"Judges get a lot of freedom when it comes to the damage assessment"
On 27 June 2019, Marnix Hebly LL.M. will defend his dissertation "Damage assessment and time" at Erasmus University Rotterdam. Compensation is intended to put the injured party in the position he would have been in without the event for which the other party is liable. However, the event can be the cause of all kinds of factual developments that gradually unfold with the passage of time. Hebly's dissertation deals with the role of the time factor in determining damages.
In his dissertation, Hebly addresses a number of key questions: which facts and circumstances should the court take into account when determining damage, what time should be considered decisive for his judgment, and how does all this relate to other doctrines of compensation law (causality, benefit allocation, statutory interest, etc.)?
A current example offers the claims for damages due to the depreciation of houses in connection with earthquakes as a result of years of gas extraction in Groningen, without physical damage to the house and without the house being sold at a lower selling price: is there legal damage? And if so, when does the damage 'fall' and at what time should it be assessed?
Judges are given considerable freedom when it comes to the damage assessment, because they have to make all kinds of estimates on uncertain points.
“Judges are given considerable freedom when it comes to the damage budget because they have to make all kinds of estimates on uncertain points. But they are regularly confronted with fundamental questions, such as when to speak of damage within the meaning of the law, and which moment is decisive for the damage assessment. For the calculation of the compensation, it can be important which facts and circumstances should and should not be taken into account. It is not uncommon for large financial interests to be at stake here.”
Hebly's dissertation contains an analysis of the time element in the compensation law on a principle and conceptual level. In addition, there is examined how the concepts and doctrines discussed relate to the time factor. This is followed by a series of sub-studies in five main areas: property damage, personal injury, loss of profit, investment damage and damage due to legitimate government action (expropriation and plan damage). An important question is how the time factor plays a role in determining damage in the relevant sub-area.
The common thread in the dissertation is that a logical-chronological structure is embedded in the system of compensation law, in which the legal concept of damage plays a supporting role. Hebly's analysis shows how various time-related problems in compensation law can ultimately be solved by outlining the content of the legal concept of damage as precisely as possible.
“Imagine: a factory cannot expand due to a lack of delivery of the land. As a result, the entrepreneur can be considerably disadvantaged. The question is how the lawyer should look at this. Business economists often look at reducing the economic value of the company as such; a disadvantage that immediately occurs. In doing so, they use an immediate "reference point", and the damage is then determined from the outset. In my opinion, however, the lawyer will always have to look at what profit is missing in the period after the event. The damage then enters part by part with the passage of time. That results in a damage estimate with knowledge afterwards. It partly remains a hypothetical story, but later developments can learn something about how the company would probably have fared without the mistake. The underlying legal issue always is : what exactly is the damage that qualifies for compensation? Confusion and discussion are lurking on this point, and lawyers must make consistent choices.”