The Price of Sadness: Comparison between the Netherlands and South Africa

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.

Keywords: Affectieschade, Bereavement, Causation, Damage, Damages, Delictual liability, Emotional shock, Germanic action for pain and suffering, Limitless liability – curtailing of, Persistent Complex Bereavement Disorder, Post-traumatic stress syndrome, Psychiatric injury, Shockschade, Wrongfulness