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Netherlands: Legislation on Compensation for Emotional Distress

(July 29, 2015) The Netherlands Minister for Security and Justice has submitted draft legislation to the Dutch House of Representatives (Tweede Kamer) to provide for compensation for emotional distress arising from serious accidents and crimes. The proposed law would compensate the next of kin of victims who have died, and the dependents of victims who have severe and permanent injuries, as the result of an event caused by another party, such as “a road accident, a medical error, an industrial accident or a violent crime,” according to a July 20, 2015 announcement by the Ministry for Security and Justice. (Emotional Distress Bill Submitted to House of Representatives, Government of the Netherlands website (July 20, 2015).)

The legislation would amend the Civil Code, the Code of Criminal Procedure, the Criminal Code, and the Damages Fund for Violent Crimes Act. (Wijziging van het Burgerlijk Wetboek, het Wetboek van Strafvordering en het Wetboek van Strafrecht teneinde de vergoeding van affectieschade mogelijk te maken en het verhaal daarvan alsmede het verhaal van verplaatste schade door derden in het strafproces te bevorderen [Amendment of the Civil Code, the Code of Criminal Procedure, and the Criminal Code to Allow for Compensation for Emotional Damage and to Promote a Remedy Thereof and a Remedy for Displaced Injury by Third Parties in Criminal Proceedings] [Amendment Draft], No. 34257-2, Tweede Kamer website (July 16, 2015) [click on Voorstel van wet to download text].)

Under the scheme in the draft proposal, compensation would be paid in fixed amounts based on various categories, to account for the varied circumstances of the next of kin and dependents. The legislation “assumes a set circle of entitled persons: the partner of the victim, their children, and their parents,” as well as with the compensation ranging from €12,500-€20,000 (about US$13,812-$22,099), to be paid by the liable party. (Emotional Distress Bill Submitted to House of Representatives, supra.) The next of kin or dependents would also be permitted, when a criminal offense is involved, to lodge a claim for civil damages for emotional distress. (Id.)

Impetus for the proposed changes in the law appears to come from professionals in the personal injury field and from research, such as a 2009 study done by Vrije Universiteit (Free University) in Amsterdam, indicating that relatives require attention for the emotional impact on them from an accident befalling a loved one. The Vrije Universiteit study found that these relatives experience grief because of the death or serious injury of a family member due to third party fault, and while “[c]ompensation for emotional distress will not remove their suffering, … offering acknowledgement and redress and assisting in coping will.” (Id.)

According to an explanatory memorandum on the draft legislation, in almost all European countries, there is some form of compensation for emotional damages, and in recent years Austria and Sweden have recognized a right to compensation for such damages. Only in the Netherlands and Germany, it states, does this form of entitlement not exist. (Amendment Draft Explanatory Memorandum, No. 34257-3, Tweede Kamer website (July 17, 2015) (in Dutch) [scroll down page and click on Memorie van toelichting to download].)