Research team

Personal Rights and Property Rights

Expertise

Legal consult, research projects and educational assistance on all research topics mentioned here : the law of obligations, contract law, tort law, insurance law, environmental law and medical law

Definition and relevance of predisposition and pre-existing conditions in Tort law and Insurance law. 01/10/2018 - 30/09/2022

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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Compensation funds: their nature, function and legality. 01/01/2018 - 31/12/2021

Abstract

The Belgian legislator is creating a rapidly growing number of compensation funds. Such funds provide full or partly compensation to victims of accidents, regardless whether or not their damage is imputable to someone else's fault. They are founded because of perceived gaps of coverage, or shortfalls in compensation, offered by the three other traditional sources of compensation, i.e. tort law, private insurance and social security. It is hard not to see the many advantages of compensation funds; a.o. they offer compensation without heavy burdens of proof to victims in an easy, fast and more administrative way, out of court. Compensation funds however seem to be a kind of deus ex machina. In view of their success, they surprisingly have not been the subject of any overall, critical analysis. Hence, this research project sets out to determine and assess their nature, function and legality, with a view of developing consistent touchstones for the organisation of current and future funds. More precisely, the project will investigate the accordance of compensation funds in the light of human rights, i.e. the right of access to justice and of non-discrimination(legality). Moreover, it will be investigated whether compensation funds fulfil their objectives, i.e. reasonable compensation, easy access, coherence and transparency (function). Last but not least the project will analyze who should endow these funds: the government or the private sector (private or public nature).

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Compensation funds: their nature, function and legality. 01/10/2019 - 30/09/2021

Abstract

Compensation funds provide compensation to victim of accidents regardless of whether their damage is the result of anyone else's fault. They are created because of perceived gaps of cover in or shortfalls in the compensation offered by the three other, traditional sources of compensation, i.e. tort law, private insurance and social security. It is hard not to see the many advantages of compensation funds: they offer compensation to victims who do not bear a heavy burden of proof, in an easy, fast and more administrative way and are nog obliged to go to court. Compensation funds seem to be a kind of deus ex machina, as the number of compensation funds is growing rapidly in Belgium. In view of their success, it is surprising till now compensation funds have not been the subject of any overall, critical analysis. This research project will investigate the accordance of compensation funds in the light of human rights, i.e. the right of access to court (given that some funds restrict this access) and of non-discrimination (given the difference in treatment between victims that can rely on a fund and those who can't). Moreover, it will be investigated whether compensation funds fulfill their objectives, i.e. reasonable compensation, easy access, coherent and transparent. Last but not least the project will analyze who should pay these funds: the government or the private sector.

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Compensation funds: their nature, function and legality 01/10/2017 - 30/09/2019

Abstract

Compensation funds provide compensation to victim of accidents regardless of whether their damage is the result of anyone else's fault. They are created because of perceived gaps of cover in or shortfalls in the compensation offered by the three other, traditional sources of compensation, i.e. tort law, private insurance and social security. It is hard not to see the many advantages of compensation funds: they offer compensation to victims who do not bear a heavy burden of proof, in an easy, fast and more administrative way and are nog obliged to go to court. Compensation funds seem to be a kind of deus ex machina, as the number of compensation funds is growing rapidly in Belgium. In view of their success, it is surprising till now compensation funds have not been the subject of any overall, critical analysis. This research project will investigate the accordance of compensation funds in the light of human rights, i.e. the right of access to court (given that some funds restrict this access) and of non-discrimination (given the difference in treatment between victims that can rely on a fund and those who can't). Moreover, it will be investigated whether compensation funds fulfill their objectives, i.e. reasonable compensation, easy access, coherent and transparent. Last but not least the project will analyze who should pay these funds: the government or the private sector.

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Research team(s)

Financial supervision in the insurance industry. 01/10/2017 - 31/12/2018

Abstract

This project examines how the implementation of the Solvency II directive in the act of March 13, 2016 and the expanding of the MiFID market conduct rules to the insurance industry can comply with the principle of proportionality as a general legal principle. From this perspective, the research analyzes both prudential supervision and market conduct supervision on the insurance industry. The goal is to define recommendations for the legislator, on the one hand, and for the National Bank of Belgium and the FSMA, on the other hand.

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Antwerp Liability Law and Insurance Chair (ALLIC). 01/01/2014 - 31/12/2020

Abstract

This project represents a formal research agreement between UA and on the other hand the client. UA provides the client research results mentioned in the title of the project under the conditions as stipulated in this contract.

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Antwerp Health Law and Ethics Chair (AHLEC). 01/01/2014 - 31/12/2020

Abstract

This project represents a formal research agreement between UA and on the other hand the client. UA provides the client research results mentioned in the title of the project under the conditions as stipulated in this contract.

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Francqui Chair 2012-2013 Prof. Simon Deakin. 01/10/2012 - 30/09/2013

Abstract

Proposed by the University, the Francqui Foundation each year awards two Francqui Chairs at the UAntwerp. These are intended to enable the invitation of a professor from another Belgian University or from abroad for a series of ten lessons. The Francqui Foundation pays the fee for these ten lessons directly to the holder of a Francqui Chair.

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The legal and moral status of human substances, in particular organs and human tissues. 01/07/2009 - 30/06/2013

Abstract

Human bodily material, like blood, sperm, egg cells, organs and tissues, is very useful for therapeutic and research purposes. The goal of this project is to examine the legal and ethical statute of removed human bodily material, the pro's and con's of a commercialization of human bodily parts and to investigate the role of the state.

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The medical-ethical-legal status of stem cells and stem cell research. 01/10/2007 - 14/09/2012

Abstract

The goal of this project is to analyze the conditions of access, quality and safety of stem cell research, from the perspective of ethical-legal principles of the autonomy of the person and the protection of the embryo, in interaction with the constant evolution of medicine.

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Monitoring quality of end-of-life care in Flanders. (MELC-study) 01/09/2006 - 01/09/2010

Abstract

The strategic aims of the study are twofold. Firstly, the study aims to evaluate end-of-life care and end-of-life decisions in medical practice in Flanders, and to compare these findings with data collected in studies in the Netherlands. Secondly, the study aims to develop quality indicators of end-of-life care and end-of-life decisions, and to investigate possible monitoring systems.

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The legal status of the psychiatric patient and the Patients rights Act. 01/10/2005 - 30/09/2006

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Liability for the use of radioisotopes and ionising radiation. 01/10/2002 - 30/09/2003

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    Risk management for hospitals and physicians. 01/10/1999 - 30/09/2001

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      The legal status of mentally ill in civil law. 01/10/1998 - 30/09/1999

      Abstract

      The starting point for this research is a medical classification of what might be considered as mental illness. Integration of contested cases, such as drug addiction and sexual deviant behaviour, will be tried. This classification will be projected on provisions in mentally ill civil law, in a main past. The research will be developped in two parts : one about the status of the mentally ill, and one about the position of third parties, including the society. Successively, the provisions concerning personal rights, family law and the goods, will be discussed. Proposals to fill in the gaps will be formulated. The possibility to create a general system of mentorschip over the person and/or goods of the mentally ill, will be studied. Foreign systems will be taken into account thereto.

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        01/09/1998 - 20/11/1998

        Abstract

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          Genetics, law and ethics. 01/01/1997 - 31/12/1998

          Abstract

          Influence of research in the field of genetics on insurance and pre-employment selection.

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            Civil and criminal liability for damages caused to subjects of medical experimentation. 01/01/1997 - 31/12/1998

            Abstract

            Medical experimentation with human subjects is characterized by an inherent conflict of interests which demands an evaluation of the researcher, the hospital, the pharmaceutical industry and ethic comites on the other hand. The final objective is the draft of a legal framework, partly consisting of elements from comparative research, because of the lack of an adequat Belgian regulation.

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              The legal status of mentally ill in civil law. 01/10/1996 - 30/09/1998

              Abstract

              The starting point for this research is a medical classification of what might be considered as mental illness. Integration of contested cases, such as drug addiction and sexual deviant behaviour, will be tried. This classification will be projected on provisions in mentally ill civil law, in a main past. The research will be developped in two parts : one about the status of the mentally ill, and one about the position of third parties, including the society. Successively, the provisions concerning personal rights, family law and the goods, will be discussed. Proposals to fill in the gaps will be formulated. The possibility to create a general system of mentorschip over the person and/or goods of the mentally ill, will be studied. Foreign systems will be taken into account thereto.

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                Civil and criminal liability for medical experimentation with human beings. 01/01/1995 - 31/12/1996

                Abstract

                The purpose of this project consists of a thorough comparative legal study in which shall be examined whether medical experimentation is lawful, which conditions have to be met, and which problems to liability and insurance occur.

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                  01/10/1994 - 31/12/1995

                  Abstract

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                    Research into discrimination against persons suffering from HIV/AIDS or other infections diseases of a life-threatening nature. 01/10/1994 - 30/09/1995

                    Abstract

                    Research on legal measures and administrative practices which give rise to discrimination agianst persons with HIV/AIDS, or which aim at combatting discrimination against them, and to propose how discrimination may be overcome by legislative measures or by sensibilisation activities.

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