A traumatic experience may not always leave any visible physical traces, and to the inattentive observer, a victim of crime may not be seen as having suffered much unless he has body scars to show.
In the past, our society has largely been guilty of placing unnecessary emphasis on physical disability caused by a crime, and not so much on the rest. Fortunately, we have evolved and so did our courts.
We have finally started to legitimise mental health as a real concern and to care for it accordingly. We have begun to understand that psychological damage is real and our law of tort has started to take small steps to free itself from its past desensitisation of psychological harm, and to allow the courts to grant compensation for moral and psychological damages.
In fact, in 2018, our law formally introduced (through an amendment of article 1045 of the Civil Code) moral and psychological damages in our ordinary law; today, in the case of damages arising from a certain class of criminal offences, the damage to be made good by the ordinary courts shall also include any moral harm and/or psychological harm caused to the claimant.
There is an important catch − the amount to be awarded as moral or psychological harm may not be more than €10,000. It is unclear why the legislator opted to place this limit and how it can be justified to those whose pain and suffering far exceeds what can be restored through the payment of this sum. This law offers something but not nearly enough.
Furthermore, the law (as well intentioned as it was) inadvertently created a legal problem that our courts have yet to face. This is because even before this law was introduced, our courts started to acknowledge psychological damages as real harm capable of being quantified in a percentage of disability (on the advice of a court expert), just like it does with body disability (the formula is: percentage of disability X average salary X work-life expectancy X further considerations, according to the case).
So, prior to the law of 2018, we have seen courts awarding psychiatric damages based on a percentage of disability, sometimes to the tune of thousands of euro. We have seen courts awarding psychiatric damages in sums totalling to more than €10,000, even if the harm did not arise out of a criminal offence.
There was no law limiting the courts and our courts were free to award psychological damages as proper physical damages. Now, under the new 2018 law, psychological and moral damages may only be awarded if they arise out of a certain class of criminal offences and only up to the sum of €10,000. This means that a law that sought to allow the courts to award more damages may ultimately force them to award less, as the law places limits which prior to 2018 did not exist. Ultimately, it purported to giving more it may end up granting less.
This brings us to the judgment of ‘A vs B et’ (names are being omitted due to the sensitivity of the facts of the case), delivered by the Civil Court, First Hall on January 12 (373/2008/GM). The plaintiff recounted that when she was still a minor, she had engaged into a sexual act with one of the respondents, which was recorded on tape. The video clip made its way to a DVD shop and was extensively circulated. She said that because of this, she suffered permanent psychological damages but no ‘body’ damage. She asked the court to order the respondents to pay damages.
Moral damages are relatively abstract because they cannot be understood in terms of a pecuniary loss
The facts of the case preceded the enactment of the 2018 law providing for moral and psychological damages, and thus, the ‘new formula’ was not applicable. This notwithstanding, did the plaintiff have the right to claim psychological damages?
The respondents said ‘no’.
The court disagreed.
It traced the history of our law of tort and stated that since the very beginning, the law did not express any exclusion of moral damages from our system of laws. The law speaks about “the actual loss which the act shall have directly caused to the injured party, in the expenses which the latter may have been compelled to incur in consequence of the damage, in the loss of actual wages or other earnings, and in the loss of future earnings arising from any permanent incapacity, total or partial, which the act may have caused”. The key phrase is “actual loss”.
The court stated that the law does not say what actual loss really is, but our courts often stated that a loss is actual if it is economic or material, that is, a loss that can be quantified or verified. This is due to the fact that our courts have often interpreted the law in a restrictive manner. Moral damages are relatively abstract because they cannot be understood in terms of a pecuniary loss.
The few judgments that admitted ‘moral damages’ were those that considered the psychological effects of an incident as affecting the working capability of the person injured, that is, damages that are really and truly physical, albeit psychological. Such an exercise was often conducted with a sense of justice towards the harmed, which considered that psychic harm may lead to a loss of future earnings as much as physical harm. In this sense, the logic is that psychological harm is physical harm nevertheless. In short, psychological harm is real (or actual) loss.
In this case, the plaintiff had managed to overcome the tremendous trauma afflicted but still suffered from a psychological disability of six per cent. Applying the usual formula, the court ordered two of the respondents to pay the plaintiff the sum of €32,656.50, with interest.
The judgment is subject to appeal.
Carlos Bugeja is a partner at Azzopardi, Borg & Abela Advocates.