What are loss of affection damages

Loss of affection damages do not compensate financial loss, but emotional harm. They relate to the grief experienced by relatives when someone with whom they share a close relationship is seriously injured or passes away.

The law applies a fixed group of eligible claimants, as well as fixed compensation amounts. Not everyone automatically qualifies. Eligible persons include spouses, registered partners, life partners, parents and children. Siblings are not included as a standard category, although in exceptional cases they may rely on a hardship clause.

Because the compensation is fixed, legal discussions usually do not focus on the amount itself, but on whether the legal requirements have been met.

“There should be more room for a forward-looking assessment of the permanent nature of the injury, particularly in cases involving long-term psychological harm.”

The challenging legal threshold

The legislator has attempted to provide guidance on what constitutes serious and permanent injury. A functional impairment of around seventy percent is mentioned as an important indication. While this percentage is not absolute, it does serve as a reference point.

In addition, serious injury may also exist in cases involving significant behavioural changes, severe memory loss, aphasia or situations in which a person becomes largely dependent on intensive care.

The requirement of permanence means that there is no realistic prospect of meaningful recovery. This is where difficulties arise in practice. In many cases, particularly at the time of a criminal hearing, no final medical condition has yet been established. As a result, it remains unclear whether the injury will prove to be permanent.

Criminal courts often consider further medical investigation too complex within the scope of the proceedings and therefore declare the claim inadmissible.

What case law shows

The case law analysed in this publication mainly consists of criminal cases. Only a limited number of claims were awarded. In most cases, claims failed due to insufficient clarity regarding the permanent nature of the injury.

This is particularly evident in cases involving psychological harm. Claims based on post-traumatic stress disorder, panic attacks, sleep disturbances and severe psychological distress following violence or sexual abuse were frequently declared inadmissible. Courts often concluded that it had not yet been established that the injury was permanent, or that further evidence would place too great a burden on the criminal proceedings.

The same pattern can be seen in cases involving serious physical injuries. Even where the severity of the injury was undisputed, claims were not always successful. Courts regularly emphasised that it could not yet be determined to what extent the injury would result in permanent impairment.

Claims were mainly awarded in the most severe cases, such as permanent brain injury, paralysis, severe neurological damage, complete dependency on care or situations where 24-hour assistance was required. In these cases, there was no realistic prospect of recovery.

Why this is difficult for families

For relatives, this strict legal distinction can be difficult to understand. The impact of a serious incident is often immediate and profound. Daily life changes drastically, even if doctors are not yet able to determine the final medical outcome.

The publication shows that courts tend to focus primarily on the injured person and the medical status of their condition. Less attention is given to the impact on relatives, even though this is precisely what loss of affection damages are intended to address. As a result, the practical application of the law remains limited.

Sexual abuse requires special attention

The publication pays particular attention to cases involving sexual abuse. Psychological harm resulting from such experiences is not easily classified as serious and permanent injury within current case law. This often leaves relatives without compensation.

This is remarkable, as scientific research demonstrates that sexual abuse frequently leads to long-term and severe psychological harm, including chronic post-traumatic stress disorder, depression, personality disorders and lasting difficulties in relationships and physical intimacy.

These consequences may persist throughout a person’s life, even if this is not yet fully established from a medical perspective at an early stage.

For that reason, the publication argues that there should be more room for a forward-looking assessment. Rather than waiting until the medical situation is fully settled, courts could assess whether it is already sufficiently plausible that the injury will have a permanent character.

What this means for relatives

The key takeaway from this case law is that the requirement of permanence is often decisive. This makes claims for loss of affection damages in criminal proceedings particularly challenging, as these cases are often heard before the medical situation has stabilised.

For victims and their relatives, this highlights the importance of strong medical evidence. At the same time, it raises the question of whether current legal practice fully reflects the purpose of the law, which is to acknowledge the profound impact that serious injury has on the lives of loved ones.

Conclusion

The introduction of loss of affection damages represents an important step in recognising emotional harm. However, case law shows that this recognition often depends on whether the permanent nature of the injury can already be established.

This is especially problematic in cases involving psychological harm and sexual abuse. In such situations, there is a strong argument for a more flexible approach, one that not only considers medical end states but also the real and lasting impact on victims and their families.