A Guide to Damages for Personal Injury following an Accident in Italy
An individual who has the misfortune to be injured in an accident caused by a third party is justifiably entitled to received damages in respect of personal injuries and damage to their property. An accident that occurs whilst you are abroad is often more traumatic to the person as they may not understand the language and may not have any support.
Under Italian law the person or organisation that causes an accident that results in injury to a person or persons and damage to property has a duty to restore the victim to the position they would have been in had the accident not occurred, as set out in articles 2043 and 2054 of the Civil Code.
In order to quantify an adequate amount for the award, The Italian Civil Code makes a distinction between patrimonial damages and non-patrimonial damages, which define the impact on the victim that the accident has created and assists in calculating the amount of money that should be awarded.
Patrimonial damages relate to a financial loss, meaning when the fault or negligence that caused the accident harms the economic assets of the injured party directly. There are two sub-categories of patrimonial damages: consequential damage and monetary loss.
Consequential damage is defined as the immediate damage and/or injury arising from the accident and the direct consequences that resulted in economic loss to the injured party. This sub-category is comprised of the expenses for medical treatment, therapies and remedies required to return the victim to full health. It also includes the loss and damage of the victim’s goods. Consequential damage must be proven and the compensation will only occur once substantial evidence of the expenses incurred is presented.
Monetary loss relates to the reduction in profits – or personal income – suffered as a direct result of the injury. This means that all incomes lost due to the accident will be compensated; this includes losses that have already taken place and those that will take place in the future. According to articles 2056 and 1226 of the Civil Code, assessment of monetary loss must also be proven otherwise damages will not be forthcoming.
This evidence is required even in cases where monetary loss is presumed to be obvious. It is therefore mandatory to show substantial evidence of the economic loss. This is done by demonstrating that these monetary gains would have been secured but for the accident and as a consequence could not be accessed or enjoyed. Furthermore, it must be proven that the damage caused is closely related to the injury sustained or that it is a direct consequence of the injury.
Non-patrimonial damages occur when an intentional or negligent act causes a personal injury. As with patrimonial damages, there are two types of non-patrimonial damages: biological damage and moral damages. “
Biological damage relates to physical, mental and social damages. Articles 138 and 139 of the Code of the Insurances, define this type of damage as - “the temporary or permanent injury to the reduction of psycho-physical integrity of a person, regardless of the person’s capacity to produce an income.” Biological damage is divided into two sub-categories: temporary disability and permanent disability.
Temporary disability compensation is identified by calculating the total number of days needed to recover from the accident. Taking into consideration the human body’s natural capacity to recover, as well as the treatments needed to restore the victim’s original psycho/physical condition.
If the injured person is unable to perform any activity after the designated period of time, the temporary disability shall be deemed permanent. In cases where the injury suffered prevents the victim from performing only some activities, the disability will be deemed as limited. In both cases, limited disability will still be measured in days and will be considered as a minor.
However, permanent disability indicates the reduction in mental and physical health for conditions that are not curable, and it is expressed as a percentage. Pursuant to article 61 of the Code of Civil Procedure, the assessment of the personal injury must be carried out by a medical forensic expert.
In contrast, the assessment of the biological damage is made by applying a range of predetermined criteria provided by the law and ordered by the court or tribunal. The most commonly applied criteria is the one provided by the Tribunal of Milan, although some other tribunals have created their own. Such criteria and standards are based on a “variable index”, which is a fixed amount of money for a given percentage of disability. The sum of money increases with the percentage of disability experienced; however, it decreases in relation to the age of the injured person.
Moral damages relate to the moral harm, anxiety, distress and offence to a person’s general well-being. Accordingly, the assessment of the quantum of moral damages is related to the percentage of biological damage – up to 20%. This is in accordance with article 139 of Legislative Decree of 7 September 2005 n. 209 (Code of Insurances), which also provides the power to increase the sum of compensation.
In conclusion, there are different ways to quantify damages resulting from an accident and there are many different factors to take into account. The lawyers in Giambrone’s personal injury team strongly advise an injured party to be guided by an expert personal injury lawyer with a full comprehension of the distinction between patrimonial and non-patrimonial damages.