Abstract
The aim of this research is to consider whether the articles 6:107 and 6:108 BW should be reconsidered. These articles grant third parties an action to bring an independent claim against the tortfeasor in personal injury cases. The characteristics of these articles are threefold. First, these claims are derived from
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the liability towards the direct victim. Second, the actions are of a limited of nature. Finally, when the damage suffered by the third party is a consequence of the injury or death of someone else, these apply on an exclusive basis: a right to full compensation cannot be allowed on the basis of tort law. The main aim of these articles is to set clear boundaries for liability in personal injury cases. Someone is a ‘third party’ when his damage is caused by the death or injury of someone else. That direct nature is determined in fact, but that factual determination is followed by a normative conclusion: a factual third party cannot be awarded full compensation. In my opinion this is a mistaken starting point. The focus should be on the question whether a protected interest exists and whether the tortfeasor has infringed that protected interest. Next, from the perspective of private enforcement two questions should be distinguished. First, which third party damage should be compensated when the foundation is found in the liability towards the direct victim? Second, under which circumstances should the interest of third parties autonomously be protected by tort law? To start with the first question. The government has tried to expand the scope of the derived actions. In my opinion there is one argument against this solution: the fact that liability is founded on one party cannot be directional for the compensation of third party damage which cannot be qualified as the transferred loss. The tortfeasor is first responsible for the damage caused by his wrongful act towards the person against who liability exists. By making exceptions for the benefit of one type of third party or for one of his losses, boundaries will be difficult to explain and maintain. In my opinion another solution is more appropriate: answering the second question of enforcement. The necessity of making exceptions is mostly advocated in favour of next of kin. Decisive in concluding that the interest of family members should autonomously be protected is that I consider the interest of ‘direct family members’ to be the most protectable interest next to someone’s life and health. A family is a unit which forms the essence of someone’s personality. By taking someone from that unit or seriously injuring that person, a family member is directly forced to reconsider life choices. Tort law should facilitate the (new) choices which family members are forced to make. The essence of my conclusions is that the system of articles 6:107 and 6:108 BW should be reconsidered as far as its exclusive scope is concerned. General tort law should be decisive for someone’s position in tort law, not the factual cause of someone’s damage.
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