Compensation for non-pecuniary damages for persons having a close relationship with a victim suffering a fatal or serious and permanent injury
By Fleur van Kersbergen, associate at Ekelmans & Meijer Advocaten
After almost every European country, The Netherlands will now get its statutory provisions for a compensation for non-pecuniary damages for close relatives of a victim suffering a fatal or permanent and serious non-fatal injury.
Until recently it was only possible for close relatives in the Netherlands to claim compensation for emotional loss (a) of the Criminal Injuries Compensation Fund when the death of the victim was caused by a crime or (b) of a liable person when the relative had witnessed the accident or is confronted with the direct (and serious) consequences; relevant is whether the confrontation caused a shock.
Insurers and representatives of victims have repeatedly asked for attention for the interests of close relatives in compensation for emotional loss.
An earlier legislative proposal in 2010 (to give a close relative an easy way to claim for compensation) was rejected. Asked by the government the university of Amsterdam has researched several aspects of the compensation for emotional loss for relatives of a victim. The results helped to formulate a new bill.
The Civil Code will be changed taking effect from 1 January 2019, to make these new claims possible. A limited group of relatives of the victim will get a direct claim on the party who is liable for the death or permanent and serious injury of the victim. According to the government a permanent and serious injury should be assumed in case of a functional disorder of at least 70%.
A proven psychological disorder in the relative (or an actual confrontation with the injured, see above) is not required under the new law.
The group of entitled relatives is composed of: the cohabiting spouse, registered partner or partner in life, the parent, the child, someone who at the time of the event sustainable cared for or got care of the victim in family context and any other person who is in such a close personal relationship that he, in accordance with the requirements of reasonableness and fairness, has to be considered as a close relative with a direct claim. This last category does not require a biological relationship.
The Explanatory Memorandum to the (amendment of the) act explicitly state that the compensation has a symbolic character; it cannot actually take feelings of hurt and loss away. The compensation is intended as recognition of the emotional suffering and it provides a certain satisfaction.
The compensation consists of a fixed amount. The amount varies from € 12,500 to € 20,000, depending on the (nature of the) relationship, whether the victim is injured or dead and whether the injury or death is caused by a crime. The amount will be reviewed on a regular basis.
When the injury or death is partly caused by own fault of the victim, the compensation for the relative will be reduced by the same percentage. The compensation is not subject to attachment, and it is possible to assign it to another person.
It was suggested that the compensation should be lower when the injury or death is caused by a medical mistake. That idea has been abandoned. According to the government, it makes no difference whether the injury or death is caused by a medical mistake or (for example) a car accident.
What is the situation in Europe as far as compensation for emotional loss for close relatives is concerned? The European Court of Human Rights has already allowed a claim for compensation of a relative against the state who was liable for the death of a victim (ECHR 3 April 2001, appl. no. 27229/95, par. 130, 131 (Keenan/VK), ECHR 14 June 2002, appl. no. 46477/99, par. 97 (Paul en Audrey Edwards/VK), ECHR 17 June 2005, appl. no. 50196/99, par. 171, 172 (Bubbins/ VK)).
The Principles of European Tort Law (PETL) and the Draft of a Common Frame of Reference (DCFR) also provide “secondary victims” a compensation, without the presence of a psychological disorder. There is no fixed amount; the judge has discretionary power to determine the loss.
The Dutch Association of Insurers supports the new law because it clarifies an unclear situation: whether or not a claim to compensation exists is clear, the number of relatives that can claim are limited, the amounts are fixed, etc. Further legal debate is hopefully minimized. However, this comes at a cost. It is expected that per victim an average amount of compensation to the relatives will be paid of € 60,000. This will lead to an increase in the cost of claims and therefore also an increase of the premium that has to be paid under everybody’s general liability insurance.