As of January 1, 2019, the time has come: the long-awaited Impact Damage Act will go into effect. What will change?
Next of kin receive an amount of grief compensation
To date, next of kin are not entitled to damages if their loved one dies due to someone else's fault. Until now, one of the most difficult aspects of personal injury practice I have found to be explaining to parents of a child killed by a traffic accident or crime that they are not entitled to damages. The same applied to people who lost their life partner: they were not entitled to compensation for their suffering. The Netherlands lagged behind many other countries in Europe in this regard. This backlog will come to an end on January 1, 2019. For accidents and crimes as of that date, survivors will be able to receive compensation for their immaterial damages from the person liable for the death of their loved one. These amounts range from €12,500 to €20,000, depending on the relationship to the deceased. Also important is whether the death was caused by a crime or an accident.
Suppose a 20-year-old boy dies as a result of a traffic accident caused by a drunk driver. At the time, the boy was living with his mother, who is living separately from the child's father. Because this is a traffic accident, the mother of the deceased child living at home is entitled to an amount of €20,000. The father is entitled to an amount of €17,500. If the motorist had not been drunk, but if the collision had been an “ordinary” traffic accident, then the perpetrator of the traffic accident must pay the mother an amount of €17,500, and the father an amount of €15,000.
Suppose the deceased boy had also had two brothers and a sister. Are the victim's brothers and sister also entitled to compensation for affection damages? In principle, no. It is different if the siblings can each make it plausible that he/she maintained a “close personal relationship” with the victim. In that case, the perpetrator must also pay damages to the siblings, up to an amount of €15,000 in the case of an accident and €17,500 if the victim died as a result of a crime.
The importance of liability insurance
The person causing the death is the one who must pay the above amounts. In the case of a victim who dies as a result of an accident and leaves behind a life partner, two minor children, two parents and two sisters, the amount of affection damages to be compensated can quickly add up:
Life companion: €17,500
Parent 1: €15,000
Parent 2: €15,000
Child 1: €17,500
Child 2: €17,500
Sister 1: €15,000
Sister 2: €15,000
Total: €112,500
In the case of a crime, the total amount of damages for affection falls even higher in this case:
Life companion: €20,000
Parent 1: €17,500
Parent 2: €17,500
Child 1: €20,000
Child 2: €20,000
Sister 1: €17,500
Sister 2: €17,500
Total: €130,000
Anyone who allows these sums to sink in will understand that the question of whether survivors“ affection damages are actually compensated depends on the financial position of the person who caused them, and whether he or she has liability insurance that pays out. In the case of a traffic accident or death due to medical malpractice or an accident at work, this will not pose any problems in practice. However, if the victim died as a result of a violent crime, the perpetrator's liability insurer will refuse to pay compensation because intentionally caused damage is not covered. On this problem and my solution to it, see my research "Towards an insured victim's right”.
Affection damage in the criminal process
Fortunately, for the next of kin of a crime victim, there is still a possibility to be compensated for affection damage. They can join the criminal proceedings and then (as of January 1, 2019) claim compensation for affection damage there. If the criminal court grants that claim, the State will pay the awarded amount to the next of kin (under the so-called advance payment scheme) and will itself take recourse against the perpetrator. This does entail an assignment to the criminal court to actually assess the content of this type of claim and not to refer it to the civil court. In my own practice, I often point out to criminal courts that the criminal process is the only way for crime victims and their survivors to effectively recover damages.
For more information about this blog, please contact the author, Arlette Schijns.