Vaststelling van smartengeld

Abstract

The object of the study concerns the assessment of non-pecuniary damages (pain and suffering). Non-pecuniary damage cannot be computed in any way whatsoever. The law meanwhile demands rulings on non-pecuniary damages to be consistent although no two cases are (entirely) the same. The author would prefer a court faced with the issue of the extent of the actual non-pecuniary damage to focus on the amounts in non-pecuniary damage laid down in a Judge-made regulation, the product of judicial cooperation or coordination. The author understands coordination to mean any activity geared towards harmonizing the judicial and/or extrajudicial determination of non-pecuniary damages. A judge-made regulation could avert the risk of incoherence between court rulings and inefficiency. A risk that lies both in the inherent arbitrariness attached to the translation of non-pecuniary damage into financial compensation for such damage, and in the related risk of arbitrariness that is imminent as the legislator the Supreme Court and the Courts of Appeal give few directions about the desirable amounts and method of determination of non-pecuniary damages by other courts.