Loss of earning capacity single mother, working full-time or part-time, domestic help and painting work, damages and reimbursement of legal costs

Arnhem-Leeuwarden Court of Appeal 5 August 2014

This ruling concerns a nurse who, as a result of a medical error made by Antonius Hospital in Sneek has limited vision in the right eye. The hospital is liable for 60%. The liability is no longer in dispute, but now the issue is the settlement of the personal injury. The parties are divided on loss of earning capacity. The nurse in question indicated that, as a single mother, she would have worked full-time without an accident, even after the birth of her son, who turned out to have an autistic disorder. The Court does not find it plausible that she would have worked full-time in nursing without an accident in addition to her regular and extra care duties (despite enlisting parents and friends in care) but would have done so as soon as possible. The Court assumes that she would have worked 60 % until her son was 4 years old, 80 % until primary school, and would have worked full-time from secondary school onwards. Interestingly, the Court also considers statistical data that relatively many mothers who are single work full-time.

For the reduced vision in the eye, the woman claims €40,000.00 in damages, already taking into account 60 % liability. The hospital's insurer finds 60% of €32,500.00 high enough. The court finds that the woman has substantial limitations, she also already had reduced vision in the other eye. Thus, the medical malpractice left her with additional limitations. Interestingly, the Court of Appeal considered that the amounts of damages awarded in the Netherlands have not risen sufficiently with inflation and are significantly lower than in neighbouring countries, and that the amounts of damages awarded do not do sufficient justice to compensation of the victim's suffering. The Court therefore assumes a damages amount of 60 % of €60,000, i.e. €36,000 plus statutory interest.

Regarding the compensation for domestic help and painting work, the court considers that, in deviation from De Letselschade Raad's Guideline on Self-Employment and Domestic Help, a final age of 75 may be applied instead of 70, based on the significantly increased life expectancy. The out-of-court costs of legal aid are fully eligible for compensation despite liability being recognised for 60 %. This is because there is no fault on the part of the victim and the causal link between costs and fault is established.

Tip: always check statistical data when calculating damages