Moral damages?
Moral damages can be imagined in various situations, for example in the case of accident victims, after blows and injuries, defamation, stalking, or an accident at work. But what exactly is meant by moral damages?
Moral damage is a type of harm that cannot be monetised. People also often use the term extra patrimonial damage, as opposed to material or patrimonial damage. Material damage affects the injured party's assets, and is therefore always assessable in monetary terms. Moral damage is suffering, sorrow, pain, agitation, discomfort, etc. and can never be expressed in money, or redeemed by money.
How are moral damages compensated?
Since moral damages are by definition not monetisable, it is not obvious to monetise them. Some believe that awarding a sum of money can never alleviate moral distress. Rather, they see compensation for moral damage as a form of recognition or justice, with symbolic value. This does not alter the fact that moral damage is indeed a form of harm and is eligible for compensation.
Judges will always award the amount of moral damages on a case-by-case basis based on an ‘in concreto assessment’: they will take into account all the concrete facts and circumstances that had an impact on the suffering you suffered. In theory, the estimation of (moral) damages always presupposes a comparison between the victim's current state and the hypothetical state the victim would have been in had the harmful event not taken place. In practice, judges estimate damages according to fairness (‘ex aequo et bono’), in the absence of concrete budgeting options.
When someone suffers moral damage, for example due to pain, grief, or an infringement of personal integrity, that person may receive compensation in certain cases. However, not every form of emotional suffering automatically entitles one to compensation. Legislation and case law make a clear distinction in this regard.
1) The person whose physical or psychological integrity has been compromised
The first and most common category concerns the person who was directly affected themselves. This involves persons whose physical or psychological integrity has been compromised, for example by a traffic accident, violence, medical malpractice, or stalking.
Anyone who suffers physical or mental damage themselves is entitled to compensation because their personal integrity has been compromised. The victim is therefore central, as the damage stems directly from what has happened to them.
2) Persons who suffer a loss of capacity due to the suffering
It is not only the direct victim who can suffer damage. Sometimes the suffering also results in a person no longer being able to experience certain activities, experiences, or relationships in the same way as before. In that case, this is referred to as a loss of capacity.
That loss of capacity can also give rise to compensation. In practice, this is primarily recognized in the case of (quasi-)family members of the victim, for example when they lose a significant part of their family life, social life, or daily opportunities due to the situation.
Whether there is effectively compensable damage depends in each case on a concrete assessment of the facts by the judge.
Prepare your compensation claim well!
Precisely because judges award moral damages based on the equity principle, it is imperative that you prepare your damages claim very well, together with your lawyer. During this preparation, it is important for your lawyer to ask enough questions so that all useful facts and circumstances come to light that your lawyer can then work with to budget and justify the requested (moral) damages. It is also important to start preparing in good time. You should not wait at all until you receive a court summons. Timely preparation is everything!