Damages are the remedy that a party requests the court award in order to try to make the injured party whole.
Typically damage awards are in the form of monetary compensation to the harmed party. Damages are imposed in civil or even in criminal cases (if the crime victim claims them formally) if the court finds that a party violated some right.
Damages in the Italian legal system also include both material, such as expenses and loss oof profit, and immaterial damages, such as damages to health or another right. Italian legal system does not know "punitive damages".
If a foreigner wants to sue for damages, it is also necessary to take into account the so-called principle of reciprocity established by Italian laws, according to which foreigners can, in principle, sue in Italy for those rights to which an Italian citizen is also entitled in the foreigner's country of origin. In other words, the foreign citizen is granted only those rights that would be granted to the Italian citizen in the opposite case (the principle dates back to 1942 and is now severely limited by EU legislation and jurisprudence).
1. MATERIAL DAMAGE
The material damage can consist in loss of earnings (lucrum cessans) and in expenses (damnum emergens): it should be noted that the material damage can be compensated only if evidence is provided (invoices, witness statements, ...).
The new Insurance Code lists in Art. 137 of the Insurance Code the criteria of compensation for loss of earnings.
It is based on the traditional evidence for determining the income of employees/officials or the turnover of freelancers, namely on the documents that are relevant for the tax offices in the context of the respective tax returns. Such documents can sometimes be problematic for foreign beneficiaries.
2. IMMATERIAL DAMAGE: DAMAGE TO HEALTH, COMPENSATION FOR PAIN AND SUFFERING
The injured party may claim compensation for immaterial damage suffered, e.g. due to an injury to health (health damage), freedom or other fundamental right under constitutional law (existential damage).
1.THE "DAMAGE TO HEALTH" (DANNO BIOLOGICO)
The health damage is the sum of all psycho-physical impairments of a person, which go beyond the typical property damage and the spontaneously felt pain, and which are exclusively ascertainable by means of forensic medical evaluation (i.e. by a forensic physician) and are thus compensated independently of their effect on the earning capacity of the injured party.
Biological damage is compensated for both temporary and permanent impairment (invalidità temporanea and invalidità permanente, respectively).
In order to measure (and compensate) this damage, the so-called table system has been established for some time.
Two are the most important criteria for the classification and determination of the 'biological damage': on the one hand, the separation between slight permanent invalidity (up to 9 percentage points) and the moderate to severe impairment of the health and functionality of the body parts or of the mental life (up to 99%); on the other hand, the final acceptance of the legal-medical table system for the determination of the degree of invalidity.
This system, which has been applied for about two decades and has an objective-scientific approach, is already the basis of the compensation of personal injury in Italy but it is basically very different and not uniform.
(a) Temporary impairment
For temporary total impairment (100%), a daily rate of EUR 40.16 per day is recognized; for partial impairment (less than 100%), a proportional deduction is made.
(b) Permanent impairment
For permanent impairment, an amount of EUR 688.28 is recognized for each point (or percentage) of disability. In the case of higher disability, it is multiplied by a coefficient between 1.1 and 2.3 and deducted by 0.5% per year from the age of 11.
The impairment is calculated on the basis of two different evaluations: the percentage impairment of the state of health (1% to 99%, which is determined by specialists according to scientific criteria uniform in the national field and then quantified in monetary amounts through conversion tables.
For lighter damages, up to a disability of 9% (microlesioni), a uniform table for the whole of Italy has been created by law.
In the case of higher damages, tables are used which have been drawn up by various higher regional courts with regionally differing values and thus have no legally binding effect, but are nevertheless used uniformly by way of equity.
However, it can often be observed that insurers and also some courts regard the tables as a rigid scheme and completely disregard the specifics of the concrete case.
In cases involving foreign countries, one of the major problems is the medical examination, since doctors in the injured party's home country are generally not in a position to make the determinations required by Italian criteria.
In most cases, an examination of the injured party in Italy is necessary, which is of course absolutely advisable in the case of higher damages.
2. THE "COMPENSATION FOR PAIN AND SUFFERING" (DANNO MORALE)
This is the actual compensation for pain and suffering, the so-called pretium doloris, as compensation for the pain suffered as a result of the injury, both in the sense of physical and psychological pain.
Article 2059 of the Codice Civile is available first of all as a basis for claiming compensation for non-material damage "in the cases provided for by law".
Article 158 of the Criminal Code should then be mentioned here, which provides for compensation for damages in the event of a criminal offense.
Other cases arise from provisions of a simple legal nature relating to the endangerment of personal values (protective laws).
In addition to these cases, which are expressly standardized by law, a claim for compensation for non-material damage is also granted in the case of impairment of highly personal constitutionally protected rights, in a teleological interpretation as an outflow of the principle of a minimum safeguarding of the rights protected by the compensation system.
Accordingly, it cannot be assumed that the cases described in this way are exhaustive. Neither is the legislature prohibited from creating new norms of protection, nor does Article 2 of the Constitution prohibit adaptation to changed social conditions and interests, including the resulting obligation to pay damages.
In practice, moral damages are assessed on the basis of the amount of compensation determined for biological damage, of which a certain fraction (1/4 to ½) is recognized as moral damages.
This (almost) 'automatic' derivation in the quantification of moral damage is partly questioned by the recent jurisprudence but also by the new Code of Private Insurance, so that the discussion about the comprehensible quantification of immaterial damage (and especially severe damage) is high in the literature and academically.
Thus, on November 11, 2008, the decisions n. 26972, 26973, 26974 and 26975 - all issued by a strengthened senate of the Italian Court of Cassation - were published, revising the Italian system of damages for the so-called immaterial damage.
3. TRIVIAL DAMAGES
Such damages are not compensable. The jurisprudence has introduced a double test filter, since both the seriousness of the wrong and the extent of the prejudice must be taken into account for the obligation to compensate for immaterial damages.
The wrong must exceed a certain value of reproachability and then lead to an impairment of legal property to an extent that exceeds the tolerance threshold inherent in any legal system.
Thus the jurisprudence speaks against the substitutability of mere feelings of displeasure, anger, disappointment, anxiety, etc. as manifestations of mere discomfort, which people have to face in the social context every day.
4. INHERITABILITY OF THE DAMAGE: COMPENSATION IURE PROPRIO AND IURE HEREDITATIS
In the case of death, the heirs are entitled to compensation for damages in the course of inheritance (iure hereditatis), i.e. a subrogated right to claim (so in the case of the so-called "damage from the agony of death"); however, the heirs also have an independent right to compensation for their damages.
Thus, close relatives are normally entitled to the following sums as compensation for pain and suffering (e.g. in case of a car accident) iure proprio:
For the father or mother of a child killed:
€ 150.000,00 up to € 300.000,00
for the son or the daughter of a killed parent:
€ 150,000.00 up to € 300,000.00
for the spouse (not living separately) or the cohabiting partner (living together):
€ 150,000.00 up to € 300,000.00).
for the brother or sister of a killed sibling (and for the grandparents for a grandchild):
€ 21.000,00 up to € 130.000,00)