Hit by a car, then what?

Gijs van Dijck found Observant’s question confronting. “I started to doubt my own motive. Am I really working on academic issues that I find important? Or am I trapped in a system in which subsidies, time and personnel are the determining factors?” It is not so long ago since Van Dijck became a professor and he experienced it as liberating. “I no longer need to jump through other people’s hoops, but I am completely free to choose my own direction. Since then I have taken more adventurous routes, so the conclusion was: yes, I do ask the important questions in my field.” They deal with, among others, how to settle compensation.

An example: imagine a child of eight years’ old becomes paralysed when hit by a car on the footpath. Lawyers then determine the level of compensation and they do so by comparing a life with and without the accident, says Van Dijck. The child will never be able to work, so a lifelong income is part of the compensation. The leading question here is: what if? What if the accident never happened? But is that the right question? Determining the loss of income for an eight-year-old is rather speculative, says Van Dijck.

Another example, a true story: a man ends up in a wheelchair after a collision. He has his own business that he can no longer get to by himself. “Instead of ‘what if,’ the question that arose was: What now? What does this man need? Eventually the house next door to the business was bought so that he could continue to work as he did before. Everyone happy.” This solution stems from what is also known as the recovery-oriented approach.

“This is much more about the needs and preferences of the victim. In addition, it prevents lawyers from squabbling over the level of compensation. It is a practical approach, but it doesn’t fit into the law very well. It is a break with legal concepts that have existed for thousands of years.” The new approach is not undisputed. Those who are against say that it leads to subjectivity. It means that victims are not treated equally. “That is a false argument, because amounts that are currently paid out, are also subjective.” That is why Van Dijck, who carries out empirical research, would like to set up experiments with large insurance companies in the Netherlands. “I would compare the cases in which the recovery approach was applied to the traditional cases. What happens exactly? What solutions are found? What are the victims’ wishes? Are they more satisfied than if they received an amount of money? Such a study has never been carried out.