Compensation for pain and suffering: the Rotterdamse Schaal

On 22 May 2017, a car driver was involved in a traffic accident with a bus operated by Arriva. As the car braked suddenly and the bus was unable to stop in time, the bus collided with the car. As a result of the accident, the driver sustained bodily injuries consisting of whiplash associated symptoms.

Since the accident, the injured party experiences pain and restricted mobility in the neck and shoulders, loss of strength in the right arm and headaches. He also suffers from cognitive complaints, including concentration and memory problems, irritability and fatigue. He experiences significant stress as a result of the accident, partly due to financial difficulties, frustration and loss of enjoyment of life. This has impacted the way he spends his social life and time. He was forced to sell his (self-renovated) house as he was no longer able to maintain it and he can only engage in his hobby of playing hockey to a limited extent.

In an interim judgment, the court held that the bus driver (employed by Arriva) had acted unlawfully by failing to maintain a sufficient distance from the car, as a result of which he was unable to bring the bus to a halt in time when the driver braked. The court also ruled that the injured party had also committed a traffic violation by colliding with the preceding vehicle. This contribution to the occurrence of the accident justified a finding of contributory negligence, leading the court to apportion liability on a 50/50 basis.

This case was heard by the District Court of Limburg in 2026.[1] In subsequent proceedings the question arose not only as to liability but also as to the extent to which the injured party was entitled to compensation for pain and suffering (in Dutch called ‘smartengeld’). A broader legal term for such compensation is general damages.

Before turning to the court’s final assessment of the compensation in this case, we will discuss the Dutch legal framework governing compensation for pain and suffering, and the role played therein by the Rotterdamse Schaal (only available in Dutch).

Legal framework

General damages constitute compensation for non-pecuniary loss, that is harm other than financial loss (Article 6:95 of the Dutch Civil Code (DCC)). General damages serve multiple purposes such as financial compensation, to acknowledge the harm suffered, to ensure the enforcement of legal norms and to prevent similar conduct in the future.  In practice, the compensatory function is predominant. General damages should ease the suffering of the injured party insofar as monetary compensation allows.

Pursuant to Article 6:106 DCC a right to general damages arises in the following circumstances:

A.      if the liable person had the intention of causing such harm; 

B.      if the injured party has suffered bodily injury, has suffered damage to his honour or good name or has           otherwise been affected in his person; 

C.      if the damage lies in damage to the memory of a deceased person and is caused to non-legally                     separated spouses, the registered partner or a relative up to the second degree of the deceased,                   provided that the damage took place in such a way that the deceased, had he or she still been alive,             would have entitled him to compensation for damage to his honour or reputation. 

In practice, bodily injury forms the most important category. The court determines the amount of compensation for pain and suffering ‘in fairness’. This raises the question: what is a fair compensation? This is determined by comparing similar cases.

From the Smartengeldgids to the Rotterdamse Schaal

For a long time, the Smartengeldgids (the Compensation for Pain and Suffering Guidebook) has been used as a reference to determine the amount of compensation for pain and suffering. The Smartengeldgids is a publication containing summaries of Dutch court judgments in which compensation for a wide variety of injuries have been awarded. The disadvantage of this method is that in practice it has proven difficult to compare individual cases with judgments included in the Smartengeldgids. This is because courts tend to attach significant weight to additional circumstances, such as the victim’s social environment and the manner in which the injury was presented. In addition, considerable differences exist between the approaches taken in civil and criminal proceedings. This led to a need for greater uniformity and consequently greater legal certainty.   

That’s why the Rotterdamse Schaal was introduced in September 2025. Inspired by the English and Irish Guidelines for the Assessment of General Damages in Personal Injury Cases, the Rotterdamse Schaal provides a structured framework for assessing compensation for pain and suffering in cases of bodily injury and other infringement of one's person. Within the Rotterdamse Schaal compensation for pain and suffering is catalogued according to the nature and severity of the injury or violation of standards.

Following the English and Irish Guidelines the Dutch judiciary established its own working group to formulate Recommendations (only available in Dutch) for the calculation of compensation for pain and suffering. These Recommendations focus in particular on the use of the Rotterdamse Schaal in case law. A further discussion of those Recommendations falls beyond the scope of this blog. Although both the Rotterdamse Schaal and the Recommendations have no binding legal force, it has been applied in case law as of 1 January 2026.

The nature of the violation of standards concerns the extent to which the violation is directed against the person or directly affects him. The severity of the violation of standards may involve factors such as the nature of the liability and the degree of fault, as well as the duration and frequency of the infringement.

The Rotterdamse Schaal distinguishes three categories:

A.      bodily injury

B.      (objectively established) psychiatric injury

C.     compensation for pain and suffering unrelated to (proven) injury (generally associated with criminal offences)

For each category, the Rotterdamse Schaal indicates a range within which the court may determine an appropriate amount. 

Back to the present case

Returning to the case at hand, the court took the Rotterdamse Schaal into account when assessing the amount of compensation for pain and suffering and ultimately held that Arriva is required to pay the injured party EUR 20,000.

The court first considered comparable cases listed in the Smartengeldgids, in which the awarded compensation  ranged from EUR 6,201 to EUR 35,444. The court then refers to the Rotterdamse Schaal in conjunction with the Recommendations for the Assessment of General Damages pursuant to Article 6:106 DCC. Paragraph 5.2 of the Rotterdamse Schaal addresses the relevant factors for assessing the quantum of compensation for pain and suffering in cases of Whiplash Associated Disorder. The court has classified the injury as a severe case, given that the claimant suffers documented physical and mental symptoms, is permanently (partially) unable to work, and experiences considerable limitations in his daily life. For this category the indicative range of compensation for pain and suffering is EUR 10,000 to EUR 25,000.

The court considered an amount of EUR 25,000 to be appropriate in this case. Due to contributory negligence of the claimant a reduction of 50% was applied, resulting in an amount of EUR 12,500. However because of Arriva’s conduct in this case the court saw ground to increase the amount to EUR 20,000. Amongst others, Arriva withheld the dashboard camera footage for 19 months and Arriva paid a relatively small amount of advanvance payment in comparison with the ten times higher amount of compensation for pain and suffering.

Conclusion

This case illustrates that the calculation of compensation for pain and suffering under Dutch law remains a matter of judicial discretion. However, the Rotterdamse Schaal appears to mark an important step towards greater legal certainty and uniformity in the calculation of compensation for pain and suffering. We will continue to monitor developments concerning general damages and of course we would be happy to advise in individual cases on the application of the Rotterdamse Schaal (and the Recommendations) when determining compensation for pain and injury according to Dutch law.