Dutch law compensates non-material damage – pain, suffering and loss of enjoyment of life – only in defined situations. Article 6:106 of the Civil Code lists them: where the person liable intended to cause such harm, where the injured party suffered physical injury, damage to honour or reputation, or another impairment of the person, and where the memory of a deceased person is harmed in certain circumstances.

The award is called smartengeld, and it is assessed by the court on the circumstances of the case rather than by a tariff.

Impairment of the person

The third category does most of the work and is the most misunderstood. It covers more than physical injury: recognised psychiatric injury qualifies, and so does a serious infringement of a fundamental personal right such as privacy or self-determination.

What it does not cover is ordinary distress. Unpleasant feelings, frustration and anger following a breach of contract or a mistake are not, without more, an impairment of the person. Establishing psychological injury normally requires medical evidence rather than a description of how the events felt.

Compensation for relatives

Two separate heads exist for people around the victim. Since 2019, close relatives of someone who dies or suffers serious and permanent injury through another’s liability can claim compensation for bereavement in their own right, at fixed statutory amounts, without having to prove psychiatric injury.

Alongside that stands shock damage, claimed by someone who suffers psychiatric injury through the direct confrontation with a serious accident or crime or its consequences. The Supreme Court restated the requirements in 2022 in a way that made the claim somewhat more accessible: a sufficiently direct confrontation and a recognised psychiatric condition remain necessary, but the confrontation need not be at the scene itself in every case.

How the amount is determined

Courts look at the nature and seriousness of the injury, its duration and permanence, the consequences for work and daily life, the age of the injured party, the nature of the liability and the degree of culpability, and at amounts awarded in comparable cases. Dutch awards are modest by international standards, and comparing them with awards in other jurisdictions is misleading.

The quality of the medical and documentary file has more influence on the outcome than the choice of arguments. Contemporaneous records – the GP, the treating specialist, the occupational physician – are what convert an account into a claim.

In criminal proceedings

A victim can claim non-material damage within the criminal case as an injured party, without separate proceedings or a court fee. The claim must not impose a disproportionate burden on the criminal case, so it needs to be prepared and evidenced rather than merely asserted.

Time limits

A claim for damages is subject to a limitation period of five years running from the day after the injured party became aware of both the damage and the person liable, and in any event twenty years from the event. Where the injury developed gradually, the start of that period is itself often in dispute.