11 Summary

This thesis analyzes non-pecuniary damages with five specific issues in mind. First, the thesis explores the functions of payment for non-pecuniary damages. Second, the thesis identifies the circumstances under which one is currently entitled to receive payment for non-pecuniary loss and proposes additional situations that should entitle one to an award of non-pecuniary damages. Third, the thesis explains how courts currently arrive at the amount of non-pecuniary damage awards and proposes a set of factors that should guide those decisions in the future. Fourth, the thesis examines whether the rules concerning pecuniary damages should apply differently when claims for non-pecuniary damages are at issue. Finally, the thesis argues that typically claims for non-pecuniary damages do not warrant a different approach to issues concerning interest on damages, assignment, survival, attachment and bankruptcy.

Chapter 2 explores the functions of awards for non-pecuniary damages. Based on an examination of the parliamentairy history of current Dutch law concerning damages, German law, and the law of some Anglo Saxon countries, the thesis concludes that compensation is the key justification for non-pecuniary damage awards. This purpose provides the best foundation for further elaboration of the right to non-pecuniairy damages. The law of these various jurisdictions indicates that the amount of non-pecuniary damages awards is determined by a valuation of the loss, and that there is no compensatory rationale that supports awards of non-pecuniary damages to persons in coma or to corporate bodies.

Chapters 3 through 6 examine the question of what circumstances should entitle one to an award of non-pecuniary damages. According to Dutch law, the victim has a claim for non-pecuniary damages - in contrast to pecuniary damages - only if the law explicitly grants such a right (article 6:95, Dutch Civil Code).1 Chapters 3 and 4 examine the scope of this rule. Article 6:106 BW is the main article that establishes the right to non-pecuniary damages. It limits that right to situations in which the tortfeasor had the intention to cause non-pecuniary damages, to situations of physical injury, defamation and 'other injuries to the person', and of injury to the reputation of a deceased person.

Chapter 5 examines the 'open' category of 'other injuries to the person'. This chapter advocates a right to non-pecuniary damages under this open category in cases of serious mental illness (a recognised psychiatric illness) and in cases of serious injuries to personality rights such as for instance the right to physical integrity, the right to privacy and the right to freedom. The open character of this category thus provides the opportunity to address future developments.

Current Dutch law does not recognise a claim for non-pecuniary damages in case of death or injury of a beloved. Chapter 6 advocates the recognition of such a right to a limited group of persons and proposes that te amount of such damage awards should not exceed Dfl. 20.000 per person.

Chapter 7 examines the methods by which courts can arrive at the amount of non-pecuniary damage awards. In this respect, the thesis draws a distinction between the choice of relevant factors and the choice of the actual amount. The compensatory function of non-pecuniary damage awards suggests that the amount should be based on a valuation of the loss. Equity, however suggests that like cases should be treated alike. This chapter advocates that a method of valuation of different types of injuries would be beneficial and should be developed by a special committee. Psychiatric injuries warrant a similar approach. In cases of injury to personality rights the thesis proposes a multi-factor approach that assesses the nature of the injured interest, the method by which the injury was achieved, and the relevance of other sanctions.

The largest award of non-pecuniary damages yet awarded by a Dutch court is Dfl. 300.000 in 1992 in a case involving negligent contamination with the Aids virus. The expectation that this would give rise to a higher level overall has not materialized, as non-pecuniary damage awards since have typpically not exceeded Dfl. 150.000. This is considerably lower than the largest awards in England and Germany. However, that can not be said of all awards in other cases than the most severe. Although fixing the 'appropriate level' is largely arbitrary, more orientation on an average level of non pecuniary damages in Europe is conceivable.

Chapter 8 examines whether the rules concerning damages, such as causation, collateral benefits, contributory negligence and mitigation, should apply differently to claims for non-pecuniary damages. The thesis concludes that these aspects of damage awards should be separated from the assessment of the non-pecuniary damage awards and that there is no good reason to treat non-pecuniary damages differently from pecuniary damages with respect to these issues.

Chapter 9 addresses the legal characteristics of the claim for non-pecuniary damages. The thesis of this chapter is that the statutory restrictions concerning survival of the claim, et cetera should be abandoned and that non-pecuniary damages claims should not be treated differently from pecuniary damage claims with respect to these issues.