of the concept of damage. It is generally accepted that damage encompasses both material and non-material damage. Non-material damage is eligible for compensation only in special situations, for example in the case of serious physical or mental injury. Moreover, assessing non-material damage proves to be very complicated in practice.

Material damage has two distinct forms, namely property damage and pure financial loss. Property damage is the most common form of damage. Property damage is simply the physical damage to a product (object), such as a car or a telephone. Compensation for property damage usually consists of the repair or replacement of the damaged object. Pure financial loss is monetary loss that is not related to personal injury or property damage. An example of pure financial loss is consequential damage. Consequential damage is damage caused by, for example, an error by a notary or by the late delivery of goods (delay damage).

We have the knowledge and expertise to assume diverse roles: from advice to dispute resolution. We have an experienced team of lawyers and legal experts in the field of liability law. Contact us to discuss the possibilities.

When can you claim compensation?

You cannot simply recover damages: there must first be a legal basis. In practice, a claim for damages almost always follows one of two routes. The first is a breach of contract (Article 6:74 of the Dutch Civil Code). The second is a tort (Article 6:162 of the Dutch Civil Code). In both cases, the basic principle is that each party bears its own damage, unless you can demonstrate that another party is liable for it.

For a successful claim, you must generally substantiate four elements: an attributable error or failure, actual damage suffered, a causal link between that error and the damage, and (in the case of a tort) that the violated norm was intended to protect against the damage you are suffering (the relativity requirement). If any of these elements are missing, the claim will fail. We assess your case in advance on all four points, whether you are an international group or the baker on the corner.

How is the damage assessed?

The fundamental principle of the law of damages is that the injured party is placed, as far as possible, in the position he would have been in had the damage-causing event not occurred. According to Article 6:96 of the Dutch Civil Code, pecuniary damage comprises both the loss suffered and the lost profit. Pursuant to Article 6:97 of the Dutch Civil Code, the judge has the discretion to assess the damage in the manner most consistent with its nature, and may estimate the damage when the exact extent is not established.

A distinction is made between concrete and abstract damage assessment. Concrete assessment focuses on the actual damage suffered in your specific situation. Abstract assessment, on the other hand, abstracts from the special circumstances; a well-known example is property damage to a vehicle, which is typically determined via a fixed valuation system, regardless of whether you actually have the vehicle repaired. Which method proves most favorable varies from case to case. The right choice and substantiation can significantly increase or decrease a claim.

Causal link and attribution

Not all damage related to an error qualifies for compensation. Pursuant to Article 6:98 of the Dutch Civil Code, only damage is compensated that is so closely related to the event that it can be attributed to the liable party as a consequence of that event, taking into account the nature of the liability and the damage. The more remote the consequence, the more difficult the attribution. Consequential damage and lost revenue are legally recoverable, but require careful substantiation of the link between the error and the consequence. We build that causal chain with you, using evidence and, where necessary, expert reports.

Contributory negligence, mitigation of damages, and offsetting of benefits

The amount of compensation payable is limited by a number of adjustments. If the injured party has personally contributed to the occurrence or extent of the damage, the compensation may be reduced pursuant to Article 6:101 of the Dutch Civil Code (contributory negligence). In addition, the injured party has a duty to mitigate damages: you must take reasonable measures to prevent the damage from escalating unnecessarily. Finally, Article 6:100 of the Dutch Civil Code stipulates that any benefit enjoyed by the injured party as a result of the same event (attribution of benefit), insofar as it is reasonable, shall be deducted from the damages. For the liable party, these legal doctrines offer a distinct defense; we employ them from both sides of the table.

Pain and suffering and non-material damage

In addition to pecuniary damage, non-pecuniary damage (pain and suffering) may also be claimed in special cases. Article 6:106 of the Dutch Civil Code provides a limited basis for this: inter alia, in cases of intent to cause harm, physical or mental injury, and violation of personal rights. Moreover, in the event of injury or death, the special provisions of Articles 6:107 and 6:108 of the Dutch Civil Code apply to damage suffered by next of kin and surviving relatives. The assessment of pain and suffering is by its nature an estimation and is determined in part on the basis of comparable judgments.

Statutory interest, extrajudicial costs and statute of limitations

Statutory interest is due on compensation from the moment of default, pursuant to Article 6:119 of the Dutch Civil Code; in the case of commercial contracts, the higher commercial interest rate of Article 6:119a of the Dutch Civil Code applies. Reasonable costs incurred in determining damage and liability and in obtaining satisfaction out of court are also eligible for reimbursement pursuant to Article 6:96 of the Dutch Civil Code. Note the statute of limitations: pursuant to Article 3:310 of the Dutch Civil Code, a legal claim for compensation generally lapses after five years from the date the injured party became aware of the damage and the liable person, with an absolute term of twenty years. Timely interruption prevents a claim from expiring.

Holding liable and the damages assessment procedure

Recovering damages almost always begins with a substantiated notice of liability, preceded, if necessary, by a notice of default to place the opposing party in default. If consultation does not yield a solution, the claim may be submitted to the court. If liability has been established but the amount of damages cannot yet be calculated, the court may order compensation “to be determined by assessment”: in a separate damages assessment procedure (Articles 612 to 615 of the Code of Civil Procedure), the extent is then determined retrospectively. In this way, you safeguard your rights without the discussion regarding the exact amount delaying the case.

Recovering damages with MKB Juristen

A claim for damages stands or falls on a solid legal basis, a conclusive causal chain, and a well-substantiated assessment of damages. Our mixed teams of lawyers and in-house counsel guide you in building and collecting your claim, as well as conducting a defense when you are sued yourself. We do this for clients ranging from international corporations to the baker on the corner. This page is part of our Liability, Damages, and Insurance; our specialists are also ready to assist you with the overarching route to insurance coverage via liability insurance .