THE LIABILITY OF AN EMPLOYER IN THE CASE OF AN ACCIDENT
Accident followed by a ‘sex drive’
According to the 13 December 2006 edition of Times On Line, a Christian newly-wed has filed a £3.5 million compensation claim against his employers, saying that his marriage was ruined because his sex drive spiraled out of control after he injured his head at work. He claims that the accident led to severe sexual disinhibition, which is destroying his marriage. In September 2005, judgment was entered in favor of the victim on the basis of 100 per cent liability. The judge must now decide how much compensation to award.
Suppose the laws of the Netherlands Antilles would be applicable, what can be said about this claim.
As far as the Netherlands Antilles Civil Code (‘CCNA’) is concerned, the articles 6:95 and 6:106 provide for the legal basis for claiming emotional damages. Article 6:95 CCNA states that damages which have to be compensated as a result of a statutory obligation consist of i) financial loss or ii) other disadvantages. Pursuant to article 6:95 CCNA these ‘other disadvantages’ can only be compensated in case the law provides for a legal basis for compensation. Article 6:106 CCNA indicates when a right to ‘other disadvantages’ exists. Pursuant to article 6:106 sub 1 under b CCNA an injured party is entitled to ‘other’ compensation if he has suffered (among other things) physical injury. The amount of the compensation will be determined on the basis of reasonableness and fairness.
A distinction should be made between physical injury and mental injury. Physical injury covers various cases. Not only cases of tissue damage fall within the scope of physical injury, but also infections and illness or physical deterioration as a result of medical treatment fall under physical injury. In general mental injuries are different from physical injuries. However, mental injuries that result from physical injury (e.g. loss of memory) however do fall within the scope of physical injury. On the other hand psychological effects resulting from a harmful event which did not result in a physical injury are not eligible for compensation on the basis of physical injury (e.g. emotional damage as a result of shock).
The Netherlands Supreme Court has ruled that a court, when determining the amount of compensation, has to take into account the amounts of compensation that are granted in similar cases. A few Dutch court cases:
Court of Rotterdam, June 1, 1985
As a consequence of malpractice a house wife (56 years old) got totally incapable for work because of heavy disturbance of the vocal cords, respiration and lung functions. Granted emotional damages: approx. Euro 28,000.
Court of Appeal Leeuwarden, July 1, 1998
X, 54 years old, has become impotent and infertile as a consequence of malpractice. Granted emotional damages approx. Euro 35,000.
An important question, at least in my opinion, would be whether the ‘sex drive’ is related to the accident giving rise to liability in such a fashion that the damage, also taking into account its nature and that of the liability, can be imputed to the employer as a result of the accident (art. 6:98 CCNA). My answer would be ‘no’.
Karel Frielink
Attorney (lawyer) / Partner
Up-date (19 December 2006)
Today, the employee has been awarded £3.1 million in damages in the High Court.
