Compensation for biological, biopsychophysical non-patrimonial (ex existential) damage and protection in general

The calculation of compensation for damage is a complex operation, which must be entrusted to professional figures of the highest level and who can give the judge an objective and comprehensive assessment of the damage, including the measures that can be restored with compensation.

To calculate the compensation for the damage, however, it is necessary to understand what type of damage has been suffered,
whether patrimonial or non-pecuniary. In the case of pecuniary damage, then, it is necessary to distinguish three further types of damage, namely biological, moral and existential.

On the basis of this distinction, it is possible to calculate the damage, on the basis of some criteria defined by the law, such as the Milanese tables, very useful tools for both the judge and the expert who will examine the procedure.

Calculation of pecuniary damage

When we talk about pecuniary damage, we refer to two distinct types of damage: emerging damage and loss of profit.
The emerging damage is the damage that a subject suffers when he has to draw on his own assets to remedy the situation that
caused the damage. The most classic situation taken as an example is that of a surgery that did not go well due to poor
performance by the doctor, and therefore the subject will have to pay for a further corrective intervention.

Loss of profit, on the other hand, is the damage that occurs when the subject sees a future situation of loss of earnings or loss of future job opportunities. In this case the subject is obliged to provide rigorous proof of the damage and its consequences.

The prerequisite is, therefore, damage that arises from illegal, contractual or extra-contractual conduct. This assumption gives rise to compensation for damage, whether of a patrimonial or non-patrimonial nature.
Let’s see how compensation is calculated for both types of damage

The calculation of the compensation for the emerging damage

Compensation for emerging damage is calculated by the judge on the basis of the loss of assets that the subject is required to prove. Simply, the judge will rule that the party who caused the damage is required to compensate the damaged party for the amount of assets lost.
It may happen, however, that it is not possible to accurately calculate the amount of the damage. In this case the judge will
liquidate it in an equitable way, or a fair sum will be established for the calculated damage. The loss of assets, however, must be
reliable and with well-founded reasons.

The calculation of the compensation for loss of profit

The calculation of loss of profit is a complicated operation, because it is not always possible to accurately establish how much an individual would have earned if a certain event had not happened.
Before moving on to the calculation of the loss from profit, however, it is necessary to examine the consequences of the damage.
The first is that relating to the impossibility of using an asset. The subject, simply, will no longer be able to use an asset that was indispensable to produce income.
The second consequence of an unlawful fact is that which occurs when the non-fulfillment of contractual relationships relating to future damages occurs, or the loss or decrease of the capacity to work or the ability to pay welfare services.

The Supreme Court established the criteria for determining the loss from profit with its sentence n.11759 of May 15, 2018.
It is necessary to distinguish the employee from the self-employed worker:

  • Employee: the calculation is made on the basis of earned income plus exempt income and deductions provided for by law
  • Self-employed: the calculation is based on the highest net income declared by the injured party in the last three years. The declared income is that for IRPEF purposes. In this case, the judge will take into consideration the tax base and not the residual

The calculation of biological damage

Let us now examine the calculation of biological damage, that is the first type of non-pecuniary damage.
Biological damage is the injury to the psychophysical integrity of the person. The criteria that the law provides for the settlement of biological damage are relevant only in the case of micro-permanent damage, or injuries that do not exceed the threshold of 9 points of validity. The aforementioned criterion, however, only applies in cases of road accidents or medical liability.
For the calculation of the other types of biological damage, it is necessary to consult the tables drawn up by the various Italian courts. The most famous are the Milanese tables, which we will see later.
The Insurance Code provides some criteria for calculating biological damage and micro-permanent. In particular, it is necessary to

  • The age of the subject;
  • The points of permanent disability attributed by the medico-legal report (no more than 9);
  • Days of temporary biological damage;
  • Any associated moral damage (only in the case of permanent damage);
  • The costs incurred for treatment

How non-pecuniary damage is calculated

Non-pecuniary damage is that type of damage that concerns the psychic or physical suffering suffered by a subject as a result of an illicit behavior by others. Suffering can be related to physical damage, and in this case the moral damage goes hand in hand with the biological, or psychic one, precisely, as a discomfort felt due to a long stay in hospital facilities.
There are numerous sentences of the Supreme Court concerning non-pecuniary damage. Judgment no. 517 of 2006 establishes,
since the calculation of non-pecuniary damage escapes a precise assessment, it must be the judge who exactly quantifies the
liquidation of non-pecuniary damage. The judge, however, must take into account the suffering suffered by the injured party, the seriousness of the offense and the other elements of the case. All these elements must allow the judge to pronounce adequate compensation.
Furthermore, in the event that the moral damage is simultaneous with the biological damage, there will be no multiplication of the compensation. It will always be up to the judge to have to find a balance between the two types of damage, which in the end will determine the overall value of the compensation for the damage (see Cassation Sentence no. 8828 of 2003).

The calculation of the existential damage

Existential damage is a particular type of damage, not attributable to the two categories already mentioned, namely biological and moral, but which has an autonomous existence. The existential damage has as a consequence the worsening of the quality of life of the subject but it is not attributable to a psychophysical damage. Rather, it concerns the compromise of the values of the subject’s existence, a compromise that jeopardizes his personality.
Jurisprudence has long debated the legitimacy of the existence of non-pecuniary damage, considered necessary since its category
includes some rights protected by constitutional norms.
The analysis of art. 2059 of the Italian Civil Code, in fact, highlights the reference to the constitutional norms, and therefore all damages, even non-pecuniary ones, are refundable as long as they damage values and assets that are guaranteed by the Constitution.
The twin judgments of 2003, pronounced by the judges of legitimacy, affirmed the compensation of the existential damage and
bring it back within the category of non-pecuniary damage, with reference to article 2059 of the Italian Civil Code. already
mentioned. According to these sentences, the existential damage is not compensable only in the case of a crime but it is possible to
proceed with the compensation of the existential damage only in the case of infringement of constitutionally guaranteed rights.
In particular, sentence no. 10414 of 2016 of the Court of Cassation states that: “The biological damage (ie the injury to health), the moral one (ie the inner suffering) and the dynamic-relational damage (otherwise defined as” existential “, and consisting in the worsening of daily living conditions, compensable in the case in which the illicit has violated fundamental human rights) constitute ontologically different non-patrimonial prejudices and all of which can be compensated; nor does this conclusion conflict with the principle of unity of non-pecuniary damage, sanctioned by sentence no. 26972 of 2008 of the United Sections of the Court of Cassation, since that principle requires a unitary liquidation of the damage, but not an atomistic consideration of its effects “.
Judgment no. 20795 of 2018 of the Supreme Court determined the criteria for liquidating non-pecuniary damage, stating that the judge, in calculating the existential damage, must distinguish the dynamic-relational damage from the moral one, on the basis of art. 138 and 139 of the Insurance Code. Therefore, the following should be evaluated:

  • Non-material damage in the sense of the interior aspect of the damage suffered;
  • The dynamic-relational aspect, which negatively affects all relationships in the life of the subject.

The uniform equitable criterion, then, is assessed through the system of tables adopted by the judicial bodies and can be increased on the basis of the assessment of the dynamic-relational damage identified by the judge with specific motivation.
The Court of Cassation concludes by citing art. 32 of the Constitution, and thus affirming that biological damage and existential damage, belonging to the same constitutional area, can be subject to compensation for duplication. A different assessment will be made, however, in reference to non-pecuniary damage.

The Milanese tables in the compensation calculation

In the calculation of the compensation for damages, the most widespread method in the jurisprudence is to rely on the tables that have been drawn up by the various Italian courts, to identify the the damaged situation.
The Milanese (or Milan) tables are the reference criterion that has now been taken as a national parameter for the calculation of indemnities.
Judgment no. 12408 of 7 June 2011 of the Supreme Court established that the only parameter to be taken into consideration for compensation for biological damage is the Milanese tables.
The legislation was then updated over the years by the same Court of Cassation, which in 2016 clarified that the Milan tables are not a legal source of law, but only an evaluation parameter to determine the liquidation on an equitable basis that will be pronounced by the Judge. (judgment n.9556 / 2016).
With this ruling, the Court of Cassation affirmed that the judge must adopt the compensation for damages on an equitable basis on the basis of the former art. 1226 C.C. and that it must necessarily guarantee not only an adequate assessment to the case in question, but also the uniformity of judgment in the face of cases that can be judged in a similar way.
This means that identical damages will be compensated in the same way, precisely to guarantee a criterion of fairness despite the cases being evaluated by different judges. The adoption of the Milanese tables, therefore, was a necessary step given that these tables were already widely disseminated throughout the country at the time of the sentence of the Supreme Court.
The Supreme Court deemed it necessary to raise the Milanese tables as a reference parameter since there must necessarily be a
single criterion that can compensate for biological damage, since health is the most important and guaranteed asset also and above all by the constitutional charter.
Every year the Milanese tables are updated by the Milan court, which releases new parameters for the assessment of the damage to be referred to. The update is very important because a further sentence of the Court of Cassation states that the judge must use the last table drawn up by the Court of Milan as a reference parameter at the time of liquidation (sentence no. 33770 of 19 December 2019)..

Calculation of damages: interest

In the compensation of damages for debts of value, such as in the case of road accidents, the calculation of interest can present a practical difficulty. Interest must be calculated following the criteria that were determined by the sentence 1712/1995 of the United Sections of the Court of Cassation. In particular, the interests are determined by the judge in their amount, and must be calculated starting from the date of the fact and not on the total sum that has been revalued following the settlement of the
damage, but on the original sum that must be revalued year after year. The reference, therefore, is that of the monetary revaluation indices that must be applied to the original sum that will be nominally increased. The judge will then establish the interest rate to be applied, when he chooses to compensate the damage on an equitable basis: the rate, in fact, may be higher or lower depending on the specific case in question. The case in which it is necessary to calculate the interest on the biological damage which includes the payment of a deposit is different. According to the aforementioned sentence of the Supreme Court, the creditor’s position will be twofold and will take into account: • The period from the claim to the payment of the deposit. During this period, the injured party has not received anything, and therefore, having lost the possibility of making a profit from the entire amount due, the interest must be counted on the entire sum that the judge has established as compensation, therefore without deducting the advance. . • The period from the payment of the deposit onwards. In this case, the injured party received part of the compensation, but lost the opportunity to make use of the difference between the credit and the down payment. The interest, in this case, will be calculated on the difference and not on the entire value of the compensation payment