David Lewin, Managing Director
The Conservative Dutch Approach
One of life’s more horrific situations might involve the sudden death or major injury of a loved one, husband, wife or child caused by an unlawful action of a third party, a traffic accident or the deliberate and violent misbehavior against the loved one. Assuming that someone is at fault (which is of course the case if the action is a deliberate one), can the surviving or unharmed relative claim compensation from the party responsible for the loss of life or injury of the victim?
If the results involve matters such as deprivation of support, the answer is clearly yes. The articles 6:107 (Injury) and 6:108 (Loss of life) of the Dutch Civil Code address this. However, consider a process for compensating the pain and suffering of the surviving or unharmed relative. In the Netherlands, pain and suffering as a result of the loss of life or heavy injury of a relative is, unlike in many other jurisdictions, not compensable.
Earlier this year, on March 23, 2010, a draft bill that aimed to introduce this type of compensation was defeated in the Dutch parliament. The draft bill was approved by the second Chamber of the Dutch parliament (comparable with the UK House of Commons) but rejected by the first Chamber (comparable to the UK House of Lords). The arguments presented stated that this kind of damage cannot be quantified in monetary terms and would eventually lead to unhealthy and therefore undesirable legal proceedings. The Netherlands clearly missed an opportunity to align with other jurisdictions. Currently, claims for compensation for pain and suffering as a result of the death or heavy injury of a relative will not be acknowledged in the Netherlands.
Dutch case law makes a distinction between claims for pain and suffering (in Dutch: “affectieschade”) and damage due to the shock received as a consequence of the loss of life or heavy injury of a close relative (in Dutch: “shockschade”). The Dutch Supreme Court (“Hoge Raad”), in its decision of February 22, 2002 [NJ 2002/240], ruled that pain and suffering (“affectieschade”) were not compensable. However, its decision also stated that an unlawful action against a victim by the responsible party may at the same time lead to an unlawful act regarding the surviving or unharmed relative. If one actually sees or is otherwise directly confronted with the death or heavy injury of a close relative, provided that this leads to a recognized physical disease, a damage claim by the remaining or unharmed relative for shock damage (“schockschade”) against the responsible party is possible. The case decided by the Dutch Supreme Court in this decision concerned a mother who had sustained consequent psychiatric damage having witnessed her young daughter being run over by a taxi bus. This case, while the taxi driver was clearly at fault, concerned an accident. But even in the situation of a violent and deliberate unlawful action, such as the murder of a relative, the Dutch rule states that compensation for plain grief is not possible. Compensation is only possible if a recognized psychiatric disease has been determined as a consequence of actually seeing or being directly confronted with the loss of life or heavy injury of this relative [Dutch Supreme Court, October 9, 2009 LJN B18583].
Many believe the Dutch Parliament missed an opportunity by not approving the draft bill. They question how compensation is not warranted in a situation where a person is shocked (or suffers pain and suffering) when he or she is informed that husband, wife or child has died or has been disabled for life due to the unlawful action of a third party. While difficult to understand, it is the current rule of law in the Netherlands. And would this have led to unhealthy and undesirable court proceedings? Most agree that the level of compensation under the draft bill would not have led to excessive monetary awards. Upon examination the draft bill actually contained limited compensation levels. It is true that loss of life or injury is impossible to quantify in money. Lack of compensation is, however, not a satisfactory rule of law, but the current rule of law in the Netherlands.
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David Lewin, Managing Director