Abstract
Predisposition and pre-existing conditions are one of the most controversial and difficult topics in law, especially Liability Law and Insurance Law.
The (pathological) predisposition is a characteristic, mostly unknown, which does not affect ordinary life, but which favors the occurrence of damage when an accident happens. An example is when a person has a very rare allergy to a substance, and due to a car accident he is hospitalized and injected with that substance resulting in his death.
The pre-existing condition is an abnormal physical or psychological condition of the victim which is already known or at least exists at the time of the accident. Examples are: anatomical elements (only one eye, or one leg), pathological physical elements (a heart defect) or psychological elements (schizophrenic episodes, post-traumatic stress disorder, depression). The most famous example is the eggshell skull-case in which a person with an eggshell skull or very thin skull suffers dead from an injury that would normally cause only a bump on a normal person. The negligence of a third person can aggravate this pre-existing condition. A one-eyed person loses his second eye due to an accident. An accident can also hasten the evolution of the pre-existing condition. A terminally ill patient who dies due to a car accident is an example of this hypothesis.
In all the above mentioned cases the crucial question is whether the victim will be compensated in full or only for the foreseeable damage or for the damage caused separately. In other words, must the tortfeasor pay for the car accident or for the death of the victim? For one eye, or for the blindness? For the dead due to a car accident or only for the time he had to live? In tort law the basic rule is the right of full compensation. This cornerstone of tort law is seen as just and fair and according to the goals of tort law. The rule of full compensation comes under pressure when the damage is unforeseeable or the extent of the damage is unforeseeable due to a predisposition or pre-existing condition of the victim. Hence, an important research question is: are the issues of predisposition and pre-existing conditions in line with the principle of full compensation?
Predisposition and pre-existing conditions also play an important role in insurance law. In order to make a proper assessment of the insured risk, the life or physical integrity of the person, insurance companies want information about the health condition of the prospective insured person. For this purpose insurance companies use medical questionnaires or impose medical examinations to look for pre-existing conditions. Questions about pre-existing conditions could violate some fundamental rights, like the right of privacy, and the right on non-discrimination. These questions are one of the key points of this project. Furthermore, the question arises whether the insurance company can determine the definition of a pre-existing condition and can also refuse coverage when no information about a pre-existing condition has been provided. Insurance companies use several clauses to exclude pre-existing conditions, which seems possible, regarding the principle of freedom of contract. First, they limit coverage of the pre-existing condition for a specified period (e.g. waiting period for 1 year). Second, insurance companies may raise an insured's premium due to the existence of a pre-existing condition (asthma e.g.). Finally, and more importantly, insurance companies often use pre-existing condition clauses to deny insurance altogether or to deny coverage of the specific condition for the lifetime of the applicant. The insurance practice must also be assessed in the light of fundamental rights and the contractual balance between parties.
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