The Court of Appeals of ‘s-Hertogenbosch recently rendered a decision in a claim for affection.
Affection damages concern a compensation for the grief and pain caused by the fact that a person (the primary injured party) with whom one has an affective bond suffers serious and permanent injury or death. It is a derived form of compensation and therefore an exception to the principle that only the injured person himself can claim compensation for his loss if someone else is liable.
In addition, under strict conditions, compensation for shock damage is possible if, by observing an accident or by being directly confronted with the serious consequences thereof, a severe emotional shock is caused which results in mental injury. This is direct liability. The person who commits a crime resulting in death not only acts unlawfully towards the person who has been killed, but also towards the person to whom shock damage has been caused. Compensation of shock damage is only possible under strict conditions.
One of the appellants, the father, claimed compensation for shock damage caused by the confrontation with the injury of his son. First of all, the so-called confrontation requirement must be met. In general, it applies that the startled person does not have to have been present at the event on which the liability is based; under circumstances a direct confrontation with the serious consequences thereof is sufficient to establish a claim for compensation. In the present case, the confrontation with the injury took place during the identification in the mortuary. There was serious facial and skull damage to the son. The father contended that the visible consequences of the very serious injuries, especially to the head (broken in several places) of his son were (still) visible at the time of the identification in the mortuary. The father argued that the confrontation in the mortuary with the heavy violence in combination with the knowledge that his son was found in a large pool of blood on his stomach and that there were immediate indications that he had been killed in the house of his best friend and that this friend was responsible for this, caused him to suffer a severe shock. Because of this the father was able to form a clear and concrete image of the circumstances under which his son died and the consequences thereof. In view of all these circumstances the Court of appeals is of the opinion that the requirement of confrontation has been met because there has been a direct confrontation with the serious consequences of the crime.
The Court of Appeals also considered it an established fact that the father had suffered mental injury as a result of the direct confrontation. Therefore, the father was entitled to compensation for shock damage.
The amount of the shock damage suffered must be determined in fairness, taking into account all circumstances of the case, including the seriousness of the reproach to be made to the defendant, the nature of the injury, the severity of the injury (including duration and intensity), the expectation with respect to recovery and the age of the injured party. Furthermore, the judge should, if possible, take into account the amounts awarded by Dutch judges in similar cases. The Court therefore deemed the claimed compensation of €15,000.00 fair.
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