Defining the concept of damage
The term “damage” is now legally defined in Book 6 as the adverse effects resulting from the infringement of a legally protected personal interest.
A “protected interest” encompasses fundamental rights, subjective rights, freedoms and any mere interests, as long as they are recognized and protected by the law.
The new law distinguishes between economic and non-economic consequences of the infringement of the legally protected personal interest, with each category clearly defined.
The Book 6 also defines the “indirect damage” (“dommage par ricochet” / “schade bij terugslag”), as the own damage suffered by a person as a result of a prior infringement of the interest of another person with whom the former has a sufficiently close legal relationship or bond of affection. This definition is broader than the one used to date by the courts. Belgian law now clearly allows the person responsible for the damage to raise the same defenses against the indirect victim (i.e., suffering indirect damage) as (s)he could have against the direct victim (e.g., the fault of the direct victim, the fraud committed by the direct victim, ground for exemption of liability, etc.).
Preventive nature of the tort liability regime
Although it is generally accepted that the victim is not required to minimize his/her damage “as much as possible”, (s)he is still expected to take measures to limit it as a reasonable and prudent victim would.
In this context, the new Book 6 now allows the injured party to recover costs for measures taken to prevent imminent damage or further worsening of damage, even if the measures did not achieve their intended goal. Furthermore, as provided for under previous liability law, it authorizes the judge to issue orders against the person liable to prevent further damage that could result from the repetition or continuation of the harmful act.
Personal vs collective damage
The damage must still be personal in nature. This implies that only the individual whose interest has been infringed can seek compensation for the resulting damage. Initially, the draft bill proposed that a collective interest could be compensated under certain conditions specified by the law. However, the paragraph on collective damage was eventually removed. The justification for this removal is that the case law, which gives a broad interpretation of the concept of “personal interest”, is evolving rapidly, especially in environmental matters. The legislator wanted to avoid the adoption of a legislative text hindering the development of this case law. However, the preparatory work for the law emphasizes that the Book 6 does not preclude public authorities responsible for environmental protection to claim a personal interest in seeking reparation for ecological damage.
Predisposition and previous condition of the injured party
The new Book 6 provides clarity by enshrining existing caselaw regarding the predisposition and previous condition of the injured party.
As a rule, the predisposition of the injured party is not taken into consideration, and (s)he is entitled to full compensation of his/her damage, even if this predisposition is one of the causes of the damage.
If the injured party has already suffered loss or damage in the past, it is only entitled to compensation for the new loss or damage or for the worsening of the existing loss or damage.
By exception, if the person liable can demonstrate that the loss or damage would have occurred without his/her fault, only the loss or damage resulting from this earlier occurrence could be compensated. The person liable must therefore prove that, even without his/her fault, the damage would have inevitably occurred, albeit at a later date.
New damage and worsening of previous damage
Under the new Book 6, victims who have already received compensation for damage resulting from an injury to their physical or mental integrity, can claim additional compensation for new or worsening damage resulting from the same injury, but (i) which has not yet been taken into account in the initial compensation and (ii) of which they could not reasonably have been aware at the time of that first compensation.
Additionally, the Book 6 expressly specifies that any waiver of this right by the victim – which is quite common in settlement agreements – shall have no effect.
This represents a change from current law, since reservations are now automatic and no longer require judicial intervention anymore. However, this new provision is without prejudice to the statute of limitations.
Lucrative fault
The Book 6 introduces a new form of compensation for instances where the person responsible for the damage has (i) intentionally, (ii) and with the aim of making a profit, violated a personal right of the injured party (such as the right to privacy or publicity) or harmed his/her honor or reputation.
In such cases, the court may award the injured party additional compensation, on top of that awarded for the economic or non-economic damage incurred. This additional compensation is equal to all or part of the profit accrued by the liable party. To grant it and define its amount, the court takes into account various factors, notably the severity of the fault and the respective situations of the parties.
This new regulation extends to Book 6 the rule already set out in Article XI.335, para. 2 of the Code of Economic Law, which provides for the transfer of profits in favor of the victim of an infringement of his/her intellectual property rights.
Conclusion
With the new Book 6, the concept of damage is now legally defined, enhancing legal certainty. It also provides a legal basis for measures aimed at preventing damage. The predisposition and previous condition of the injured party have also been included in the reform.
However, the new Book 6 does not include any provision for collective damage, a feature that some had anticipated.
