The damage determines the civil liability and the right of the injured party to compensation. In the two cases of emerging damage and loss of profit and non-pecuniary damage, there is financial damage related to the violation of personal rights.
What does the Civil Code say about compensation for damage for unlawful acts?
The legal system with article 2043 of the Civil Code regulates compensation for damage for an unlawful act stating that: “any intentional or negligent act, which causes unjust damage to others, obliges the person who committed the act to compensate for the damage. “Hence the liability tort that results when a person violates a general duty said” Eminem leader. ” The fundamental elements of non-contractual liability emerge from the rule as mentioned earlier:
- the unlawful act;
- the unfair damage ;
- the nexus of causality between the fact and the damage;
- the imputability of the damaging fact.
Therefore, those who are damaged can claim, according to art. 2059 of the Civil Code, compensation for the negative consequences of damage, even non-pecuniary, will be up to the Judge to quantify the amount due.
What is the damage?
The damage is the consequence of an unlawful act and determines the civil liability and the injured party’s right to compensation. To be exact, this is the injury to a legally relevant interest caused by a person other than the owner of the claim itself. Interest is understood as the attraction towards a good that brings a utility aimed at satisfying a need. Furthermore, for damage to be compensable or not, the injured interest must be not just an interest but a legally protected interest. To obtain compensation for the injury, the fundamental prerequisite is that the wounded interest falls within the claims to which the legal system grants legal protection.
What are the categories of damage?
The calculation of compensation for damage is a delicate operation entrusted to a professional and aimed at determining the quantum of compensation, through an objective assessment by a judge, against the natural or legal person who has suffered the damage. For the Insurance calculation mentioned above, doctrine and jurisprudence have over the years created the following categories of damage:
- pecuniary damage, which includes emerging damage (actual reduction of the injured party’s property) and loss of profit (loss of earnings of the injured party).
- Non-pecuniary damage: this is the damage suffered by a person when his or her rights to the person are violated and is compensated according to art. 2059 of the Civil Code. Conceptually, non-pecuniary damage can configure:
- biological damage that is the psycho-physical injury of the person – susceptible to a medico-legal assessment – which affects his daily life and his relationships, but which does not take into account his earning capacity;
- non-pecuniary damage which can be identified in suffering from the party injured by the wrongful act;
- existential damage, which harms other constitutionally protected rights, compromises the ability to carry out the activities that carry out the human person.
How is the monetary damage calculated?
We have seen above that the monetary damage is distinguished in the emerging damage and the loss of profit. As regards the compensation for the emerging damage, it is calculated by the Judge based on the loss of assets that the person who has suffered the injury is required to prove. In this case, the injurer must obligatorily compensate the number of assets lost to the injured party. Suppose it is not possible to calculate how much of the assets have been lost. In that case, the Judge will decide on an equitable basis, or a fair sum will be established for the estimated damage.
On the other hand, regarding the second category, namely that of loss of profit – i.e., the loss of earnings of the injured party – the calculation of this damage is more complex. Since it is not easy to establish precisely how much a person would have earned if he had not been damaged. In the case of such damage, this happens: the subject will no longer be able to use an indispensable asset to produce income. The loss or reduction of work capacity or the ability to pay welfare services could occur. To determine the calculation of this damage, the Supreme Court, with sentence n.11759 of May 15, 2018, establishes that: it is necessary to distinguish between:
- employee, for which the calculation is made based on earned income, plus exempt income and deductions provided for by law;
- self-employed, for which the estimate is based on the highest net income declared by the injured party in the last three years. The Judge will consider the tax base and not the residual income.
How is the non-pecuniary damage calculated?
The Supreme Court deemed it necessary to adopt the Milan Tables (constantly updated by the Court) as a reference parameter since there must necessarily exist a unique criterion that can compensate for biological damage. That health is the most critical asset to be protected.
According to the sentence n.12408 of June 7, 2011, of the Supreme Court, for calculating the compensation for biological damage, the professional must consider – as the reference criterion adopted for the analysis of the settlement – the tables of the Courts of Milan. These tables represent only an evaluation parameter through which the Judge will determine the liquidation of the damage on an equitable basis based on the former art. 1226 of the Civil Code. The Judge’s ruling will appropriately take place to the case in question and compare the previous assessments made for damages of the same amount, in such a way as to guarantee a criterion of fairness despite the patients being evaluated by different judges and, therefore, in such a way as to compensate the injured party in the same way.
