It follows from the general rule of compensation in full for damages and objective redress that bodily injury is in principle quantified in concreto. As such, the injured party must first and foremost substantiate the damage suffered on the basis of evidence.
However, if a precise evaluation of the damages suffered is not possible, bodily injury may be estimated in abstracto on the basis of lump sum compensation.
In practice, the quantification of bodily injury is often done by means of the Indicative Table.
The Indicative Table consists of non-binding agreements which, as soft law, can provide an indication in a court’s assessment. The Indicative Table deviates from the traditional classification of bodily injury and distinguishes three types of incapacity: personal (extrapatrimonial), economic and household.
Personal incapacity refers to the non-economically quantifiable consequences of the impairment of the injured party’s physical and mental integrity in daily life.
Economic incapacity (also called incapacity for work) consists in the impact of the impairment of the injured party’s physical and mental integrity on the conduct of the latter’s professional life, including impairment of the injured party’s competitiveness on the labour market.
Finally, household incapacity can be defined as the impairment of the injured party’s energetic or functional potential with an economically quantifiable impact on his fitness to perform household tasks, or the need for increased efforts to complete such tasks.
If certain injuries are not covered by any of the above-mentioned heads of loss, they are classed under the heading of special loss. These notably include pain and suffering, damage to appearance, sexual damage and loss of enjoyment.
The evaluation method of the aforementioned loss positions then differs depending on whether the damage falls under temporary incapacity, or rather under permanent incapacity.
Temporary incapacity refers to the damage suffered by the injured party in the period between the claim and the consolidation date (i.e. the date when the injured party is fully healed or the date when the severity of the injury will no longer be subject to change). A medical assessment (amicable or court-ordered) will generally take place in order to evaluate the bodily injury and determine the consolidation date.
The assessment of temporary incapacity – according to the Indicative Table – is made in concreto or on the basis of lump sum compensation.
Thus, in the context of economic incapacity, the injured party will always have to prove the loss of income in concreto. Alternatively, personal and household incapacity will be compensated on the basis of a lump sum amount per day of incapacity at 100 % and, following that, pro rata.
The quantification of permanent incapacity is a technical matter that starts from the consolidation date and is determined according to the varying degrees of incapacity (as set out in connection with the medical assessment).
According to the Indicative Table, permanent incapacity can be evaluated and indemnified in three different ways, i.e. by awarding interest, by capitalisation or by awarding lump sum compensation. It is up to the court to assess the extent of the permanent physical injury as well as the evaluation method and the amount of the damages.
Interest is a type of compensation according to which the injured party receives a monthly or periodic amount for the future and is usually applied in the context of severe permanent incapacity.
Capitalisation is the method of compensation in which the actual bodily injury to be suffered in the future is estimated and indemnified in one lump amount. This method amounts to converting interest into capital for the period for which compensation is due after the court order or amicable settlement. Practice shows that capitalisation is mainly applied in cases of advanced degrees of permanent incapacity.
Lastly, lump sum compensation is the preferred mode of compensation in cases of minor to moderate permanent incapacity. The Indicative Table provides a compensation scheme on the basis of the age of the injured party, which will serve as an initial starting point. These indemnities – which can still be revised in light of the concrete circumstances surrounding the claim – are subsequently multiplied by the coefficient of the percentage of permanent incapacity on the part of the injured party, as determined in the context of the medical assessment.