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Does exposure to COVID-19 give rise to an objective anxiety damage claim?

09/04/2020

Short introduction of anxiety damage claims

Anxiety is an existential part of being human. Since anxiety is a subjective perception, some humans are more affected by anxiety than others. Personal circumstances and predisposition can therefore increase the damage anxiety does to a person. The fact that anxiety is determined chiefly by subjective perceptions makes it difficult to define measurement criteria of anxiety to justify liability of an anxiety cause. Through the past decades, it has been the unanimous opinion of different legal authors and courts that certain kinds of caused anxiety should be eligible for compensation. However, Dutch case law did not provide a clear solution nor measurement criteria for this ethical matter until recently.

Dutch developments: the Earthquake case

The Dutch legal interpretation of anxiety-damage claims became a real issue in 2017 when inhabitants in the province of Groningen held the Dutch State's oil and gas company NAM liable for material and general damages caused by earthquakes alleged to be the result of gas drilling based on art. 6:177 DCC (“the Earthquake case”). Apart from actual physical damage to their homes, the inhabitants claimed compensation for their fear of future earthquakes. In regard to the latter, some inhabitants claimed compensation for mental disorders caused by the risk of earthquakes, but the majority sought compensation for the severe emotional distress they experienced (i.e. the “anxiety claim”).

According to Dutch law, one is entitled to claim damage compensation when a claimant can prove an impairment of the quality of life (article 6:106 sub b DCC: “op andere wijze in zijn persoon is aangetast”). Regarding an anxiety claim, this impairment can usually be proved with a psychiatric declaration that the claimant suffers from mental illness caused by anxiety. The Dutch Court of Cassation determined in 2012 that claimants who do not suffer from mental illness might also be entitled to claim compensation for general damages, but the anxiety claim was rejected in this case.

The Court of Cassation determined in July 2019 in the Earthquake case that if the claimant of an anxiety claim does not suffer from mental illness, it must be proved that the nature and severity of the violation of standards, including its consequences, objectively qualify as an impairment. These claimants must provide specific proof and facts about any impairment of quality of life. In that respect, proof of being an inhabitant of an earthquake-risk area where damages frequently materialise in combination with a personal declaration of emotional distress will not automatically be regarded as sufficient. However, this could be different where the detrimental effects of severe earthquakes for inhabitants of a certain risk area are obvious. 

Following this judgement, the Dutch Court of Arnhem-Leeuwarden specified these rough guidelines for anxiety claims in the Earthquake case in its judgement of 17 December 2019. The court made a distinction between two different kinds of immaterial anxiety claims: anxiety-damage claims based on mental disorders, and anxiety damage claims that are not based on mental disorders (i.e. an “objective anxiety claim”). In both situations, a claimant can be entitled to compensation.

Claimants with mental disorders can easily prove their damages by offering the court a declaration of a psychiatrist. The objective anxiety claims, however, must be proved with facts that reflect the obvious negative emotional consequences of frequent earthquakes. With reference to an extensive investigation by the University of Groningen and the Dutch Social and Cultural Planning Office, the court determined a causal link between the experience of material damage to one’s home and emotional distress. Researchers found that emotional distress is even more severe in cases where one’s home has been damaged multiple times by an earthquake. Clearly, the normal lives of people are severely disrupted when facing multiple instances of material damage to their homes as a result of earthquakes. Hence, those people affected are entitled to claim compensation for their objective anxiety claim.

Bearing in mind the relatively low awarded figures for general damages in the Netherlands, the court ruled that in this specific case an amount of at least EUR 2,500 is reasonable compensation for an objective anxiety claim. This amount can be increased based on the individual facts and circumstances of a claimant, such as if a claimant suffered material damage to his house more than twice due to an earthquake.

Practical consequences

Compensation of objective anxiety damage claims is now officially approved in the Netherlands. This seems to be in line with legal developments in other jurisdictions in Europe. The French Court of Cassation ruled in 2010 that employees who had been exposed to asbestos during their work at specific premises could claim compensation for the damage caused by their constant stress about the risk of developing an asbestos-related disease. In April 2019, the French Court of Cassation extended this rule to exposure to “any harmful substance”, even if claimants are not able to prove actual physical harm.

Although the Dutch judgment specifically relates to objective anxiety claims due to earthquakes, it seems reasonable to believe that other circumstances could also give rise to an objective anxiety claim. Following French case law, objective anxiety claims based on exposure to harmful substances such as asbestos or Chroom-6 are considered as feasible claims. Objective anxiety claims may also be possible in response to climate change or potential exposure to COVID-19. The latter could apply to employers such as hospitals or elderly care centres who do not fulfil their duty of care towards their employees by not providing them with adequate protective equipment. These risks should be taken into account during risk management and claims handling.

In terms of scope, we do not expect anxiety claims to exceed EUR 5,000, which represents the ‘lower’ categories of the Dutch General Damages Guide for Personal Injury (Smartengeldbundel).

For more information on this ruling and how it might apply to the COVID-19 crisis, contact your regular CMS advisor or the local CMS experts.

Authors

Picture of Eva Schothorst
Eva Schothorst - Gransier
Counsel
Utrecht
Lara-Lupgens-CMS-NL
Lara Lupgens
Advocaat
Utrecht