Brain injury compensation: TBI, substantial damages and loss of earning capacity

compensation for brain injury if another party is liable for the accident that caused your brain injury — such as a traffic accident, a workplace accident, or medical malpractice. The liable party must then compensate you for your full damages on the basis of unlawful act (Article 6:162 of the Dutch Civil Code). In the case of acquired brain injury (ABI), the damages often involve the highest amounts of compensation available in personal injury cases, because the consequences are permanent and can affect your earning capacity for the rest of your life. Good news: in a recoverable case, the liable insurer also pays your legal assistance costs (Article 6:96 paragraph 2 of the Dutch Civil Code).

The short answer

• What: full compensation for all material and non-material damage resulting from brain injury (ABI), including loss of earning capacity, healthcare costs, and pain and suffering.
• When: as soon as another party is liable for the accident — a collision, a work accident, or medical malpractice.
• How much: no fixed amount. Brain injury often involves the highest compensation amounts because the consequences are permanent and far-reaching. The amount depends on the severity of the limitations.
• Advance payment: in a long-running case, your representative requests an advance payment so that you do not have to wait years for money.
• Costs: nothing in a recoverable case — the costs of legal assistance are recovered from the liable party (Art. 6:96 BW).

What is brain injury (ABI)?

Acquired brain injury (ABI) is brain damage sustained after birth. In the case of personal injury, it usually involves traumatic brain injury: damage caused by a blow or impact to the head, for example in a traffic accident or a fall at work. The severity varies widely, from a concussion with temporary symptoms to severe brain injury resulting in permanent disability.

What makes brain injury so complex is that the consequences are far from always visible. A person may appear fully recovered on the outside, while thinking, memory, or behavior has been permanently altered. It is precisely these “invisible” consequences that are underestimated—by those around them, but sometimes also by insurers. A specialized personal injury lawyer ensures that they do count.

What are the consequences of brain injury?

The consequences of brain injury often affect your entire life. Common examples include:

• Cognitive complaints: problems with memory, concentration, planning, maintaining an overview, and processing information.
• Fatigue: extreme and persistent fatigue that limits work and daily life.
• Changes in behavior and emotion: irritability, a shorter fuse, gloominess, or a changed personality, which also affects your relationships and family.
• Physical complaints: headache, dizziness, problems with vision, hearing or speech, and sometimes paralysis.

These consequences together determine the extent of your damages. The more severely your daily functioning and ability to work are affected, the higher the compensation. Would you like to know what other types of injury exist? View the overview of injury types. If you primarily have psychological complaints without demonstrable brain injury, then psychological injury and non-material damage.

Why is the damage from brain injury often high?

Brain injury is one of the most severe personal injury cases, for a few reasons:

• The consequences are often permanent, so the damage extends far into the future.
• It usually affects your ability to work, which, calculated over a lifetime, leads to large sums.
• Ongoing care and support are often needed, sometimes for life.
• The impact on your personal life and that of your loved ones is significant, which translates into compensation for pain and suffering (Article 6:106 of the Dutch Civil Code).

Due to this combination, the total damages in the event of severe brain injury can amount to very high sums. You can read exactly what you can claim on the compensation.

Loss of earning capacity: the largest item of damage

In the case of brain injury, loss of earning capacity is usually the largest item of damage. By this, we mean the income you miss out on because you can no longer work (fully) due to your injury — now and in the years ahead.

This damage is calculated by comparing two scenarios: how would your income have developed without the accident, and how does it look now with the injury? The difference over your entire remaining career is your loss. In the case of brain injury, this is particularly impactful, because cognitive complaints and fatigue often prevent you from maintaining your old position or working your old number of hours — even if you appear physically “fine.” For freelancers and entrepreneurs, this calculation requires extra care. Read more in our explanation regarding loss of earning capacity and loss of income.

What other damages can you claim?

In addition to loss of earning capacity, the following are taken into account, among others:

• Medical costs and rehabilitation: treatments, aids, and the deductible you incur.
• Care and support: professional care and the help provided by loved ones (informal care).
• Domestic help: the help you need because you can no longer manage the household.
• Adaptations: modifications to your home or transport when necessary due to your injury.
• Pain and suffering: compensation for grief, pain, and loss of enjoyment of life (Article 6:106 of the Dutch Civil Code).
• Future damage: damage that occurs only later, recorded with a reservation so that you are not stuck with an insufficient settlement.

The amount of compensation for pain and suffering depends on the severity and permanence of your injury; you can find more information about this on the pain and suffering.

An advance payment during a long-running case

Brain injury cases often take a long time, because the permanent consequences (the final medical condition) must first be determined. This does not mean that you are left without money for all that time. As soon as liability is established or deemed plausible, your legal representative will request an advance on your compensation from the liable insurer. This allows you to pay ongoing costs and cover loss of income while the case continues. A good personal injury expert ensures that you receive a timely and sufficient advance.

How a personal injury expert helps you with brain injury

Specialized help is particularly important in cases of brain injury, because the damages are complex and substantial. Choose a genuine personal injury firm with demonstrable experience in serious injury; a generalist who handles this “on the side” will quickly miss opportunities. A specialized personal injury lawyer, personal injury attorney, or Registered Expert in Personal Injury (NIVRE):

• establishes the liable party on the basis of unlawful act (Article 6:162 BW) or, in the case of employment, the employer's duty of care (Article 7:658 BW);
• engages an independent medical advisor to objectively document the cognitive and behavioral consequences — which is crucial in the case of “invisible” injury;
• have the loss of earning capacity and future damages calculated properly, so that you don't miss anything;
• applies for advances and negotiates with the insurer on your behalf.

Our specialists are affiliated with the National Quality Mark for Personal Injury and work in accordance with the Code of Conduct for the Handling of Personal Injury Claims of the Personal Injury Council. You can read more about our working methods under About Us.

Honest recommendation

In the event of a brain injury, we almost always recommend engaging a specialist. The damages are substantial and complex, and insurers easily underestimate the invisible consequences — a misjudgment will cost you a great deal of money over a lifetime. Do you only have a mild concussion from which you will fully recover within a few weeks and will not experience any lasting symptoms? Then an extensive personal injury claim process is often unnecessary. If you are in doubt, or if your symptoms persist longer than expected, have it assessed — this can be done free of charge.

Do you want to know where you stand? Schedule a free consultation or request a free intake . Whether you are looking for a personal injury lawyer, a personal injury legal expert, or an experienced personal injury firm: we assess your case free of charge and claim your maximum compensation. You can find the relevant legal articles on wetten.overheid.nl.

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