Can a right to damages arise if the victim himself will never know it exists? This question was at the center of a recent Supreme Court ruling in the so-called Mallorca case. [1] The supreme court answered in the negative: those who lose consciousness immediately and permanently are not entitled to damages, because the compensation can no longer alleviate the suffering. The Supreme Court thus draws a line, but leaves practitioners to guess exactly where it lies.
What happened?
Carlo was assaulted by a group of Hilversum youths in Mallorca in 2021, after which he fell into a coma. Carlo died a few days later. As next of kin, his parents claimed damages for the suffering caused to Carlo. The court granted this claim.
The Supreme Court thought otherwise. According to the highest court, compensation for damages is intended for the victim himself to compensate for his personal suffering. Since Carlo fell into a coma immediately after the attack and was therefore never able to consciously experience his own suffering, there was no right to damages that his parents could claim - the Supreme Court ruled. There is no grounds for compensation, according to the Supreme Court, “if the compensation can no longer serve to alleviate his suffering or provide him with satisfaction.”.
In short, in a situation where the victim - as in this case - immediately and permanently loses consciousness, the Supreme Court said that the personal experience of suffering is lacking and thus the ground for compensation.
What does this mean for practice?
With this ruling, the Supreme Court effectively introduces the requirement that there must be a certain level of consciousness to qualify for damages. The Supreme Court had held here in previous rulings - see the Coma judgment from 2002 [2] - no color about it yet. Before Mallorca it was therefore possible - and common - for a friend or relative to claim damages on behalf of a comatose victim while the victim was still alive. This damages then accrued to his next of kin through inheritance.
That line is now abandoned by the Supreme Court; according to the Supreme Court, the ‘highly personal nature’ of the grievance claim ensures that such situations do not (no longer) lend themselves to compensation in the form of grievance.
Much can and undoubtedly will be written about the legal correctness of this judgment. The question that concerns me is whether personal injury practice will benefit from this ruling.
An illustrative practical example
I illustrate the problem for practice with a real-life example. As a result of a traffic accident, a 30-year-old woman suffers a very severe brain injury. As a result, she permanently functions at the level of a five-year-old. Her family members, who will care for her for life, claim damages on the woman's behalf.
Would this woman be denied the right to damages because she herself was insufficiently aware of her suffering? Of course not. In fact, such serious brain injury results in a claim for damages of the highest category. In other words, the more severe the brain injury, the greater the claim for damages.
Neither advocate nor insurer will have any doubt that this woman is entitled to this money, while she, like the comatose Carlo, does not realize that she is receiving this money, let alone what this compensation is for.
This example shows that the distinction that the Supreme Court says should be made based on the victim's level of consciousness leads to very different outcomes in similar cases. The victim is either entitled to damages in the very highest category or entitled to nothing at all.
And then where exactly is the line? A coma patient is apparently not considered sufficiently conscious. When, then, is there sufficient consciousness to experience suffering and thus claim grievance? Is that when the fingers can be moved, or a muscle can be flexed? That question was not answered by the Supreme Court, nor is it easy to answer in practice: research shows that even in apparently unresponsive coma patients, pain stimuli can sometimes be detected.[3]
Separately, with this ruling, the Netherlands also appears to be the only country in Europe, for the time being, that categorically denies comatose injury victims the right to compensation.[4] This while the Netherlands already allocates low amounts of damages on average compared to, for example, the United Kingdom, Germany and France.
Now what?
Practice will tell: this ‘awareness discussion’ will undoubtedly have to be held more often. This raises the question of whether this is a desirable development, especially in a country where compensation amounts for damages are already substantially lower than in many other European countries. Moreover, this question will complicate and delay the claims process, which - given the current processing times - is undesirable.
All in all, the Supreme Court seems to have taken an academic turn that does not benefit practice. With this ruling, compensation for damages in cases of diminished consciousness suddenly becomes an issue as well, creating unequal outcomes for more or less equal cases and an additional burden on the claims process. Let's hope it won't go that far.
If you have questions about this blog, please contact the author, Gerrit Nagel.
[1] Supreme Court July 8, 2025, ECLI:NL:HR:2025:1058.
[2] Supreme Court Sept. 20, 2002, ECLI:NL:PHR:2002:AE2149 (Coma judgment, Cornelisse/Lokhorst).
[3] Calabrò, R. S., Naro, A., et al. (2023). Assessment and management of pain/nociception in patients with disorders of consciousness. Frontiers in Systems Neuroscience, 17, 1112206.
[4] The French Cour de Cassation already considered in 1979 that compensation does not depend on the subjective perception of the victim. The British House of Lords ruled in West v. Shepard in 1964 that comatose victims are entitled to damages, and even among our German neighbors it has long been clear that lack of consciousness does not prevent the award of damages. See in this regard, among others, Verheij, A. J. (2002). Compensation of immaterial damages for impairment of the person.