In the past year, I have had family members face me in several cases who had lost their loved one, aunt, father, sister or daughter. In a number of cases, the circumstances under which someone died were so severe that a loved one also suffered mental injury. In some cases, claims can then be made for shock damage.
Shock damage: when is there a right to it?
In 2002, the Supreme Court ruled that under circumstances a person may be entitled to shock damage. This is stipulated in the so-called Taxibus ruling. Beer advocaten assisted the mother in this sad matter.
The woman's 5-year-old daughter had been run over by a cab bus in the residential yard. The cab bus had run over her little head in the process. When her mother tried to turn her little daughter's head over, she reached into her skull and realized that she had not seen vomit but her daughter's skull contents. The mother developed a mental disorder after this violent confrontation.
At that time, the mother could only claim death damages. In the case of a minor child, the damages in that case are limited to only the funeral expenses.1 Litigation went all the way to the Supreme Court over whether the mother was entitled to further damages. The Supreme Court ruled that it did. The Supreme Court formulated several points of view. Claim for shock damages can be made when there are:
- death or serious injury,
- In which there is a confrontation with the accident or its serious consequences (confrontation requirement),
- and the confrontation produced intense emotional shock,
- from which mental injury (in the sense of an illness recognized in psychiatry, such as post-traumatic stress disorder) results.
Recent developments
The question of whether a bereaved person was confronted with the serious consequences of the accident (the confrontation requirement) has been the subject of much litigation. It was previously held that the mere identification of the deceased in a mortuary is not sufficient. At July 23, 2019 the Hague Court of Appeal has ruled that under circumstances, confrontation with the deceased in the mortuary does suffice.
That case involved a 20-year-old French woman who had died as a result of a collision with a garbage truck. The garbage truck had driven over her head, fracturing her skull. When the woman was identified at the morgue by her parents and brother, they were confronted with the severe head injuries. Later, the family members also saw camera footage of the collision. According to the court, the confrontation requirement was met because of the visible effects of the serious injuries and the camera footage of the accident.
Retrieved from July 5, 2019 the Arnhem-Leeuwarden Court of Appeal ruled that Anne Faber's parents and brother are entitled to compensation for shock damage. Although the brother had not identified Anne at the morgue, he had been confronted with the shocking details of her death through photographs he saw of her. Photos taken after her exhumation showed traces of violence. Those circumstances combined with the enormous media coverage of the case - both at the time of her disappearance, the discovery of her body as well as during the criminal proceedings - in which he became familiar with all the details in the file, meant that he, like his parents, was entitled to €40,000 in shock damages. The brother was also awarded damages for study delay.
Shock injury and our practice
For all clients I assist, I hope that a psychological disorder does not develop after the intense confrontation with (the consequences of) the accident. I advise clients to seek psychological help as soon as possible after the accident. In consultation with the insurance company I try to make a budget available for psychological help; in my opinion this will benefit everyone. In the unlikely event that a psychological disorder does develop, I claim compensation for shock damage on their behalf.
If you have questions about this blog, please contact the author, Mildred Brun.
1 As of Jan. 1, 2019, that has improved slightly with the enactment of the law affection damage.