Imagine a healthy 20-something-year-old with an active lifestyle, rendered paralysed by an accident with no fault of his own having to undergo the trauma of having to adjust to a new lifestyle, unable to perhaps pursue the dreams he once had to become a football player, unable to drive himself, and rendered dependant on others for the rest of his life.
Is it justice that only his financial losses and possible future earnings are considered as sufficient compensation under the present laws?
Or imagine an involuntary accident where the victim is physically well but is left only with psychological trauma, severely affecting his psyche and his quality of life. Should there not be compensation for that?
Moral damages do exist in areas of law such as consumer claims, intellectual property and breaches of constitutional rights. In tort law, however, article 1045 of the Civil Code was only recently amended in 2018 to provide for moral damages compensation in cases when the act arises out of some voluntary criminal offences and are capped at a maximum of €10,000.
The present system of compensation based on tort law is the restoration of a person’s situation back to what it was, had the incident never occurred, what in Latin is known as restitutio in integrum, meaning the restoring of the situation into precisely what it would have been with the compensation covering expenses incurred, loss of earnings and loss of future earnings. However, one has to ask, does this actually do justice to the concept of what restitutio in integrum is supposed to mean?
The premise of restitutio in integrum is literally to restore in its totality, but the fact is that in reality what is being restored by Maltese courts is simply limited to pecuniary losses. While restoring the plaintiff into the situation he was in, prior to the accident, this is done only financially.
In a world where mental health has taken a forefront in social media awareness and is also considered by the World Health Organisation to be an integral part of the health of the person by its constitution, whereby it is stated that “health is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity”, shouldn’t moral damages also be awarded in order to compensate the victim for the accident which may have caused psychological trauma or post-traumatic stress disorder (PTSD)?
As one court stated, in relation to damages of the person, Maltese laws are still quite medieval
Some people never return to their old selves after an accident, so these must be duly compensated too. Therefore, the question is, why did the Maltese legislator limit this to those damages arising out of only some voluntary criminal offences? Or was this simply meant as a punitive award against the perpetrator?
While perhaps the concept behind this may have been that such criminal offences were committed voluntary and with malicious intent, when there is no voluntary will or mens rea behind an accident, the fact remains that people’s lack of attention to act like a bonus paterfamilias should likewise award compensation to the involuntary victim in cases where there are psychological ramifications to his health. The local courts have been pushing for such moral damages ever since the 1967 landmark judgment of Butler vs Heard, whereby the court had come up with a way to quantify the pecuniary losses by a mathematical formula, which formula has remained unchanged for the past 60 years.
In fact, there were quite a few judgments which sought to award moral or psychological damages notwithstanding the rigid interpretation article 1045 was being given by the courts. As one court stated, in relation to damages of the person, the Maltese laws are still quite medieval, which begs the question to the Maltese legislator: why not expand moral damages in such cases?
Of course, the introduction of these moral damages would open up a whole new set of questions. Should the moral damages for involuntary accidents be capped like they are for voluntary offences? Should the legislator be the one to introduce a formula akin to that developed by the court in the landmark judgment of ‘Butler v Heard’ or should it leave the awarding of compensation up to the discretion of the courts and simply trust that they will award a fair and just compensation?
Capping moral damages in such cases should be avoided. Moral damages represent a financial compensation for things which are generally considered as invaluable, such as no longer being able to do the things one loves, have intimate relations or play with one’s children. While one can hardly put a price on those experiences, one certainly cannot cap their value at €10,000 like the legislator has already done in cases of voluntary offences.
The present capping at €10,000 implies that the legislator has put a definite price on the emotional distress caused by the loss of someone dear, which apparently does not exceed €10,000. One has to wonder if putting this price on the loss of human life is something which can be done in good conscience.
Rosemarie Farrugia, Partner, Cauchi Farrugia Advocates