Abstract: The decision of the Hoge Raad was based on the following facts: On 9 April 1992, the Plaintiff allowed her five-year-old daughter to play outside. Whilst playing in the residential area in front of the Plaintiff’s property, the daughter was hit on the head by a taxi-bus reversing illegally. A neighbour saw the incident and immediately informed the Plaintiff who, at this time, was in the house and had not witnessed the accident herself. After notifying the emergency doctor, the Plaintiff then attended the victim who was lying on her stomach with her face towards the ground. At first, the Plaintiff believed there to be a pool of vomit beside her child. As she attempted to turn its head with her hand, however, she realised that the “vomit” was in fact her child’s brain and that, at this point, her hand was completely inside its skull.
In consequence, the Plaintiff suffered severe psychological trauma. Despite undergoing therapy a number of times, the Plaintiff remains in a stagnating process of grief. She suffers serious depressions and a post-traumatic disorder which causes her to relive the confrontation with her dead daughter time and again.
The Plaintiff demanded compensation from the insurance company of the taxi bus driver, who had since been convicted in criminal proceedings. She claimed both pecuniary damages (costs of therapy, medical expenses and legal costs) amounting to 5,800 gilders (approx. 2,600 euros) and appropriate compensation for non-pecuniary loss amounting to 100,000 gilders (approx. 45,000 euros).
The claim was dismissed by the Rechtbank Alkmaar. By contrast, the Gerechtshof Amsterdam admitted the claim in principle but set damages for pain and suffering at 30,000 gilders (approx. 13,500 euros). The Hoge Raad upheld this judgment dismissing the appeals both of the Plaintiff (i.e. the refusal to award damages for pain and suffering amounting to 70,000 gilders) and of the Defendant. In its judgment, the court drew a distinction between the damages (pecuniary and non-pecuniary) granted in respect of the psychiatric injury inflicted on the plaintiff by her direct perception of the situation described, and rejected so-called “emotional distress” (also called “injury arising from close ties of love and affection”), insofar as it was “merely” grief following the victim”s death. With regard to pecuniary compensation (5,800 gilders) and non-pecuniary compensation for psychiatric injury (30,000 gilders), the Court held that this loss had to be compensated in its entirety according to the law on delict (cf. Article 6:162 BW). As to whether psychiatric injury was recoverable, the Court said the following: “If a person causes a serious traffic accident by infringing safety or road traffic regulations then that person acts unlawfully not only towards the person who, in consequence, (1) is killed or injured but also towards the person who, (2) having witnessed the accident or directly perceived its aftermath, (3) suffers a violent emotional shock which, in turn, leads to psychological impairment. This can mainly occur in cases where (4) there are close ties of love and affection with the person killed or injured in the accident.” The court took the view that non-pecuniary loss in the form of psychiatric injury was recoverable in accordance with Article 6:106 (1) (b) BW, which, inter alia, allows compensation for pain and suffering in respect of physical injury by reference to the fact that the plaintiff displays symptoms of a recognised psychiatric illness. Compensation for pain and suffering in respect of non-pecuniary psychiatric injury was fixed at the 30,000 gilders awarded, as seemed fair and reasonable.
By contrast, the Court did not award damages for pain and suffering in respect of loss in the form of emotional distress, i.e. for the Plaintiff”s grief over the loss of her daughter. In this respect, the Hoge Raad stated that Article 6:108 BW conclusively determined who the European Review of Private Law