Was it just that only financial losses and possible future earnings were considered sufficient compensation under Maltese law until 2018? Definitely not, but it took so long for our legislator to amend our civil code until that year so that, now, we have a provision for moral damages compensation in cases when the act arises out of some voluntary criminal offences and is capped at a maximum of €10,000. Of course, prior to this long-awaited development, moral damages already existed in areas of law such as consumer claims, intellectual property, and breaches of constitutional rights.
Yet, is all this sufficient and satisfactory for anyone suffering any type of moral damage? Definitely not, I dare say, and I contend that it is high time that we follow suit and amend our legislation in line with mainland European countries and beyond. The local courts have been pushing for expanding moral damages ever since the landmark 1967 judgment of Butler v. Heard, whereby the court had come up with a way to quantify the pecuniary losses by a mathematical formula, which formula had remained unchanged for an unreasonable period.
Despite that 2018 amendment, though, and perhaps with a twist of irony, its impact seems to be reducing the ability of our court to grant compensation in situations that do not necessarily fall under an offence contemplated in the Maltese Criminal Code. Had Bill 78 of 2011, which was tabled but never enforced, been adopted, it would have been more adequate, as it provided for the granting of damages in respect to non-pecuniary loss, i.e., moral damages, without imposing any specific conditions. It did, however, propose a cap of €200,000 for such damages and also a formula as to how these were to be calculated.
True and effective justice can only be achieved if and when Article 1045 of the Civil Code is further amended to leave the awarding of compensation up to the discretion of the courts and simply trust that they will award fair and just compensation. Moreover, capping the amount of moral damages by way of compensation would shackle any possibility of meting out full justice.
Having stated that, it would be appropriate now to elaborate and delve deeper into the wide and far-reaching concept of moral damages. The subject of moral damages is perhaps one of the most challenging to deal with, and even more difficult is trying to develop some criteria for how it should be evaluated.
The determination of moral damages is an objective task. Our judges and magistrates face the commendable and controversial work of calculating "monetary compensation" for a damage that the doctrine qualifies as non-pecuniary, meaning that it is not subject to economic valuation. How do we calculate the amount that we have to compensate when feelings, affections, beliefs, decorum, honour, reputation, etc. are affected?
Before knowing how these damages can be valued, we need to specify what they are. Situational feelings are feelings referring only to the ego state. They are classified as pleasant (happiness, pleasure, agility, joy, rest, satisfaction, security) and unpleasant (sadness, worry, anguish, fear, restlessness, uneasiness, failure, helplessness, nostalgia, bad mood, anger, rage, envy, jealousy, etc.).
There are, then, feelings of self-worth and exo-valuation. They deal with the consideration the person has for himself. These can be affirmative, such as strength, pride, vanity, dignity, superiority, triumph, and comfort, or they can be negative, such as shame and guilt. The feelings of exo-valuation are those that concern the consideration that third parties have about a person and are also classified in affirmatives such as love, trust, compassion, interest, justice, and nobility, and in negatives such as hate, repugnance, contempt, and indignation.
Moral damage can only occur when there is damage of a psychological nature that affects any of the feelings I have already described. In undertaking the task of liquidating non-pecuniary damages, it must be remembered that, since feelings are the subject of a universal number of stimuli, there will be as many moral damages as situations that cause them.
I contend that the amount of the moral damages that, hopefully one day, can be determined by the judge should take into account a number of factors. These could incorporate such criteria as the rights of the injured parties, the degree of responsibility, the economic situation of the person in charge, the economic situation of the victim, and other circumstances of the case as the court may deem fit and appropriate.
Given that the object to be valued for the moral damages are the feelings, which are very personal by definition, the valuation of the moral damages must be done in a subjective way using objective criteria relative to the victim’s circumstances. Feelings are susceptible to being located and can and should also be tested, although on some occasions the physical and biological damage results in moral damage, which is always of a psychological nature.
It is always important to distinguish all along between pecuniary compensation for moral damages and compensation for the integrity of the aggrieved individual, for whom our law already establishes the way in which this reparation should take place.
For now, under our law, the possibility for our courts to freely and liberally award full moral damages by way of just compensation continues to fall dismally short of victims’ legitimate expectations and remains an insult to injury on the altar of justice.
Dr Mark Said is a lawyer