⚖️ An accident worsens a pre-existing illness or injury: what can be compensated?
You were already suffering from back problems before a road accident. After the accident, your pain becomes worse and you need further treatment. The insurer argues that your problems existed before the accident and that it should therefore not have to compensate all your lasting effects.
That argument does not settle the issue. It is necessary to distinguish between a predisposition, a pre-existing condition that was already causing harm, and harm that the accident may simply have brought about sooner.
🧬 1. A predisposition does not deprive the injured person of compensation
A person may be more vulnerable than another because of a physical characteristic, a weakness or a medical predisposition. If that predisposition had not yet caused any harmful consequences before the accident, it does not, by itself, justify reducing compensation.
For events governed by Book 6 of the Civil Code, Article 6.29 provides that an injured person with a predisposition to suffer harm is entitled to full compensation for that harm, even if the predisposition contributed to it.
This does not mean that the accident makes the liable party responsible for every illness or health problem the injured person may have. The consequences caused by the accident must still be established. But the insurer cannot automatically reduce compensation simply because the injured person was more vulnerable.
🩺 2. If the pre-existing condition was already causing harm, only the new harm or aggravation is compensated
The situation is different if, before the accident, the injured person already had symptoms or limitations: recurring pain, ongoing treatment, inability to work or difficulty with daily activities, for example.
In that case, compensation covers the new harm caused by the accident or the aggravation of the existing harm. The injured person’s situation before and after the accident must therefore be compared in practical terms.
That comparison may draw on earlier medical records, treatment, periods of incapacity, activities the person could previously carry out, and limitations that appeared or worsened after the accident. A medical expert assessment often plays an important role in distinguishing what was already present from what the accident caused or aggravated.
⏳ 3. If the accident only brought forward the onset of future harm
Book 6 also addresses a more specific situation: the liable party may prove that the accident merely brought forward harm that would have occurred even without it. In that case, compensation covers the harm resulting from that acceleration.
It is not enough simply to argue that the injured person would probably have experienced problems later. The issue must be assessed in light of the medical evidence and the circumstances of the individual case.
🔄 4. Can a later aggravation be claimed after the case has been settled?
Sometimes, after a judgment or an out-of-court settlement, an injured person discovers a new consequence of their injuries or a worsening of their condition.
For events governed by Book 6, Article 6.37 allows a claim for additional compensation where the new harm or aggravation:
- results from the same physical or psychological injury;
- was not already taken into account;
- could not reasonably have been known at the time of the court decision or out-of-court settlement.
The provision states that the injured person cannot waive this right. This does not make every later claim automatically valid: the new harm or aggravation, and its connection with the original injury, must still be established.
📅 5. The date of the accident matters
Book 6 came into force on 1 January 2025. Its transitional provision states that it applies to events capable of giving rise to liability that occurred after it came into force. It does not apply to future effects of earlier events.
For an accident that occurred before that date, the case must therefore be considered under the rules that applied before Book 6 and the relevant case law. The fact that the medical assessment or compensation discussions take place later does not, by itself, make Book 6 applicable.
✅ In practice
If you had health problems before the accident, keep your earlier medical records and gather the documents that show how your condition changed afterwards. They can help distinguish a predisposition from a pre-existing condition that was already causing harm, and help establish any aggravation caused by the accident.
Have you been injured in an accident and is the insurer relying on your pre-existing health condition? Each case depends on the medical evidence and the actual consequences of the accident. Feel free to seek advice to have the documents in your case reviewed.
References: Book 6 of the Civil Code, Articles 6.29 and 6.37; Law of 7 February 2024 introducing Book 6 “Extra-contractual Liability” into the Civil Code, Article 44 (transitional provision).
