OTC Travel Talks: General Damages in France, Spain and the Netherlands Part Two
Ian Denham is joined by Ana Romero Porro, Thomas Ricard and Gerben Janson in the next instalment of our ‘OTC Travel Talks’ series to discuss the quantification of non-pecuniary, or general damages, in Spain, France and the Netherlands.
Welcome to another episode in the OTC Travel Talks series. Our most recent discussion, hosted by Ian Denham, continues with Ana Romero Porro of Cremades & Calvo Sotelo (Spain), Thomas Ricard of JP Karsenty & Associés (France) and Gerben Janson of Leidse Letselschade Advocaten (the Netherlands). It was divided up into two sections;
- The general approach to compensation in Spain, France and the Netherlands. This can be viewed here.
- Temporary and permanent disability.
Part 2: Compensation for temporary and permanent disability
In part 2, Ana describes the distinction between temporary and permanent injuries in Spanish law. These are any ongoing sequelae after the date of stabilisation. For temporary injuries, there is a scale of compensation based on the degree of impairment suffered. This is quantified on a daily basis. Ana also reminded the audience that there are two Baremo systems, with the most recent applying to accidents from 01.01.2016 Later on, Ana spoke about the importance of the Part 35 medical evidence being obtained with a view to how it would fit with the Baremo.
France maintains a similar system to that of Spain. Thomas focused on awards for permanent functional deficit which compensates for the impact of the disability in the longer term. This is based on a scaled system where the input of a specialist expert is required to assist in the classification of the injury. Whether the English Courts will permit such evidence in domestic proceedings is a matter of debate following Wall v Mutuelle de Poitier.
Thomas was also asked about the process of quantifying damages under French law, with expert evidence gathered under the English procedural scheme. In short, the process is not a straightforward one! Further, Thomas advised that English lawyers litigating claims under French law should have a firm understanding of the damages regime when instructing Part 35 medical experts.
Finally, Gerben explained that, when interpreting Part 35 medical evidence, it was important to have information on the percentage of functional impairment which is not a factor commonly addressed in reports generally. He also highlighted a significant difference between the procedural rules of England and the Netherlands, where it is possible to have a ‘reservation’ made that a claim could return to Court for further damages where the injury deteriorates in the future.
Gerben also spoke about the introduction of bereavement damages finally being introduced in the Netherlands which extend not only to claims involving death but also catastrophic injury.
Thank you to Ana Romero Porro of Cremades & Calvo Sotelo (Spain), Thomas Ricard of JP Karsenty & Associés (France) and Gerben Janson of Leidse Letselschade Advocaten (the Netherlands) for taking part in this discussion.
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Ian Denham is a personal injury practitioner with a particular expertise in matters involving serious and catastrophic injuries, wrongful deaths, clinical negligence and cross-border personal injury claims. His cross-border practice covers advising on jurisdiction, applicable law, direct rights of action against insurers, claims against the MIB, accidents in the air and on sea, and claims involving a cross-border employment aspect. Ian has also advised on the potential implications arising from Brexit.
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