Pain and Suffering Compensation and Future Quality of Life
Discounting good and bad chances extends to non-material damage, such as pain and suffering compensation. Here, it is weighed whether the victim would also have suffered limitations without the accident, for example due to hereditary conditions. Article 6:106 of the Dutch Civil Code forms the basis for non-pecuniary damage.
The Supreme Court in judgment HR 20 December 2019 (ECLI:NL:HR:2019:1960) ruled that judges must make probabilistic assessments in cases of psychological injuries. A 70% chance of depression independent of the accident reduces the pain and suffering compensation.
Practical Examples
In whiplash claims, it is often argued that complaints are temporary (good chance), which lowers the compensation. Victims collect diaries and witness statements to prove causation. Insurers use the 'ANWB Pain and Suffering Guide' with adjusted amounts.
This method balances justice, but requires multidisciplinary expertise for accurate prognoses.