The amount of compensation for non-pecuniary damage is determined by the competent court following the criteria set out in the provisions of Article 200 of the Law of Contract and Torts.
According to the provisions of Article 200 of the Law of Contract and Torts, for physical pains suffered, for mental anguish suffered due to reduction of life activities, for becoming disfigured, for offended reputation, honour, freedom or rights of personality, for the death of a close person, as well as for fear suffered, the court shall, after finding that the circumstances of the case and particularly the intensity of pains and fear, and their duration, provide a corresponding ground thereof – award equitable damages, independently of redressing the property damage, even if the latter is not awarded.
In deciding on the request for redressing nonmaterial loss, as well as on the number of such damages, the court shall take into account the significance of the value violated and the purpose to be achieved by such redress, but also that it does not favour ends otherwise incompatible with its nature and social purpose.
Circumstances relevant to the determination of non-pecuniary damage, based on which the court awards equitable damages following the provisions of Article 200 of the Law of Contract and Torts, are:
- intensity and duration of pain and fear suffered
- the fault of a tort-feasor
- divided liability
- property circumstances of the tort-feasor and injured party
- purpose of the indemnity
- some questions of a medical nature.
Intensity and Duration of Pain and Fear Suffered
When assessing the merits of awarding pecuniary compensation for non-pecuniary damage, it must be taken care of the intensity of physical and mental pain and fear, as well as their duration.
When it is determined that the injured party’s pain and fear were to justify the award of monetary compensation for non-pecuniary damage, the amount of compensation is measured.
In doing so, one must start from the provision of Article 200 of the Law of Contract and Torts, and therefore, the intensity of pain and fear and their duration must be influential in determining the amount of compensation so that higher compensation will be awarded for longer and stronger pain.
In addition to the intensity and intensity of pain and fear, other circumstances must be taken into account when measuring compensation, as follows:
- greater sensitivity to physical suffering
- greater sensitivity to physical pain due to the illness of the injured party (heart patients)
- the nature of injuries suffered by the injured party
- general health of the injured party
- discomfort during treatment
- the number of injuries etc.
The Fault of a Tort-feasor
Under the conditions prescribed by the provisions of Articles 191 and 205 of the Law of Contract and Torts, the court may sentence the responsible person to pay less compensation than the number of damages.
According to the provisions of Article 191 paragraph 1 of the Law of Contract and Torts, the court may, while taking care of the material situation of the person sustaining a loss, order the person liable to pay an indemnity which is lower than the number of damages if it was not caused either wilfully or by gross negligence, and if the responsible person is in a poor material situation so that payment of full indemnity would bring him into poverty. In this case, ordinary negligence is presumed, and whether the tort-feasor has acted intentionally, with extreme or ordinary negligence, is not the subject of assessment.
If the tort-feasor has caused damage while doing something to the benefit of the person sustaining a loss, the court may order a lower indemnity while taking care of the degree of care the tort-feasor was otherwise applying in his affairs (Article 191 paragraph 2 of the Law of Contract and Torts).
According to Article 205 of the Law of Contract and Torts, provisions on separate liability and reduction of indemnity applicable to material loss shall apply accordingly to nonprofit loss as well.
The behaviour of the injured party may reduce the amount of damage. This behaviour consists of a negligent attitude towards one’s goods and becomes legally relevant for the tort-feasor at the moment of the damage and manifests itself in two primary forms.
The first form consists of allowing the tort-feasor to cause damage, either by doing or omitting. The second form is such behaviour of the injured party, which consists in not taking measures to eliminate or reduce the effect of the harmful consequences that have already occurred.
In Article 192 of the Law of Contract and Torts shall be accepted solution according to whom a person sustaining loss who has contributed to the occurrence of the loss or to its becoming larger than otherwise, shall only be entitled to a proportionally reduced indemnity and should it be impossible to establish which part of damage comes from an act of the person sustaining it, the court shall award the indemnity while taking into account the circumstances of the case.
The injured party’s behaviour, which enables the occurrence of damage, also deserves attention because consent to the damage excludes the harmful event’s inadmissibility. The Law of Contract and Torts sanctioned the permission of the injured party in Article 163 paragraph 1:” Whoever to his detriment permit others to take action, shall not demand from him recovery of damage caused by such action.” Consent to damage if the party is aware of the risk is considered when the party is exposed to that risk, although it is not obliged to do so by work or other duty.
In paragraph 2 of Article 163 of the Law of Contract and Torts, a statement of a person sustaining injury or loss by which he has agreed that harm is done to him through an action forbidden by law shall be null and void. Therefore, a party cannot agree to an action regarding which he has no right of disposition because such consent does not produce the legal effect.
Property Circumstances of the Tort-feasor and the Injured Party
It was considering the property circumstances of the tort-feasor and the injured party as circumstances on which, under certain conditions, the amount of monetary compensation may depend on the idea of socializing responsibility. Therefore, it was taken into account that in determining the compensation, the protection of the injured party’s material position must be started in the first place, or at least that the interests of the injured party and the tort-feasor must be taken into account equally.
The impact of the property circumstances of the tort-feasor and the injured party, as circumstances that may affect the amount of pecuniary compensation for non-pecuniary damage is regulated by the provisions of Article 191, paragraph 1 of the Law of Contract and Torts and based on these provisions of the law a person to pay less compensation than the amount of damage, if it was not caused intentionally or through gross negligence, and the responsible person is in poor financial condition, and the payment of total compensation would bring him into poverty.
Due to the purpose of compensation for non-pecuniary damage, the injured party’s property circumstances have a different meaning in reducing compensation for non-pecuniary damage than in compensation for material damage.
Two people, who suffer the same nonmaterial damage in terms of type and intensity, will not get the same pleasures with identical amounts of money, helping restore emotional balance. People’s desires determine emotional, sensory and other inner pleasures, and they spring not from the material but the spiritual wealth of the person.
Purpose of the Indemnity
According to Article 200, Paragraph 2 of the Law of Contract and Torts, when deciding on a request for compensation for non-pecuniary damage and the amount of its payment, the court will take care of the significance of the damaged property and the purpose of that compensation which is incompatible with its nature and social purpose. This paragraph determines the social criteria for determining monetary compensation for non-pecuniary damage, while in paragraph 1 of the same article, subjective elements are given.
Proper assessment of the elements from Article 200, paragraph 2 of the Law of Contract and Torts, prevents monetary compensation for non-pecuniary damage contrary to its social purpose.
Some Questions of a Medical Nature
There are numerous problems of a medical nature in disputes for compensation of damages, so experts’ cooperation is necessary.
Typical cases recorded in court practice refer to medical examinations results: concussion and related psychogenic post-emotional syndrome, the tendency of the injured towards some consequences caused by bodily injury, the result of loss of spleen, and concussion injury of the cervical spine.