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26.01.2025
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How does the damage state procedure work?

A damages state proceeding can occur after a wrongful act

A damages state procedure is a legal way of determining exactly how much compensation you can receive after liability has already been determined. This procedure is often used when damages cannot be calculated immediately and to avoid unnecessary costs at earlier stages.

If you are dealing with wrongful garnishments, the garnishee damages can be an important issue in these proceedings. In this article, we explain to you how the procedure works, what to expect and when it is applied in a so-called damages state proceeding.

Key points of a personal injury damages lawsuit

  • A damages state proceeding focuses on establishing damages after liability has been established in a previous proceeding.

  • The judge plays a crucial role in damages state proceedings. He is bound by the liability established in the main proceedings and determines the amount of damages. The judge may ask the parties to clarify their arguments and evidence regarding damages, which may lead to a decision to settle the case itself or refer it to a damages state proceeding.

  • It is not necessary to actually prove the injury in order to bring a damages state proceeding; it is sufficient that the injury is plausible.

What is a damages state procedure?

In a few cases, a client sees the damages state proceedings dismissed

A damages state proceeding is a statutory procedure that focuses exclusively on the determination of damages. This procedure takes effect after a party’s liability has been determined in a previous proceeding. Its purpose is to allow the court to assess the amount of damages, without the obligation to pay damages still being at issue.

The so-called damages state procedure can be particularly useful in complex cases. Suppose there is a tort in which the damages cannot be determined directly. In such cases, the court may decide to first determine liability in the main proceedings, after which the earlier damage-state proceedings follow tied to determine the exact amount of damages. This avoids incurring unnecessary costs for damages calculations before liability is confirmed.

Establishing a causal link between the wrongful act and the claimed injury is crucial to the success of a damages state proceeding.

It is important to note that for the award of damages, it is not necessary to prove that the injury was suffered, as long as the injury is plausible. This provides somewhat of a low barrier to initiating damages state proceedings and ensures that injured parties do not have to wait unnecessarily long for their rightful compensation.

The personal injury claims process: what can you expect?

An image of a courtroom where personal injury litigation takes place.

When you are dealing with personal injury, such as in an accident, the process of getting compensation can sometimes seem overwhelming. The first step is determining who is responsible for the injuries and damages. This is often done through evidence such as witness statements, police reports and photographs.

Next, all damages are inventoried, including:

  • medical costs

  • income loss

  • help at home

  • emotional damage

A medical advisor will prepare a report on the nature and severity of the injuries, which serves as the basis for the compensation claim. With this report in hand, a formal liability letter is sent to the plaintiff or his or her insurer to claim compensation. Often an attempt is first made to reach fair compensation through negotiations with the insurer, but if this fails, the case may be taken to court.

Ultimately, payment of compensation follows when an agreement is reached.

When are damages state proceedings initiated?

A damages state procedure is used when determining the amount of damages is not possible in the main proceedings. The judge can then refer to a damages state procedure if there are time and evidence problems for the quantification of damages. This means that in the main proceedings, the judge first decides whether the party’s liability has been established and whether the damages are plausible.

Another important reason for initiating damages state proceedings is when there is insufficient evidence of the amount of damages. The court may then decide to use damages state proceedings to further determine the exact damages. This provides a structured way to determine damages in a fair and accurate manner, without bringing the original liability back into question.

Conduct of the damage state proceedings

The course of damages state proceedings usually begins after the final judgment in the main proceedings. The following damages state proceedings are then initiated to determine the exact damages, with the decisions of the judge in the main proceedings being binding. This means that certain arguments may be disregarded, especially if there is already an admission of liability.

The judge in the damages state proceedings then determines the amount of damages. There is no need to request payment of damages again, as the judge determines damages based on the facts. This makes the process more efficient and avoids unnecessary repetition of arguments.

Sometimes it may be necessary to conduct multiple damages state proceedings, especially if the damages are complex and become clearer over time. This ensures that the injured party does not wait too long for compensation and that damages can be claimed later. It is a flexible approach that takes into account the dynamics of damage budgets.

Role of the judge in the damages state proceedings

The role of the judge in damages state proceedings is crucial. The judge has the power to rule on damages himself or to refer to the damages state procedure. This depends on the ability to estimate the damages directly. If the damages are clear and easy to calculate, the judge may choose to determine the amount of damages himself without referring the proceedings.

However, the court is bound by the liability established in the main proceedings. This means that the discussion of liability is not reopened in the damages state proceedings. The judge also has discretion to determine the extent of the damages award, taking into account all relevant facts and circumstances. This provides a degree of flexibility and ensures that damages are just and appropriate.

There is great latitude for the court in assessing damages. Not all items of damage are required to be compensated, and the judge can determine which items of damage are or are not eligible for compensation. This allows for customization in each individual case depending on the specific circumstances of the injured party.

Liability, tort and damages state procedure

Before a damages state proceeding can take place, a party’s liability must already have been established in a previous proceeding. This is a crucial condition because the liability of the party can no longer be discussed in the damages state proceedings. Only the amount of damages and some defenses regarding damage limitation can be addressed.

A damages state procedure is often used in cases of wrongfully placed conservatory attachments, where the court assesses the possibility of compensation.

The possibility of damages must be plausible to initiate proceedings to the damages state procedure. For damages, the court may estimate the amount of damages in a manner most appropriate to the nature of the injury.

In damages state proceedings, the court is bound by the basis of liability established in the main proceedings. This ensures a clear and consistent approach in determining damages.

Claims in the statement of damages

A statement of damages includes a summary of various damages, potential damages and advances paid in a personal injury case. The statement of damages consists of several categories, including:

  • property damage

  • property damage

  • intangible loss

  • advances

Material damages can include lost income and healthcare costs, for example, while intangible damages are more difficult to quantify and include things such as the emotional impact of the injury.

Employing a separate procedure

One of the important items of compensation in a claim state is loss of income due to disability, including missed opportunities for promotion. In addition, expenses for domestic help, both professional and informal, can be reimbursed. Costs for additional child care as a result of the injury can also be claimed.

Damages state proceedings dismissed

In some cases, the damages state proceedings may be dismissed. This usually happens when the possibility of damages is not deemed plausible by the court. It is therefore essential to file a well-founded claim and demonstrate that the damages are plausible. If a damages state proceeding is dismissed, it may result in an order to pay the plaintiff’s legal costs. This highlights the importance of thorough preparation and meeting all requirements to successfully initiate damages state proceedings.

Specific requirements and conditions

When initiating a damages state proceeding, a document, the damages state, must be served on the opposing party that meets certain legal requirements. These requirements are essential to ensure that the proceedings are conducted correctly and efficiently. The damages state procedure involves normal court proceedings, including conclusory exchanges and court hearings, which may include evidence orders. This gives both parties the opportunity to present their views and evidence.

One of the unique aspects of damages state proceedings is that there is no time limit attached to their institution. This means that the injured party has time to determine and document the full extent of the damages before proceedings are initiated. This provides flexibility and ensures that all relevant damages can be included in the final damages award.

Assessment of damages

In damages state proceedings, the burden of proof is on the plaintiff. You are also responsible for proving the claimed damages. This means that you must be able to prove what damages you suffered and how they arose. Some damages, such as intangible damages, are assessed on a fair and reasonable estimate. This can be challenging because it involves subjective elements such as emotional pain and suffering.

The court has discretion to estimate the amount of damages in a manner most appropriate to the nature of the injury. This provides a degree of flexibility and ensures that damages are just and appropriate.

If the judge cannot determine that you would have been successful in an imaginary proceeding, damages may be assessed based on chance damages. This means that the judge estimates the probability of success and bases damages on that.

Causality, causation and probability damages

In cases involving probability damages, it is crucial that the court determine the relationship between the professional’s mistake and the damages claimed. Chance damages are assessed based on the probability that you would have been successful in a hypothetical proceeding. This means that the judge must determine whether there was a reasonable probability that the damages would have been compensated if the professional had not made a mistake.

The existence of chance damages can be the basis for compensation even if the outcome of another proceeding is uncertain. Assessing chance damages involves the court determining whether there was a reasonable chance of compensation. This requires a careful analysis of all the circumstances of the case and an assessment of the likelihood of success.

Intangible damages and foreclosure

In addition to material damages, immaterial damages can also be claimed in a damages action. Intangible damages, such as emotional and psychological damages, are often assessed on the basis of an estimate based on reasonableness and fairness. This means that no detailed substantiation is required for the amount claimed, as long as it is reasonable and fair in the context of the damages suffered.

Execution of a punitive damages award is possible, but it is subject to limitations. For example, the court may determine that certain items of damages must be further determined before execution can take place. This ensures that the final damages award is fair and accurate, and prevents foreclosure from proceeding too quickly without fully assessing all items of damages.

Consecutive procedures

The damages do not have to be claimed all at once; multiple damages state proceedings can be conducted sequentially. This provides flexibility for you because it allows you to claim damages for items of damage that do not become apparent until later. The rationale behind this is that you do not have to wait too long for compensation, while the possibility remains to claim compensation in further proceedings for items of damage that could not be determined earlier.

This approach ensures that you do not have to wait unnecessarily long for compensation for the damage suffered and that all relevant items of damage are ultimately included in the compensation. It provides a structured and flexible way to obtain compensation, even if the full extent of the damage does not become clear until later.

Exceptions and limitations of the damages state procedure

There are some exceptions and limitations to the damages state procedure. For example, in some cases the court may decide to estimate the damages itself rather than refer to a damages state proceeding. This usually happens when the damages are easy to calculate and there are no complex items of damages that need to be further determined.

In addition, the damages action may be dismissed if the possibility that damages have been or will be suffered is not plausible. In that case, you may be ordered to pay the costs of the proceedings. This emphasizes the importance of a well-founded claim and making the damage plausible in order to successfully initiate damages state proceedings.

Thus, it is essential to exercise care in preparing for a damages state proceeding and ensure that all requirements and conditions are

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Liane Foe

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