Despite roughly dating back to the ancient law of Rome, moral and psychological damages have proved to be difficult in merely defining, let alone in compensating. Numerous attempts have been made in doing so. Italian jurist Giorgio Giorgi appropriately stated that whilst for patrimonial damage there is always a basis for valuation, it is not the case for non-pecuniary (that is, moral or psychological) damage: “Finché si tratta di danni patrimoniali, una base di valutazione si trova sempre: perché tutto ció che fa parte del patrimonio é suscettivo di stima pecuniaria. Non cosí peró quandi si tratta di danni morali”.
The notion of compensating moral and psychological damages in our country has always been subject to the interplay between the legislator and the adjudicator. Prior to the 2018 amendments to article 1045 of the Civil Code, the courts had found ways and means to compensate for non-patrimonial harm by referring to legal doctrine by way of attempting to create a mere possibility close to achieving restitutio in integrum.
Act XIII of 2018 had briefly disturbed this assumption by expressly introducing moral and psychological damages for claimants who suffered damage arising from any criminal offence. Shortly after this, Act XXXII introduced a proviso which restricted the scope of article 1045 to include a capping and certain conditions as to who may claim such form of compensation. Now, the Proviso appears to be at odds with prior court decisions, literature, research and legislative proposals which all seemed aimed at enhancing the scope of damages compensating for non-patrimonial harm.
Undoubtedly, this left an adverse impact on the ordinary courts’ discretion; substantially restricting the possibility that it could be exercised to compensate for the non-patrimonial harm suffered by a claimant. A quick overview of the Proviso is sufficient to establish this point.
It is no secret that the ordinary Maltese civil courts were rather inconsistent in (indirectly) awarding moral or psychological damages as a form of non-patrimonial compensation due to the lack of explicit legislation recognising either forms of compensation prior to the recent amendments. Arguably, this could have been interpreted as excluding moral damage but nevertheless compensating moral damages. Nonetheless, the pressing need for the Maltese legal system to explicitly start recognising such claims was never abandoned.
Therefore, following Act XXXII, the Proviso to article 1045 theoretically became a mechanism which fundamentally generates the framework whereupon a claim for both moral and psychological damages as such could be expressly made. In simple terms, moral and psychological harm are now expressly compensable as such in cases where the claimant was a victim of a criminal offence affecting the dignity of the person and/or a wilful crime against the person. Moreover, the Proviso states that such compensation may not exceed €10,000 — although such maximum limit may be amended by the Minister responsible for Justice by means of regulations; as may be the method of computing the method of calculation.
Given that our Civil Code had never expressly provided for non-patrimonial compensation for delictual or quasi-delictual damage until the enactment of Act XIII, the “good will of the judge” (Brincat and Others vs. Malta, App. No. 60908/11, §61) was resorted to arbitrio boni viri in order to find various kinds of roots such as loss of joie de vivre (Louis Spiteri et vs. Citadel Insurance plc et, First Hall Civil Court, 3 October 2018) and existential damages (Isabelle Debattista vs. Carmel Attard, First Hall Civil Court, 27 November 2013; pending appeal) to indirectly compensate such damage.
At first, it seemed rather unclear whether these roots championed by the courts will remain viable after these amendments, especially since these practices were motivated by the consideration that our law of tort did not expressly prohibit the compensation of non-patrimonial damage and that “Every person, however, shall be liable for the damage which occurs through his fault”, hence granting the courts discretion to interpret article 1045 in a constitutionally compatible manner.
Recently, in the case of Joanna Hili vs. John Martin et (First Hall Civil Court, 12 January 2021) the Court noted that although the newly enacted Proviso does not apply to the case in hand because it came into force after the incident, it questioned whether (independently from the Proviso to article 1045) the plaintiff qualifies for psychological damages. In answering its own question, the Court stated: “Ċertament, il-ħsara psikika jistħoqqilha kumpens iktar mill-ħsara fiżika minima li ma tħalli l-ebda effett funzjonali, la psikiku u lanqas fuq il-ħajja lavorattiva”.
The mechanism which emanates from the Proviso is yet to be applied by our courts, considering that it came into force only recently. However, the above-mentioned judgment seems to acknowledge the diminution of the adjudicator’s discretion whilst yet acknowledging that moral and/or psychological damages should be compensated at all costs.
Insofar as the current law stands, however, the courts do not possess the ability to provide an ordinary remedy of non-patrimonial compensation to a young boy whose leg has been amputated as a result of a practitioner’s negligence (as was the case in Victor Savona pro et noe vs. Dr Peter Asphar et, Court of Appeal, 23 June 1952) or to a traffic accident victim who cannot go on with his normal healthy life (as occurred in Trevor Grech vs. Lawrence Agius, First Hall Civil Court, 17 October 2018).
Jurgen Micallef is a Paralegal at PROLEGAL Advocates.
Disclaimer: This article is not to be construed as being legal advice, and is not to be acted on as such. Should you require further information or legal assistance, please do not hesitate to contact Jurgen Micallef at firstname.lastname@example.org.