A disfigurement represent permanent change of the external appearance of a person that shall be manifested in the loss of a limb, indignity of aesthetic appearance, indignity of a body part or the impairment of a bodily function.
Disfigurement as a ground for the payment of non-material damage
Ground for indemnity of non-material damage is the mental pain because of disfigurement, and not only the existence of disfigurement without mental pain.
Whether there is any non-material damage in the form of mental pain due to disfigurement (Article 200 paragraph 1 of the Law of Contracts and Torts) shall be estimated according to objective and subjective criteria.
Objective criteria are changes of appearance of the injured party, their obviousniss in other words visibility, volume and the possibility of coverage, age and sex of the injured party, etc. The ground for recognizing of money indemnity for disfigurement isn’t only in whether and to what extent has changed the appearance of the injured party, but also this is the subjective criteria on the impact of all the elements (modified appearance, perceptibility, extent) on the mental balance of the injured party and on his mental state entirely where the subjective characteristics of the injured party are taken into account to a reasonable extent.
And when there are both elements of the factual situation (objective and subjective), this indemnity can not be awarded in any case.
The indemnity should be levied in accordance with Article 200 paragraph 1 and 2 of the Law of Contracts and Tort. For this reason, when the court has levied indemnity for very small non-material damage, it would be contrary to the mentioned provision.
The condition for the payment of compensation for mental anguish due to the disfigurement is and that the disfigurement represent permanent modification of the external appearance of the injured party. The temporary disfigurement during medical treatment (scratches on his face, torn open wound on his leg) does not constitute ground for compensation claims.
Reaction to the disfigurement of the environment is another factor that injured party layers and a greater emotional pain
Disfigurement – measuring the amount of damages
The degree of mental anguish due to disfigurement Court determine on the basis of forensic expertise. In this sense, the disfigurement as a senior generic term, shall be classified in three different terms, as follows:
- severe disfigurement – deformity
- secondary disfigurement – deformation and
- weak disfigurement – cosmetic defect.
Depending on the findings and opinion of expert for some of these degree of disfigurement shall be determined the amount of indemnity for mental anguish. When determining the amount of financial compensation for mental anguish due to disfigurement it is not a decisive degree of disfigurement, but in what it consists disfigurement.
In addition to the findings and opinions of expert witnesses the court will appreciate other circumstances of which depends on the intensity of mental anguish due to disfigurement, such as the above-mentioned objective and subjective criteria, age and sex of the injured party (to young persons and women may be recognized and higher indemnity), profession of the injured party (actors , models, photo models, singers, etc. those mental anguish will be greater, and therefore the indemnity).