BCC.20.010 – What Now? Towards A Future-Oriented Approach in Personal Injury Cases

Route: Between conflict and cooperation

Cluster question: 056 How can we promote peace, security, and cooperation - and address threats and violations - within and between constitutional states and within and between groups and societies?

There has been increasing attention in legal practice and literature in recent years for a new approach to compensation in personal injury law: the ‘what now’ approach. In this approach, recovery of the injured party comes first (‘what now’) instead of questions of causality and comparison with would-be (‘what if’) situations. Instead of attempting to bring the injured party back to the old situation (before the wrong occurred), a ‘what now’ approach involves looking at the injured party’s present capacities in order to determine future-oriented avenues of medical, practical, psychological, emotional and social recovery. Different aspects of the ‘what now’ approach are, however, unclear. For example, there is a lack of a well-defined normative framework for determining what constitutes a ‘what now’ approach and in which way it differs from the traditional approach. For instance, providing for a replacement car and compensating loss of income are examples that can be categorized under the classic approach, while they can (also) be argued to be instances of the ‘what now’ approach. A proper theoretical understanding of the ‘what now’ approach is therefore necessary in order to be able to determine its (positive or objectionable) consequences. Furthermore, questions can be raised regarding what would be necessary for applying or implementing the ‘what now’ approach and what possible obstacles there are to its implementation? If the ‘what now’ approach has positive consequences, it is important to know how the roles (of different actors) and (work) processes need to be defined in order to correctly operationalize it. Finally, and closely related to the question what the ‘what now’ approach really is, is the question what impact it has on outcomes in a personal injury case, that is, the amount of compensation paid, the processing time of the case, and the welfare/well-being of the injured party.

Keywords

damages, insurance, law, personal injury, victims

Submitter

Organisation Maastricht University (UM)
Name Dr. A.D. (Alexandru Daniel) On
E-mail daniel.on@maastrichtuniversity.nl
Website https://www.maastrichtuniversity.nl/daniel.on