THE DAMAGE AFTER EXISTENTIAL CASS. SS.UU. NN. 26972-75/2008
four judgments of merit in July 2010
With careful monitoring presented by Prof. Paul Cendon information on people and damage, you can see, even after the well-known judgments United Sections (SS.UU.) of the Supreme Court nos. 26972-75 11 November 2008 the continuing work of interpretation of the courts in regard to the existence and quantification of the so-called 'existential damage'.
A mo 'very short introduction, just remember that the judgments of SS.UU. have indicated that in the assessment of biological damage, should be included also non-pecuniary damage called 'existential', corresponding to those " prejudices concerning existential relational aspects of life, injury resulting from mental and physical [that] may constitute only 'voices' of the biological damage in its dynamic aspect, in which, for consolidated review, the CD is now absorbed damage to human relationships "(cited to hear. Tribunale di Roma - sez. Ostia of 22.10.2009).
However, according to the SS.UU., you can find (and compute) an entry of 'non-pecuniary damage further ', independent and separate from biological damage tout court, as follows:
" a) where the tort is a criminal offense in the abstract, [...] regardless of its constitutional significance;
b) when both the law itself, expressly provide for the refreshment del danno […] attraverso la norma attributiva del diritto;
c) quando il fatto illecito abbia violato in modo grave diritti inviolabili della persona, come tali oggetto di tutela costituzionale e non predeterminati dovendo, volta a volta essere allegati dalla parte e valutati caso per caso dal giudice (cfr. ad es. Cass. sez. III, 25 settembre 2009 n.20684), dovendosi evitare la duplicazione di poste risarcitorie nel caso che le tabelle in uso comprendessero anche la liquidazione degli aspetti relativi al c.d. ‘danno morale’ ” (dalle Tabelle del danno del Tribunale di Roma).
Ebbene, nonostante the presence of such restrictions in the identification of damage not included in the voice of 'biological damage', the fact remains that the Court has continued to develop on the vexed question and to identify types of damage not covered by even broader definition of SS. UU.
In particular, in July this year, there were a series of decisions of substance that have offered interesting insights regarding the so-called 'existential damage', which, although covered by a good twenty years passionate discussion of the doctrine, perhaps because of that but strictly limited (which, at the same time, it was a legitimate ...) continues to be developed and deepened.
The first sentence proves interesting from a methodological point of view, because it highlights an important distinction in the application of so-called 'Tables' of Italy.
The sentence of Sec. Ostia the Rome Court of 19 July, in fact, in our view correctly, as only the application of the specified tables in Milan in April 2009 complied with the guidelines of the judgments of SS.UU., can justify the calculation merged the voices of biological damage, moral damage and damage 'existential', as elaborated on this very premise.
On the contrary, then, " in damages biological Roman tables there are, either in whole or in part, the voices of the damage so-called moral and existential cd, and nothing is said in the notes (and thus should be discounted that there is nothing) about some innovative account of the negative impact on daily activities and give a dynamic-relational aspects of the life of the injured .
which, if at first glance may seem obvious or even trivial, in reality imposes on the Courts all over Italy, a series of repentance:
a) not to apply the tables in Milan, where there are not justifiably be applied (general rule);
b) in any case, do not apply to Tables of Milan just because they are the only ones that have a parameter value 'point' of the biological damage to the interpretations of SS.UU., but on the contrary
c) ; or apply the 'traditional' territorial Tables the 'old way', or with separate categories for 'moral damage' and possibly 'existential damage', or
d) adapt the territorial Tables to the values \u200b\u200band voices dictated by SS.UU. (As did the Court of Milan).
The risk, however, is that, by virtue of an easy but erroneous' translation ', even courts that traditionally does not apply to Tables Milan (like Rome), you can adapt just as they are' the only that conforms to the particulars of SS.UU.’. Circostanza di per sé vera, ma che comporterebbe l’applicazione di parametri socio-economici di base palesemente non conformi a quelle reali del Tribunale di riferimento.
La sentenza citata, allora, rappresenta in maniera semplice un attento ed importante monito contro una possibile (ma già presente…) ‘traslazione’ dei valori delle tabelle milanesi in tutti i Tribunali d’Italia, sulla base di un presupposto insufficiente, non necessario e che porta ad un’applicazione non corretta, ovvero per essere gli ‘unici’ ad essersi, ad oggi, adeguati alle indicazioni delle SS.UU.
Affrontando invece tre casi interessanti per il ‘merito’ del danno esistenziale, possiamo partire dalla sentenza del Tribunale di Bassano del Grappa del 14 – 20 luglio 2010, che tratta di immissioni sonore. Nel caso di specie, si è trattato di immissioni subite da vicini di una fattoria che triturava in situ il mangime per gli animali, creando immissioni rumorose che superavano abbondantemente la soglia di ‘normale tollerabilità’ (pur a fini produttivi).
Quello che interessa, della sentenza, è da ravvisarsi, a nostro avviso, non tanto nel riconoscimento del ‘ danno alla vita di relazione ’ nel caso di specie, quanto nel superamento dell’onere della prova, notably absent in the text of the reasons. Indeed, the Court concludes, " is noteworthy that the observed noisy entries, after finding the actual threshold is exceeded normal tolerance, present themselves certainly capable of affecting the health of the actors and affect the lives of report. As mentioned above, was not given any evidence of injury existential thought ' in re ipsa ' ...
Moreover, such recognition is implicit also, shall we say, 'qualified' in two different voices for 'effect health actors 'and' constraints on social life ', but without that, it seems appropriate to say, no investigation was done in the case of a medical nature on the person of the actors. The Judge of Bassano del Grappa, moreover, in a somewhat contradictory, also stresses that can not be considered 'not independently compensable ' the 'existential injury', ' even if it does not manifest itself in the form of pathological degeneration ', referring to confirm this assumption, the notes of judgments SS.UU., but " require [...] verification of the accurate performance of the burden of proof as to the alleged damage .
As is evident, therefore, while it is healing, in our view a positive, a continued and deeper reflection on the autonomy of the damage 'existential ' than 'biological ', on the other But you must be punctual in his own identification, something that, in that case, does not appear to have been sufficiently thorough.
different and more analytical way, however, has been addressed by the Court of Nocera Inferiore, in its ruling of July 13, 2010, concerning the interruption of service supply of drinking water for an entire week.
In that circumstance, in fact, has proved a vital 'witness evidence ', through which it was noted the "difficulty awaiting personal and home hygiene, failure to use hot water and appliances "and" need to draw water from other neighboring towns in order to meet the primary and basic needs of life, inconvenience, impinging on the right to quality of life and freedom of personality manifestation, constitutionally guaranteed by Article . 2 Cost […] fanno riconoscere il risarcimento del danno esistenziale ”. Si potrebbe anche notare che il caso in questione è uno di quei casi in cui potrebbe anche a ragione desumersi il danno in base a fatti notori, essendo l’acqua un bene fondamentale la cui mancanza, ancor più dell’energia, incide pesantemente sulla ‘qualità della vita’ di ogni giorno; pur tuttavia, in questo caso le parti attrici si sono peritate di dare puntuale contezza di tali ‘difficoltà’, meritando il riconoscimento del danno, poi quantificato in maniera (quella si) equitativa ex art. 1226 C.c., in € 300,00 per tutto il periodo. In base alla stessa corretta 'Logic', in this case, however, was rejected the claim for compensation for damage to property, judges ' unproven'.
Fourth and most qualified as, finally, is given by the Court of Appeal of Rome in a ruling filed July 20 last, which is to be found, first, a good definition of 'existential damage', presented as the " give a decisive change in the worst of the personality from which follows a radical overhaul of the way of life with changes in the way we relate to others in the common social life both inside and outside the family, resulting in the unjust violation of the essential values \u200b\u200bof the person constitutionally protected. "
After this acute and subtle existential definition of the damage, which correlates well the damage, which is called ' personality', with 'lifestyle ' injured party, the Judge goes to Rome verifying that this type of harm, in this case arising from any breach of privacy calls for continuous commercial by a well-known trading company.
Again, to be sure, some uncertainty of interpretation is detectable inside of the reasons for the sentence, because while the appellate court said that " the infringement of the rights of constitutional significance goes towards the penalty for compensation for the fact itself of the injury (injury event), regardless of any impact of assets which may lead to the same (consequential) ", taking this principle by Cass. No 7713/2000, and secondly, immediately after, it specifies that " however, the non-pecuniary damage, still represents a loss-must therefore be attached and tested specifically for compensatory damages, can not ever be considered in re ipsa ( v. Cass. No 20987/07) ", A principle which seems to contradict what was stated in the immediately preceding paragraph, and that poses the following question: but then the existential damage, as to bypass the constitutional nature, is 'give event' or 'consequential '?
The lack of clarity, let's say, the theoretical reasoning above, it is reflected, as often happens, even in the matter, where, if the Court of First Instance had ruled that "it is conceivable the abstract configurability of some insult to the family peace of mind - due to the matter of privacy - due to constant ringing of the telephone with a direct telephone communication disorder also effectively addressed the holder users ", only to reject, with some contradiction, the demand for" absence of evidence "and ordered the plaintiff to pay the costs of opinion, the Court of Appeals again rejected the demand, stressing the " evidence that the appellant has not provided . Except then, however, not only to offset the costs of the appeal for the whole, but also reform the decision at first instance in order to pay the costs outweigh the 50%, on the basis of the 'established responsibility profile the company appealed .
Justification that unexpectedly, given the premises, so back to overlap the floor of the 'responsibility ' with the one on ' damage ' plans that way, but only in part related to the costs, still betray once by the performers, not just a theoretical differentiation and, consequently, practice, case law with the evident uncertainties that continue to appear before our eyes.
Mr. Antonio M. Polito
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