INTRODUCTION

Belgian citizens who have suffered damage of any kind and who seek compensation would probably write to their insurer or the wrongdoers (if any). Additionally, they can receive supplementary compensation via social security (Belgian social security is very generous compared to certain other countries). Maybe they would even sue the liable person, if they deemed their chances real. However, not all of the abovementioned options are available at all times for victims. Sometimes the tortfeasor is irretrievable or insolvent. On other occasions, the damage has occurred without liability. Even when victims can rely on compensation from insurance, social security or the tort system, this compensation can be insufficient. However, this is not the end of the story. In a growing number of cases another compensation source is available for the victim: a compensation fund.

Indeed, next to the three ‘classic’ compensation sources (liability law, social security and insurance law) a fourth one is emerging: compensation funds. Recently created funds are proof of the legislature's trust in funds, which considers that funds offer more than a mere marginal solution to compensation issues.

More significantly, these funds represent a change in mentality. Citizens have become more reluctant to accept that they have to bear (the costs of) damage. To the contrary, they expect the Government to support them financially in one way or another. An example is the Fund for Medical Accidents. This fund intervenes (under certain conditions) when a medical accident has occurred without liability of the medical practitioner. In this situation, under the general rules of liability law, no damages can be received from the medical practitioner, which means that a victim would end up empty-handed. Instead, the Fund now grants the patient a certain level of compensation.

In other words, the adage ‘the loss lies where it falls’, referring to the rule that any person has to cover his or her own damage unless he or she can appoint a liable person, is slowly fading away. Compensation funds seem to reverse this old rule by offering financial relief in situations where victims would otherwise have to bear their costs themselves.