Beweging in het Aansprakelijkheidsrecht
Damage resulting from emotional shock
Each year in the week after Easter the most significant developments of the past year in the field of tort law in Europe are discussed at the Annual Conference on European Tort Law, organized by the European Centre of Tort and Insurance Law (ECTIL) and the Institute for European Tort Law (ETL). During this conference – this year for the first time after the pandemic fully an in-person format – experts from across Europe present the highlights of their contributions to the Yearbooks European Tort Law, which are published yearly. UCALL members Anne Keirse and Emanuel van Dongen, represent the Netherlands. At the 22th Annual Conference on European Tort Law that took place in Vienna at the Austrian Supreme Court/Palace of Justice on 13-14 April 2023, Emanuel van Dongen spoke about the case of 2022 on damage resulting from emotional shock.
An emotional shock can be caused by a traumatic event. A sad example is that of being confronted with the consequences of one’s child’s death. In 2015, a mother intentionally took her 8-year-old daughter’s life by dropping her from a great height from an apartment building in Hoogeveen. She was prosecuted and convicted for manslaughter, and the case was extensively covered in national news. The father was confronted with his (deceased) daughter when he voluntarily went to the morgue and looked at some photographs taken at the crime scene. Later on, he was diagnosed with PTSD, resulting from these experiences. On his behalf as aggrieved party, he joined criminal proceedings pursuant to article 51f of the Code of Criminal Procedure, and requested an award for damage resulting from shock. When this case started at the court of first instance, in 2018, a request for affection damages was not yet possible under Dutch law. This, however, became possible in 2019. In the case at hand, the Court of Appeal awarded the compensation for damage resulting from shock. Subsequently, cassation was instituted on behalf of the mother.
Before going into this case further, let’s discuss what the law states on the matter of immaterial damages. The possibility for compensating immaterial damages was first created in case law, and codified in the Civil Code in 1992. Immaterial damages only qualify for compensation to the extent that the law confirms a right to damages therefor. A right for immaterial damages arises if the liable person had the intention to inflict such harm; under certain conditions, if the harm consists of injury to the memory of a deceased person; and if the person suffering the immaterial loss sustained physical injury, his honour or reputation is injured or his person has been otherwise afflicted (‘op andere wijze in zijn person is aangetast’). An award for damage resulting from shock also falls in this category (article 6:106 para 1 sub b DCC).
Over the years, legal ideas on compensation for mental injuries have changed, e.g. compensation for mental injuries is increasingly equated with compensation for physical injury. Also, the limits of the scope of the open norm ‘his person has been otherwise afflicted’ of article 6:106 para 1 sub b final part DCC have changed: first, for a eligible mental injury a recognized psychiatric illness was required, but that is no longer the case. However, the emotional shock must still have resulted in mental injury that is serious in nature, duration and/or consequences, and sufficiently objectifiable.
Parliamentary history and case law
According to the Parliamentary History of the Civil Code, the case of grief for others should be distinguished from that of damage caused by a ‘shock’ resulting from observing or being confronted with a fatal accident. The question then arises whether such a ‘shock’ can give rise to injury or other impairment of the person, which would entitle that person to compensation pursuant to 6:106 DCC entitles to financial compensation. According to the (Dutch) Minister, this article does not exclude such possibility (Parl. Gesch. BW Inv. 3, 5 en 6 Boek 6 1990, p. 1274).
The Supreme Court first accepted the possibility of compensation for moral damages resulting from shock in 2002 (Taxibus), holding that a person who kills or injures another by a wrongful act may also act unlawfully towards the person to whom the confrontation with that act or its consequences causes a severe emotional shock (the so-called ‘secondary victim’). Whether this is justified in a particular situation will depend on a weighing of the circumstances of the case. In this ruling four (cumulative) requirements were formulated for such unlawful acting: (i.) an infringement of a violation of traffic or safety standard, (ii.) leading to the injury or death of the primary victim. The third party should have (iii.) observed the accident or have been directly confronted with the consequences thereof, and (iv.) because of that confrontation leading to a severe emotional shock resulting in mental injury, qualifying as recognized psychiatric illness. As noted before, a psychiatric qualification is not required anymore.
In later cases the question came up if direct confrontation was really needed in case of intentional crimes. In the Vilt-decision from 2009, the Supreme Court quashed the decision of the Court of Appeal, who decided that in case of an intentional crime other criteria should apply. This is understandable, because if confrontation would not be needed, than there would not be a shock case anymore. This would be contrary to the difference between affection damage, i.e. suffering resulting from the loss of a loved one (not eligible), and damage resulting from a shock (eligible). Thus, resulting from the Vilt-decision, also in cases of intentional crimes, the four requirements stemming from Taxibus criteria apply in full.
The ‘Hoogeveen’ case: outcome
Back to the Hoogeveen case. In cassation in the Hoogeveen case, the mother argued that the requirement of direct confrontation was stretched too far by the Court of Appeal, as it was not unexpected and unavoidable. The father – her ex-husband – was voluntarily confronted with the deceased body of his daughter and photo’s thereof. The Supreme Court then clarified the criteria for award for compensation for serious mental injuries resulting from shock. While the criteria formulated in the Taxibus-case still apply, the question of whether those criteria are met must be answered using (non-exhaustive) points of view. In this ‘multifactor approach’, the points of view that play a role in this assessment are: (a) the nature, the circumstances and the consequences of the unlawful act committed against the primary victim, including the intention of the perpetrator and the nature and severity of the suffering inflicted, (b) the manner in which the secondary victim is confronted with the unlawful act committed against the primary victim and its consequences, and (c) the nature and closeness of the relationship between the primary and the secondary victim.
Judges have to assess the (un)lawfulness towards the secondary victim on a case-by-case basis, taking into account, inter alia, these points of view in their interrelationship, without giving a priori decisive importance to any of them. If one of these points of view does not provide a clear indication to assume unlawfulness, unlawfulness may nevertheless be assumed if the relevant circumstances, from other points of view, are sufficiently substantial.
The right to compensation for damage caused by the unlawfully induced emotional shock is limited to the damage resulting from mental injury. The Supreme Court ruled that this mental injury must be serious by nature and duration and substantiated by objective standards, not necessarily limited to recognized psychiatric disorders, but always diagnosed by an appropriately qualified and competent practitioner. If such mental injury is established, both material and immaterial damage caused by this injury are eligible for compensation.
To conclude: direct confrontation
Based on this decision we can conclude that the criterion of direct confrontation was too strictly applied in lower case law. A first step in loosening this criterion was nevertheless already taken before the Hoogeveen ruling, namely by the Court of Appeal Amsterdam in May of 2022, in a cold case on rape and murder of a young woman. The claim for shock damages was awarded by the court, considering the unexpected visit by the police, the sight of her sister’s mutilated body, and the actual knowledge of the gruesome manner in which her sister met her end resulted in intense emotional shock and mental injury. In case, the confrontation is not immediate it seems to be particularly important whether serious criminal offenses were committed and a close relationship as next of kin exists.
This post was co-authored with prof. mr. Anne Keirse. See for more details and references: E.G.D. van Dongen & A.L.M. Keirse ‘The Netherlands’, in: E. Karner & B.C. Steininger (eds.), European Tort Law 2022, Berlin/Boston: De Gruyter 2023 (to be published).