Non-Pecuniary Damages in the Age of Personality Rights: A Search for a Fair and Reasonable Framework Comparing the German and Italian Legal System

TLDR: In this article, a comparative study of the German and Italian legal systems of non-pecuniary damages is presented, focusing on the issues which have been most influenced by principles of human rights protection.

Abstract: The system of non-pecuniary damages has gone through extreme development in the last hundred and fifty years. From a head of damages of minor practical relevance and very limited application for punitive scopes it has now become one of the central issues of tort law and an important tool for compensation.Two main reasons may be individuated for the growing importance of the compensation of non-economical losses. The first is the post industrial revolution state of the world which is characterised by an increase in number and severity of traffic and work accidents. Even more efficient, but also more dangerous machines are today a part of every ones life. Later it was the fast growing improvement in medicine which let to new and more efficient possibilities to cure deceases and at the same time catapulted health law in the center of tort law. On one hand the possibility of a more effective cure leads to liability in case of failure and on the other hand patients today are more aware of their rights and thus more likely to sue the medical institutions and their doctors. Another field of modern industrial revolution is the fast developing computer technology. Indeed the significance of computer applications in daily life of every person is growing so fast that the development of adequate legal tools can hardly keep path. Thus the forthcoming developments in the field of non-pecuniary damages will probably concern to a great extend health law and IT law. The present study focuses, however, not on these issues but rather on the second aspect which has caused a radical explotion of the role of non-pecuniary damages in the last decades.This second reason is the change in the conception of the person. In the framework of tort law the person was traditionally “measured” by it’s capability to produce income. The development after World War II has put as well in Germany as in Italy the value of the person as such at the basis of compensation. In consequence the area of recoverable losses has expanded steadily. More and more losses are deemed recoverable and the awarded sums show an upward trend. This development is closely related to the growing importance attributed to the protection of fundamental rights. To safeguard the values inherent to the person is not any more seen as an exclusive task of public law. Private law, in particular tort law, is used to guarantee the free development of the personality in its various aspects and human dignity and its protection has become the fundamental principle of tort law.The present study analyses the developments in the compensation of non-pecuniary damages in the German and Italian systems of tort law. The two systems have been chosen because they faced the challenges of the last decades in different ways – the German approach seems rather cautious and slowly compared to the Italian visionary, more flexible one. One focus of the study is the investigation whether or not the differences among the two legal systems are merely apparent. The answer to this question is of interest for further harmonisation of law within the European Union.The present study is divided in three parts. Part One contains a rather descriptive analysis of the state-of-art of recoverable non-pecuniary losses under the German legal system (Chapter A) and, in the Chapter B, of different aspects of the assessment of non-pecuniary damages. Based on the study of the German legal system, Part Two investigates the evolution of the Italian legal system with regard to recoverability and assessment of non-pecuniary damages. The comparative Part Three is intended to summarise the most important aspects of the study of the German and Italian legal system and wants to point out were both might profit from the experiences of the other. The chapters on recoverable losses will give an overview of the normative scheme to then highlight the most important developments in cases law. One central theme accompagnying the whole analysis is the question which impact fundamental rights and more general the principles of human rights had on the recent development of tort law. In order to concentrate on the issues which have been most influenced by principles of human rights protection, the study will not deal with all aspects of compensation for damages. Regarding liability one may distinguish, as above all the German authors do, between the two questions “Is liability given (and of whom)?” (the so called Haftungsbegrundung) and if the first question is answered in an affirmative way: “What are the consequences?” in other words, is there a recoverable loss? If yes, in which way it has to be restored? Has a compensation to be paid? How much? (all this concerns the so called Haftungsausfullung).The present study focuses on the second problem, that means the types and measuring of losses and their compensation. For my investigation I will presume that liability is given. This leaves out of the analyses questions as whether the duty to compensate results out of a contractual relationship or out of tort, as well as issues of fault, negligence and strict liability. Those issues will be dealt with only insofar as they are relevant, in particular for the assessment of damages. However, as the systems of compensation of non-pecuniary damages have been developed mainly in the framework of torts, the analysis and examples given have their focus also on tort. The recoverability of pecuniary losses matters only marginally for the present research. The study will instead concentrate on compensation of non-pecuniary losses and the way in which this type of damages is assessed by the different systems. A central role plays herein the damage to health as health is the first fundamental right for which the necessity to grant protection also by means of tort law was recognised. This protection has then been extended to other fundamental rights. In the third part the so-called “Trojan horse” theory will be used to investigate the entanglements of rights and the phenomenon to use one fundamental right as a “Trojan horse” in order to actually grant protection to another right.In the second chapters respectively the system of assessment of damages will be analysed. That means, once recoverability has be affirmed, the question is, what kind of restoration is be owed and which method is applied by the judges to assess damages which by their nature are difficult, if not impossible to estimate precisely.The language used for the present analysis is English in the way it is used has common language for communication on an international level. That means that notions in English which do have a certain technical meaning in common law systems, are, when not otherwise stated, not used in the technical way. They should be read as referring to a more general meaning.This paper is the author’s PhD-thesis which was discussed in September 2009 at the Scuola Superiore Sant’Anna Pisa/Italy and obtained a score of 100/100 points.