Abstract
Bereavement can be a precipitating and perpetuating factor for various psychiatric injuries. However, the normal experience of bereavement also causes significant disruption and stress in an individual’s psychosocial functioning. Both in the Netherlands and South Africa, a clear distinction is drawn between sadness and psychiatric injury. Dutch law, until recently, did not make provision for compensation for sadness, but only for psychiatric injury. This has changed with the coming into operation of the Wet Affectieschade on 1 January 2019. In terms of South African law, there is no claim for compensation for sadness or bereavement. The authors are of wby bereavement, sadness or grief resulting from bereavement causes significant distress and a continuum exists between normal and complex bereavement where a clear distinction does not exist. South African courts should, therefore, bear this is mind when in actions for compensation for non-patrimonial loss for bereavement.
Highlights
In the Netherlands the courts have for many decades drawn a distinction between two types of non-patrimonial loss, namely shockschade, for which compensation could be claimed in terms of article 6:106 of the Burgelijk Wetboek,1 and affectieschade, which was not actionable.2 Shockschade involves more than sadness
When [bereavement and an episode of MDD] do occur together, the depressive symptoms and functional impairment tend to be more severe and the prognosis is worse compared with bereavement that is not accompanied by Major Depressive Disorder [and that] bereavement-related depression tends to occur in persons with other vulnerabilities to depressive disorders, and recovery may be facilitated by antidepressant treatment
Bereavement could lead to the onset of Acute Stress Disorder or Posttraumatic Stress Disorder (PTSD), if the death of the person happened in a way that could be considered a trauma to the bereaved, either by way of experiencing a traumatic incident alongside the deceased, witnessing, or learning about the traumatic incident in which the person died
Summary
In the Netherlands the courts have for many decades drawn a distinction between two types of non-patrimonial loss, namely shockschade, for which compensation could be claimed in terms of article 6:106 of the Burgelijk Wetboek, and affectieschade, which was not actionable. Shockschade involves more than sadness. The decisions of the Hoge Raad (Dutch Supreme Court of Appeal) in the Jeffrey and Baby Joost cases, in which the parents were denied compensation for non-patrimonial loss for affectieschade, started the long process towards amending the legal position to allow for compensation for this type of loss.. The decisions of the Hoge Raad (Dutch Supreme Court of Appeal) in the Jeffrey and Baby Joost cases, in which the parents were denied compensation for non-patrimonial loss for affectieschade, started the long process towards amending the legal position to allow for compensation for this type of loss.7 Lindenbergh describes this as the biggest change in the law of damages since the New Civil Code came into operation.. This note is concerned with non-patrimonial loss claimed in terms of the Germanic action for pain and suffering
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