COMPENSATION FOR ‘PAIN AND SUFFERING’ UNDER THE LAWS OF THE NETHERLANDS ANTILLES AND ARUBA
Emotional damages
In relation to emotional damages the Civil Code (“CC”) is applicable. The articles 6:95 and 6:106 of the CC provide for the legal basis for claiming emotional damages. Article 6:95 CC states that damages which have to be compensated as a result of a statutory obligation consist of i) financial loss or ii) other disadvantages.
Pursuant to article 6:95 CC these ‘other disadvantages’ can only be compensated in case the law provides for a legal basis for compensation. Article 6:106 CC indicates when a right to ‘other disadvantages’ exists. Pursuant to article 6:106 sub 1 under b CC an injured party is entitled to ‘other’ compensation if he/she has suffered (among other things) physical injury. The amount of the compensation will be determined on the basis of reasonableness and fairness.
When should a certain matter be considered a physical injury or mental injury? Physical injury covers various cases. Not only cases of tissue damage fall within the scope of physical injury, but also infections and illness or physical deterioration as a result of medical treatment fall under physical injury. In general, mental injuries are different from physical injuries. However, mental injuries that result from physical injury (e.g. loss of memory) fall within the scope of physical injury. On the other hand psychological effects resulting from a harmful event which did not result in a physical injury are not eligible for compensation on the basis of physical injury (e.g. emotional damage as a result of shock).
It is difficult to determine for which amount emotional losses have been suffered in a certain matter. The amount has to be determined on the basis of fairness. In this respect all relevant circumstances are of importance. However this does not mean that all circumstances are equally important.
Karel Frielink
Attorney (Lawyer) / Partner
