Reforming Personal Injury Claims Settlement: Paying More Attention to Emotional Dimension Promotes Victim Recovery

Abstract

The Dutch Ministry of Justice commissioned the VU University Amsterdam to investigate the needs, expectations and experiences of victims and their relatives with regard to the settlement of personal injury losses. This study shows that most victims are concerned with needs of a non-pecuniary nature in addition to financial compensation. Even if the most important reason for taking action is financial in nature, non-pecuniary needs play an important role. Much goes wrong, however, when it comes to meeting those needs. Nevertheless, in contrast to what is often assumed, civil liability law has certain characteristics which actually make it quite suitable for meeting the non-pecuniary needs of victims. This positive potential is not realized, however, due to the fact that the current practice of handling personal injury claims focuses almost exclusively on financial compensation. This is all the more problematic as the failure to meet these non-pecuniary needs is not only experienced as frustrating, but also constitutes an impediment to recovery, while in the field of personal injury the law holds that recovery takes precedence over compensation. The study concludes that by paying insufficient attention to the non-pecuniary needs of claimants, current liability law fails to pursue its own restitutionary goals. This state of affairs calls for reform of the claims settlement process, to which end some tentative suggestions are made.

Keywords: Tort, Personal Injury, Claims settlement, Reform of settlement process, Compensation, Victim recovery, Non-pecuniary needs, Secondary victimization, Procedural Justice, Therapeutic Jurisprudence