"How much compensation for pain and suffering will I get?" is the most common question after an injury, and at the same time the one question for which there is no sum to be done. The law does not say how much, but how.
Article 6:106 of the Dutch Civil Code: for loss that does not consist of pecuniary damage, the injured party is entitled to compensation to be determined on the basis of equity, among other things where they have sustained physical injury, have been harmed in their honour or reputation, or have otherwise been affected in their person.
"On the basis of equity" means: weighed against the circumstances of your own case. There is no formula, no table of fixed amounts and no percentage of your income. What there is, is a comparability test, and that is something you can prepare yourself.
Why is there no fixed calculation?
Compensation for pain and suffering does not reimburse costs but suffering: pain, grief, lost enjoyment of life and the loss of what you can no longer do. That cannot be added up like an invoice. Two people with the same medical diagnosis may therefore be awarded very different amounts, because their lives have been affected differently.
What the court does in practice is compare your case with earlier decided cases that are comparable in nature and severity. Those rulings are collected in the ANWB Smartengeldgids, which is used as a guideline in practice. It remains a comparison, not a tariff.
So be wary of amounts found online. Any figure quoted always belongs to a specific case with its own facts. Without those facts it tells you nothing about your case.
What is the comparison based on?
These factors carry weight. Work them out for your own situation; that is the core of your case.
| Factor | What is assessed | What you provide |
|---|---|---|
| Nature and severity of the injury | Which injury, which treatments, which procedures | Medical records, surgical reports, discharge letters |
| Duration | How long did recovery take, and has the final situation been reached? | Treatment records, physiotherapy reports, a statement from your practitioner |
| Permanent limitations | What can you no longer do on a lasting basis, and to what extent? | A functional limitations list and, if needed, an expert report |
| Consequences for work and education | Have you been signed off sick, did you have to change job or course of study? | Occupational health file, correspondence with your employer, study records |
| Consequences for private life | Hobbies, sport, social contacts, family life, self-reliance | Your own description with concrete examples, statements from those close to you |
| Visibility | Scars or disfiguring injury, and where on the body | Dated photographs |
| Psychological consequences | For example anxiety, flashbacks or low mood, medically established | A referral and treatment records from a psychologist or psychiatrist |
| Age | How many years will you carry the consequences with you? | – |
| Circumstances of the incident | The degree of culpability, and how the liable party behaved afterwards | Police report, correspondence |
How to build the comparison
- Describe your situation factually. Not "I can barely do anything any more", but: which specific action no longer works, how often you used to do it, and what you do instead now.
- Substantiate the medical side. Diagnosis, treatments, and the limitations established. Without medical substantiation it remains your word alone.
- Make the difference visible. Set your life before and after the incident side by side on the points that matter to you: work, sport, family, self-reliance.
- Look for comparable cases in the Smartengeldgids, both on the nature and severity of the injury and on the consequences. Note where your case differs, in both directions.
- Build a range, not a single figure. Explain why you come out higher or lower within that range.
Keep a diary while you are recovering: pain, limitations, what you had to cancel, how things are at home. Afterwards that is almost impossible to reconstruct, and it is precisely those concrete examples that give your case weight.
What compensation for pain and suffering is not
Compensation for pain and suffering is one head of loss within your total claim. Do not confuse it with the rest:
- Pecuniary loss covers both the loss suffered and the profit foregone (Article 6:96(1) of the Dutch Civil Code). Think of medical costs, loss of earning capacity, domestic help and travel costs. Reasonable costs of establishing loss and liability, and of obtaining satisfaction out of court, also fall under it (Article 6:96(2)).
- Costs incurred by third parties. Under Article 6:107(1)(a) of the Dutch Civil Code the liable party must also reimburse costs that a third party incurred on your behalf and that you could have claimed yourself.
- Affectieschade (compensation for the grief of close relatives). Where injury is serious and permanent, those close to you can claim, under Article 6:107(1)(b) of the Dutch Civil Code, an amount fixed by government decree for their own grief. The circle of entitled persons is set out in paragraph 2 and includes, among others, the spouse or registered partner and the life partner with whom a joint household is durably maintained. This is the close relative’s own claim, not yours.
Two things that can reduce the amount
Contributory negligence. If the loss is also the result of a circumstance attributable to you, then under Article 6:101 of the Dutch Civil Code the duty to compensate is reduced in proportion to the extent to which the circumstances on each side contributed to the loss. An equity correction may then follow, on account of the differing gravity of the faults committed or other circumstances, which can adjust the apportionment back in your favour.
Attribution. Under Article 6:98 of the Dutch Civil Code only loss that is connected to the event in such a way that, having regard also to the nature of the liability and of the loss, it can be attributed to that event qualifies for compensation. In personal injury cases this is generally applied broadly, but it remains a separate question.
The moment of assessment
Compensation for pain and suffering is preferably assessed once your final medical situation is sufficiently clear. If it is not yet, a final settlement is risky: if it later turns out that the limitations are permanent, a final discharge can usually no longer be undone.
If your case is running long, an advance payment can be requested. That is customary and does not stand in the way of a later final assessment, as long as it is recorded in writing.
Mind the limitation period: in personal injury cases the claim becomes time-barred under Article 3:310(5) of the Dutch Civil Code after five years from the day following the one on which you became aware of both the loss and the liable person. No absolute twenty-year period applies, provided the event took place on or after 1 February 2004. See limitation in medical liability cases for how it is interrupted.
Tax and benefits: watch this one point
The payment itself is not taxed as income. What happens to it afterwards does deserve attention, because as soon as the money is in your account it is an asset. That can have an effect in box 3 and, more importantly for many people, on your benefits.
The special-assets rule. For housing benefit, healthcare benefit and the child budget you can ask for certain assets to be left out of account. For personal injury compensation there is a cut-off date:
- Was the amount of the personal injury compensation determined before 11 October 2010, then the compensation can be left out of account as an asset.
- Was it determined on or after 11 October 2010, then the payment does in principle count. But: if part of it is designated as compensation for pain and suffering, you can ask for precisely that part not to be counted as an asset.
That is a reason to name compensation for pain and suffering separately in the settlement agreement. If only a total amount is stated, it is hard to show afterwards which part was for pain and suffering. So have the heads of loss itemised: financial loss and non-financial loss separately, with amounts.
How to apply. With the form Verzoek bijzonder vermogen toeslagen (request for special assets to be disregarded for benefits) or by letter. You have five years to do so, counted from the end of the year the request relates to. The condition is that you applied for benefit for that year. You only have to declare the special assets once.
Amounts, thresholds and rates in box 3 change every year. Check your own situation with the Belastingdienst or get help from a tax adviser; we do not give tax advice here.
Further reading
If it concerns neck complaints after a collision, see whiplash after a collision. If the person responsible is unknown or uninsured, see the Waarborgfonds Motorverkeer. If it concerns a medical error, see misdiagnosis or a medical error at the dentist or oral surgeon.
On costs we make a written agreement in advance. If liability is admitted, the reasonable costs of legal assistance are in principle borne by the liable party under Article 6:96 of the Dutch Civil Code; whether that works out that way in your case depends on the admission and the size of the claim, and we cannot promise it in advance.
Would you like to know what a realistic range is in your situation? Contact us without obligation and keep your medical records and your own description of the consequences to hand.
Frequently asked questions
Is there a formula for calculating compensation for pain and suffering?
No. Article 6:106 of the Dutch Civil Code provides that it concerns compensation to be determined on the basis of equity for loss that does not consist of pecuniary damage. So there is no formula, no fixed table and no percentage of your income. In practice your case is compared with earlier decided cases that are comparable in nature and severity, for which the Smartengeldgids serves as a guideline. Two people with the same diagnosis may therefore be awarded different amounts, because the consequences for their lives differ. Be careful, then, with figures quoted online: they belong to a specific case with its own facts.
Which factors determine the amount?
Among others: the nature and severity of the injury, the length of recovery, permanent limitations, the consequences for work or education, the consequences for your private life such as sport, hobbies and self-reliance, visible injury such as scars, medically established psychological consequences, your age, and the circumstances of the incident including the degree of culpability. Work those points out factually with concrete examples and support them with medical records; that is the core of your case. Keeping a diary during recovery helps enormously.
When is compensation for pain and suffering assessed?
Preferably only once your final medical situation is sufficiently clear. If it is not yet, a final settlement with a final discharge is risky: if it later turns out the limitations are permanent, you can usually no longer go back on it. If your case is running long, an advance payment can be requested; that is customary and does not stand in the way of a later final assessment, provided it is recorded in writing. In the meantime, mind the five-year limitation period for personal injury.
Can those close to me also receive compensation?
Where the injury is serious and permanent, yes. Article 6:107(1)(b) of the Dutch Civil Code gives certain close relatives a right to an amount fixed by government decree for loss that does not consist of pecuniary damage: so-called affectieschade. The circle of entitled persons is set out in paragraph 2 and includes, among others, the spouse or registered partner and the life partner with whom a joint household is durably maintained. That is the close relative’s own claim and is separate from your compensation for pain and suffering. In addition, costs a third party incurred on your behalf can be reimbursed under paragraph 1(a).
Why do comparable injuries not always yield the same amount?
Because compensation for pain and suffering does not reimburse costs but suffering, and under Article 6:106 of the Dutch Civil Code that is assessed on the basis of equity, in the light of the circumstances of your case. Two people with the same medical diagnosis may therefore be awarded very different amounts: what counts is how their lives have been affected. A permanent hand limitation works out differently for an instrument maker than for someone whose work is mainly desk-based. The length of recovery, age, visible injury, psychological consequences and the circumstances of the incident all carry weight too. The comparison with earlier cases is therefore a comparison, not a tariff.
Do I have to pay tax on compensation for pain and suffering?
The payment itself is not taxed as income. But as soon as the amount is in your account it is an asset, and that can count in box 3 and towards your benefits. For housing benefit, healthcare benefit and the child budget there is a special-assets rule: if the amount of the personal injury compensation was determined before 11 October 2010, it can be left out of account; if that happened on or after that date, the payment does in principle count, but you can ask for the part designated as compensation for pain and suffering not to be counted. So have that part named separately in the settlement agreement. You have five years to make the request, counted from the end of the year it relates to, provided you applied for benefit for that year. Check your own situation with the Belastingdienst.
