Immaterial damages on the agenda of the 21th Annual Conference on European Tort Law

In the week after Easter, the most significant developments of the past year in the field of tort law in Europe were discussed in Vienna 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). Experts from across Europe present the highlights of their contributions to the Yearbooks European Tort Law, which are published yearly. One part of the report, each year, elaborates on  personal injury cases. UCALL members Emanuel van Dongen and Anne Keirse, represent the Netherlands. At the 21th Annual Conference on European Tort Law that took place in a hybrid form on 21-22 April 2022; the former spoke about an important case of 2021 from our country. We discussed the question of liability for immaterial damage in the Groningen earthquake cases as well evolutions in compensating immaterial harm. The topicality hereof was also shown by its particular attention in the comparative remarks on the second day of the conference. This blog also outlines the Dutch leading case as well as reflects upon the broader development regarding compensation for immaterial harm.

For the last three decades, earth quakes have occurred  yearly (and sometimes more than just yearly) in the province of Groningen in the north of the Netherlands, as a result of gas extraction. In 2021 alone there were a total of 72 earthquakes, leading to all kinds of damage, both material, for example to houses, and immaterial damage as discussed below. Over 5.000 cases regarding compensation of this damage are now pending at the court of first instance. Although in these cases financial compensation has generally been awarded for  property damage involving physical damage to houses, parties are mostly litigating about other kinds of damage: namely damage such as lost pleasure of living, and immaterial damage such as compensation for fear. Recently, the Dutch Supreme Court discussed the scope of compensation for immaterial damage, exploring and pushing the boundaries of what can be legally awarded. The issue at hand thus constitutes an important social development that necessitates a shift of these boundaries, as sticking to set (legal)limits in these cases is considered undesirable. Of course, compensation for immaterial damages is not something new; but thinking about immaterial damage and the boundaries of its compensation awards do shift over time, as was shown at the annual conference regarding the common trends in Europe and is discussed in this blog regarding the development in the Netherlands.

Immaterial damages in the Netherlands

In 1992, the possibility  to award compensation for immaterial damage, which was already accepted in case law, was codified in the New Civil Code. Immaterial damage can only be compensated to the extent that the law confirms a right to damages therefor (art. 6:95 Dutch Civil Code (DCC)). Thus, besides the question whether immaterial damage can be compensated for at all, which was once answered in the negative in the far past but is now answered positively, the question is which kinds of immaterial damage are recognized. Over time, there have also been different approaches to this question. There is a general concern that –granting compensation too easily can lead to luxualisation and emotionalization of tort law. Still, the call for more possibilities to compensate for immaterial damage was loud and clear at the end of the 20th century, and has becoming louder ever since.

Some sorts of immaterial damage are more eligible for reimbursement than others.  According to art. 6:106 DCC, a right of compensation for immaterial damages arises, if the person inflicting harm had the intention to do so; under certain conditions, if the harm consists of impugnment to the memory of a deceased person; and if the person suffering the immaterial loss sustained physical injury, his honour or reputation was impugned or his person has been otherwise afflicted. In addition, compensation for immaterial harm is, under certain restricted circumstances and to a limited extent, possible for third parties (arts 6:107 and 108 DCC).

Third parties can also claim immaterial damages. The most important examples of these so-called third party damages are shock damages,  compensating for psychological damage caused by traumatic incidents causing a nervous shock – introduced in the famous Taxibus case – and bereavement (or so-called ‘affection’) damages, compensating for the immaterial harm suffered the event a person with whom an affectionate relationship was shared suffers permanent serious injuries or died (introduced in the Act on Compensation for Affection Damages (2019)). After the introduction of these new possibilities of granting damages for psychological damage, another sort of immaterial damages is now at stake. It is exactly the limits of the scope of the open norm ‘his person has been otherwise afflicted’ of art. 6:106 sub b final part DCC, which is lately being broadened by the courts.

Although mental illness or injury has been a ground for compensation for some time, what precisely qualifies as suffering eligible for reimbursement can be debated. According to the Supreme Court, the injured party must provide sufficient concrete data from which follows that, in connection with the circumstances of the case, mental injuries have been suffered. These injuries must be determined according to objective standards, but  do no longer have to amount to a recognized psychiatric disorder, diagnosed by a psychiatrist or psychologist. Furthermore, even if such a mental injury cannot be assumed, it is not excluded that the nature and seriousness of the violation of the standard and its consequences for the injured party imply that ‘his person has been otherwise afflicted’. In such a case, the party who relies on this possibility must substantiate his impairment with concrete data, to be assessed on an individual basis – unless the nature and seriousness of the norm violation may mean that the adverse consequences relevant in this context to the injured party are so obvious that an impairment in person may be assumed – in that case a further concretisation is not needed.

Groningen and shifting boundaries

Back to the Groningen earthquake case. At the end of 2021, the case concerning the earthquake damage in the Groningen field came before the Supreme Court. According to the Supreme Court, the extent of the duty to compensate for being otherwise afflicted in person in the sense of art. 6:106 sub b final part DCC cannot be calculated as lump sum, because of the highly personal nature of such a claim. However, the nature and seriousness of the impugned act can imply that the adverse consequences are so obvious for citizens living in the Groningen field that it can be assumed that their persons have been otherwise afflicted and that this has led to immaterial damage at least to a certain amount.

The question is when and under what circumstances this is the case. As a guideline for demarcation was previously suggested to determine whether or not the houses are positioned in ´the area above the Groningen field´ (see already the preliminary ruling of 2019), assuming that theses houses and their inhabitants were damaged the most; but this guideline turned out to provide insufficient guidance and to be inappropriate. Therefore, a new demarcation was formulated by the Court of Appeal, namely if the parties involved ‘experienced physical damage to the residence several times’. If the residence of claimants was physically damaged more than once, ‘affliction to the person’ can be assumed, and immaterial damages can be granted. In such a situation, the nature (concrete and potentially frightening invasion of personal privacy) and severity (not an incident but a recurrence) of the event imply that the adverse effects are sufficiently obvious. If physical damage to houses was determined to have occurred at least twice, then at least € 2,500 must be paid to the residents concerned as compensation for the immaterial damages, to be increased by € 1,250 for each additional instance of physical damage to the house as a result of a following earthquake. Whether there is additional harm in terms of article 6:106 sub b final part DCC (and therefore a harm qualifying for a right toimmaterial damages) should still be considered on a case-by-case basis.

Reflections and conclusion

In conclusion, we witness a balancing act between the principle that (immaterial) damage must be determined and compensated on a concrete and individual basis – determined on the basis of fairness, conform similar cases  ­– and the social fact that many of the same types of damage occur. Compensation in personal injury cases is as a rule determined on a case-by-case basis, but in this situation – with so many comparable cases and injured parties – a sort of standardization was awaited for.. It is therefore to be applauded that the Supreme Court allows for the equitably determined fees to be set in these cases at € 2,500 (to be increased by € 1,250 for each additional instance of physical damage).

The briefly discussed ruling shows that the boundaries of compensation for immaterial damages are shifting – following pleas for such shift. The courts  have shifted boundaries of possibilities inits decisions by enlarging the situations in which the category ‘if his person has been otherwise afflicted’ of art. 6:106 sub b final part DCC. The Groningen field case answers the question of whether and, if so, under what conditions immaterial damage suffered by the occupants can be eligible for compensation – and fits in this development of shifted boundaries of possibilities.

This blogpost was co-written by Emanuel van Dongen. Mr. Dr. Emanuel van Dongen is associate professor of private law at the Molengraaff Institute for Private Law, and researcher at UCALL. He is Titularis of the Alternating Chair of the Tijdschrift voor Privaatrecht (TPR) 2021-2022, at Ghent University. The blogpost is based on E.G.D. van Dongen & A.L.M. Keirse  ‘The Netherlands’, in: E. Karner & B.C. Steininger (eds.), European Tort Law 2021, Berlin/Boston: De Gruyter 2022 (forthcoming).

Dit bericht werd geplaatst in Beweging in het Aansprakelijkheidsrecht op door .
Anne Keirse

Over Anne Keirse

Anne Keirse is hoogleraar burgerlijk recht. Haar onderzoek richt zich op het Nederlandse en Europese verbintenissenrecht. Het accent ligt daarbij op het terrein van het aansprakelijkheidsrecht, het contractenrecht en het schadevergoedingsrecht. Rechtsvergelijking is een speerpunt van haar onderzoeksbeleid en in aansluiting op haar tweede studie in de filosofie en psychologie betrekt zij ook resultaten van andere disciplines in haar onderzoek. Het is één van de ambities van Anne Keirse om te ontdekken wat het (Europees) verbintenissenrecht van morgen is. Zij wil ertoe bijdragen dat het verbintenissenrecht wordt ingezet niet alleen om maatschappelijk ongewenst gedrag te sanctioneren, maar met name ook om voor de toekomst gewenst gedrag te faciliteren.

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