Damages: Focus on Biological Damages (Danno biologico)

The genesis of what is presently known as danno biologico, or "biological damage," is found in the Roman legal tradition of "damnum," which however did not acquire an unequivocal meaning for some time. A first reference to this concept can be found in The Law of The Twelve Tables in the fifth century B.C., which dealt only with concrete examples (e.g. damage from illicit grazing) and lacked an abstract definition of damage. A theoretical configuration came only later, thanks to the "Lex Aquilia de damno," where the damage was conceived generically as a consequence of the loss of a right to a good. [1] The fundamental dichotomy between patrimonial and non-patrimonial damages was already outlined under Roman law in the distinct compensations owed for damages to goods (slaves or animals) and moral damages (e.g., honor and decorum) [2] and, as will be seen, has continued to characterize this subject until the present. The Justinian Code refined this dichotomy by distinguishing patrimonial damage ("damnum") from moral loss.
As noted supra, the modern civil law tradition in Europe has been strongly affected by the influence of Natural Law theories within the French Civil Code (Code Civil Napol&eacuteon), which established a general principle of civil liability for torts. The Italian system governing obligations - with its fulcrum within Article 1223 Italian Civil Code[3] - makes clear that compensation for damages is due for "direct and immediate" consequences. [4] The system's broad framework comprises substantial differences between various theories of damage, covering damages both in contract and tort.
The strict dichotomy between patrimonial and non-patrimonial damages is not presented in Article 1223, which only speaks of damages - without any modifier. Only in tort law does the idea of "non-patrimonial" damages arise, [5] which have been come to be known also as "moral damages" by academics, lawyers and courts. Patrimonial damages are in turn bifurcated, following terms and concepts deriving from Roman law, into damnum emergens (danno emergente) which means all out-of-pocket expenses the claimant paid as a result of the injury, and lucrum cessans (lucro cessante), meaning lost profits. [6] These damages are calculated, when assessment is made by the judge, by taking into account expenses and lost earnings, [7] equitably determined by the court on a case-by-case basis, in accordance with Article 2056 Civil Code. [8]
In recent years, the boundaries of non-patrimonial damage have expanded, and it "has earned spaces of unprecedented priority, the result of a successful calling to guarantee a strengthening of the protection of the person. Pulled forward by the force of constitutional values, it has seen dizzying changes in the last decade that have involved both the rules governing compensability as well as the criteria that regulate the content of the damage and its assessment." [9] Actually, the expansion beyond the borders of patrimonial damage is widespread throughout Europe, [10] part of "a broader phenomenon through which contemporary private law is tending generally to expand beyond its dominion, beyond the realm of "having," into the ambit of issues that touch persons' very "being." [11]
For at least 30 years after the entry into force of the Civil Code, patrimonial damages were generally admissible, considered synonymous with Article 1223. On the other hand, the Italian Civil Code provides an exceptional system of compensation for non-patrimonial damages[12] through a rigorously conditioned application of Article 2059, which determines the cases in which non-patrimonial damages can be compensated. The notion of damage was thus interpreted so that compensation for non-patrimonial damage, as defined by Article 2059 C.C., was strictly linked to traditional, moral-subjective damage caused by actions that constituted a crime under Article 185. [13] The combined reading of these two Articles led to the conclusion that only the commission of criminal acts against the victim created the obligation for the payment of compensation of non-patrimonial damages. [14]
Compared to patrimonial damages, compensation for non-patrimonial damages indeed has a more subjective orientation, intended to satisfy and alleviate suffering of the damaged person ("Pecunia doloris"), rather than being established on a strictly economic basis. In terms of quantification of compensation, the judge is required to carry out an equitable calculation on the basis of the criteria of the seriousness of the offense, the subjective characteristics of the victim and the economic situation of the wrongdoer. [15]
Biological damage is a fairly recent development in the realm of damages, and has been the subject of controversy for over 30 years. The concept continues to resist a precise categorization within the historical bipolar system of patrimonial and non-patrimonial damages. Since the well-known cases of the 1970s (which will be discussed below) considerable debate has arisen also regarding differing interpretations of both the nature itself of biological damage and the forms and quantification owed for compensation. [16] The various situations in which the damage can arise and the heterogeneity of the criteria by which it is compensated are common to many experiences in the European Union. [17] An analysis of the situation across Europe carried out by Alpa leads him to conclude that "the current experience shows that, faced with the 'assessment chaos' due to the decisions of single cases, it has been deemed opportune in France and Spain to resort to uniform assessment tables, while in Great Britain the discussion is still open." [18]
Analysis and comparison with US law regarding the area known as biological damage in Italy appear to be complex for many reasons, among which is the existence of vastly different heads of damages used to evaluate compensation due for personal injury and wrongful death. As a mere example, the Restatement (Second) of Torts, &sect924, Harm to the Person, provides:

One whose interests of personalty have been tortiously invaded is entitled to recover damages for past or prospective
  • (a) bodily harm and emotional distress;
  • (b) loss or impairment of earning capacity;
  • (c) reasonable medical and other expenses; and
  • (d) harm to property or business caused by the invasion.[19]

In the common-law system, in fact, no strict dichotomy between patrimonial and non-patrimonial damages owing to historic interpretations and tradition exists. We can, however, discern from the above, that in very broad lines the first category, "bodily harm and emotional distress," could correlate to the kinds of harm compensated for under biological damage while the other forms of compensation relate more to economic losses and therefore more similar to awards given as patrimonial damages. Jury awards and contingency fees also distinguish U.S. tort litigation. "[T]he prominence of punitive element" in these cases is deemed by one authority to be "the greatest single difference between American law on the one hand and European law (including English law)." [20]
In Italy, the first theories fostering a new position of biological damage were proposed by the so-called "Scuola Genovese" (Genoese school), on the basis of a new interpretation of Article 2043. The Genoese judges postulated that in the case of physical detriment to a person, two different kinds of damages arise: on one hand, patrimonial damages, which can be quantified on the basis of income and reduced working capacities and, on the other hand, biological damages, which is the detriment of an individual's psychophysical integrity, in other words, of health. [21] This theoretical premise led to the creation of a so-called "tertium genus" (third genre) in the field of liability, causing a real revolution for the traditional bipolar system. A third genre meant that biological damage was not patrimonial damage because health, as directly protected by Article 32 of the Constitution, [22] could not be compensated on the basis of income because it comprises the value expressly safeguarded in the Italian Constitution without any reference to economic parameters. It is also different from moral damages, i.e. non-patrimonial damages, because it does not fit within the traditional boundaries of this kind of damages. [23]
Because these cases represented a major break with existing and consolidated traditions, they caused considerable unrest and were immediately overruled. However, consensus soon arrived from the Supreme Court, although in a hesitant way. In the 1980s the Court of Cassation approved this subdivision in the field of damages and an autonomous system of compensation owed for biological damages, based on the general principle of unjustified injury, the essential element of Article 2043. [24] Further cases not only approved the concept of third genre but also the methods of quantification of biological damage as created by the Genoese school, obtained by tripling the amount of the "pensione sociale" (social pension) regulated in the field of insurance, which was the only legal source that gave a serious basis for calculating an average valuation of a person. [25]
As noted supra, the main issues regarding biological damage during this part of its evolution concerned deciding on a precise definition for it, as well as a clearly demarcated position within the general categories of liability and then establishing methods of compensation. Prior to the ruling of the Court of Cassation, the Constitutional Court had already expressed itself in two important cases in 1979[26] on the fundamental role of effective safeguards for health and consequently of the compensation owed for detriment to psychophysical integrity, interpreting Constitutional Articles 3, [27] 24[28] and 32 vis-&agrave-vis compensation for damage to health. "Even if they constitute a notable step forward, the judgments seem contradictory between themselves, given that, in the same day the Court affirms on one hand the unconditional recognition of compensation for damage to health, [...] and on the other, places it within the ambit of Article 2059. [29]
In case Constitutional Court 27 July 1979, n. 87, the Court expressly defined health as a fundamental right subject to direct and unconditional safeguards. In the sister case announced by the Constitutional Court the same day, Constitutional Court 27 July 1979, n. 88the Court also related health to the more restrictive protection Article 2059 Civil Code, which however, in breaking from the longstanding interpretation, held that the combined reading with Article 185 Penal Code does not limit the compensation for non-patrimonial damages to health. Moreover it is part of the legislature’s discretional power to discipline in different ways facts which arise as a consequence of a crime and of a tort, without this meaning any kind of discrimination between identical situations. The only difference would regard the subjective characteristics of the wrongdoer.
The Court also specifies that biological harm is a kind of non-patrimonial damage because it is a damage which is not directly economically measurable but it has to be always considered legally relevant, and compensation for damages to it is obligatory. Even if the reasoning is based on facts regarding the commission of a crime, the Court cannot go beyond the question of constitutional illegitimacy and can only declare that health is a value that needs to be safeguarded in every circumstance. [30] So from a different perspective this decision can mean that the protection of health does not bear any kind of limitation such as the combined reading of Article 2059 and Article 185 Penal Code and so that biological damages must be compensated even if they are not caused by a crime. [31]
An extremely important moment in the history of biological damage in Italy arrived with case Constitutional Court, 14 July 1986, n. 184 (the so-called "Manzi case"); the judges confirmed an autonomous system of compensation for biological damage on the basis of Article 2043 in connection with Article 32 of the Constitution. However, the Court made a further distinction in this field, when explaining the difference between damages that constitute an event in the structure itself of tort and damages that are instead a consequence of that event, which must exist in the structure of the tort itself. The Court said that moral or patrimonial damages can exist but only as a consequence of the necessary existence of harm to health, which is assumed to exist and needs to be proved. The case was important because it differentiated the three kinds of damages and made clear that the only kind of non-patrimonial damage is pure moral damage, to be understood as "disturbance of the emotional state" but Article 2059 did not prevent compensation of biological damage, which is interpreted in this case as a new species of damage that coincides with a kind of event. [32] Because of the importance of the case and the controversy it has caused, the full case (with minor omissions) is translated here.
Subsequent evolution in case law has occurred over the last 25 years and today there is still a debate regarding the position and nature of biological damage. "The jurisprudence on biological damage [...] constitutes an interesting work bench, a sort of laboratory that offers the opportunity to undertake diverse ascertainments." [33] As seen above, initially safeguards to health were achieved through a combined reading of Article 2043 and Article 32 of Constitution set forth by the Constitutional Court in the famous case n. 184/1986, establishing biological damage as a primary damage resulting from the damaging event, and thus intrinsic in the tort of which it is a constitutive moment. The judgment's conclusions were well received, but its reasoning was widely criticized. [34] The ensuing years saw continuing debates from scholars[35] and pronouncements of the courts. [36]
In 2003 there were several important judgments pronounced relating to biological damage. In two of them the Courts - in one case the Court of Cassation's Third Civil Division and in the other the Constitutional Court - construed the definition and application of biological damages narrowly. Emphasis added by this author is intended to highlight this construction. The first case was handed down by the Court of Cassation, Third Civil Division, 31 May 2003, n. 8827, and held:

The equitable assessment of all the non-patrimonial damages can also be united, without a distinction - even if opportune, but not always indispensible - between the amount recognized as subjective moral damage as relief from the harms beyond and different from mere physical sufferance, or what must be assessed as compensation for the biological damage in the strict sense (if an injury to the psycho-physical integrity has occurred) and relief from harms from injuries of inviolable rights of the person (Article 2 Constitution). [Emphasis added.]
The constitutionally oriented reading of Article 2059 must be tendentially regarded not as an occasion for a generalized increase of the heads of damage (and never as a tool to duplicate compensation of the same harms), but above all as a means to fill the gaps in the compensatory protection of the person, which is traced back to the bipolar system of patrimonial and non-patrimonial damages, the latter of which comprises biological damage in the strict sense, (present only when there is an injury to the psycho-physical integrity according to the principles established by medical science), subjective moral damage as traditionally intended (whose ambit remains exclusively that of the mere mental sufferance and of the emotional state) as well as the different and further harms, as long as they are the consequence of the injury of a constitutionally protected area. It follows that, in the equitable assessment of the further harms, the judge, in relation to the above-mentioned unitary function of compensation for damage to the person, cannot ignore whatever has already been recognized as subjective moral damage, which is also compensable, when an injury to such an interest exists, even if the act does not constitute a crime. [Emphasis added.] The solution adopted by the trial court conforms to the law, whereby, in the presence of an injury to a constitutionally protected interest, it assessed the entire non-patrimonial damage also regarding the further harm consisting of the permanent deprivation of one's closest reciprocity of affection in family relations (while the reasoning must be corrected where the court held that it could alternatively include the above-noted harm within the scope of biological damage, which instead is not present where there is no injury to the psycho-physical integrity according to the principles established by medical science, or in subjective moral damage, whose scope comprises that of mere mental sufferance and must on the contrary be traced exclusively to this.)
Non-patrimonial damage comprises biological damage in the strict sense, subjective moral damage as traditionally intended and different and further harms, as long as they are the result of injuries to a constitutionally protected interest. Whenever an injury to one of these types of interests occurs, the resulting harm is compensable even if the act does not constitute a crime. [Emphasis added.]
The assessment of the non-patrimonial damage, which comprises biological damage, subjective moral damage and further compensable harms, can be expressed in a single sum of money determined by taking into account all the damaging effects of the injurious act.
The assessment of the non-patrimonial damages (in which biological damage, subjective moral damage and damage from injuries to constitutionally protected non-patrimonial interests are included), which can be carried out also in a unitary and comprehensive way, must nonetheless avoid compensatory duplications, and thus be opportunely done, reducing the amount of the moral damages, when the mental suffering caused by the tort is duly taken into account in the assessment of the biological damage or other non-patrimonial damages.
The only possible form of assessment of every damage lacking patrimonial characteristics, such as biological damage and moral damage, is the equitable form, given that the reason to use this criterion is inherent in the nature of such damage and in the function of compensation achieved through the attribution of a sum of money, which is not an indemnifier for a patrimonial reduction, but compensatory of a non-economic harm. It is therefore to be excluded that the judge be made responsible for not having indicated the reasons for which the damage cannot be proven in its precise amount - this being the condition for which recourse to an equitable assessment under Article 1226 - also because to the extent that a precise pecuniary quantification is possible, since established normative parameters for commutation exist, without which the non-patrimonial damage can never be proven in its precise amount, without prejudice to the judge's duty to account for the factual circumstances considered in carrying out the equitable assessment of the logical "process" that lead to that determined result.

In a sister case decided the same day, the Cassation's Third Civil Division case n. 2003/8828 describing various interests protected by Constitutional provisions, and mentioning for the first time, Article 29[38] as a basis for protecting those interests within the sphere of family relations as they relate to biological damages, holding:

The individual who seeks "iure proprio" compensation for damage suffered as a consequence of the killing of a partner for the definitive loss of family relations complains of a legal interest different from that of the right to health, of which he is holder (which is protected by Article 32 Constitution, where it the psycho-physical integrity is weakened, it is expressed through the compensation of biological damage) and from the interest in moral integrity (which is protected, traceable to Article 2 Constitution, where a contingent unjustified sufferance is caused, it is expressed through compensation of subjective moral damage) given that the interest relied upon is that of the intangibility of the sphere of affection and the reciprocal solidarity in the ambit of the family and of the inviolability of the free and full development of the person in the realm of his peculiar social formation constituted by the family, whose protection is traced to Articles 2, 29 and 30 of the Constitution. It is a protected interest, of constitutional importance, without an economic basis, whose injury does not open the way to compensation under Article 2043 C.C., which covers patrimonial damages, but to reparation under Article 2059 - without the limit provided for in relation to Article 185 Penal Code by reason of the nature of the injured value - turning on matters relating to damage that are not susceptible to a monetary market assessment.

Meanwhile, the same year, the Constitutional Court, in a case decided 11 July 2003, n. 233, subdivided non-patrimonial damages into three different categories: "biological," "moral" and damage from violation to rights which are protected at the Constitutional level, often known as "existential" damages. [39] It held, again pointing out the narrowness of biological damage:

The traditional affirmation according to which non-patrimonial damage considered by Article 2059 C.C. is identified by the so-called subjective moral damage can be said to be now superseded, needing to adopt a constitutional oriented interpretation of Article 2059, intended to comprise in the abstract provision of the norm every non-patrimonial damage deriving from the injury of a value inherent to the person: and therefore both the subjective moral damage, intended as transient disturbance of the emotional state of the victim; as well as the biological damage, strictly speaking, intended as the injury to the constitutionally guaranteed interest to the psycho-physical integrity of the person, after medical ascertainment (Article 32 Constitution) and finally also the damage (often defined by legal scholars and in jurisprudence as existential) deriving from the injury to other constitutionally protected interests inherent to the person. [Emphasis added.]

In case n. 26972/2008 the Court of Cassation clearly embraced, instead, a broad definition of biological damage, including within it every negative consequence that can affect someone as a consequence of detriment of his integrity; in doing so the court abandoned the narrow interpretation of biological damage made in 2003 both by the Constitutional Court and the Court of Cassation itself. Moreover, it no longer approved any creation of sub-categories in the field of non-patrimonial damages, expressly cancelling the validity of the "existential damages" as one of these. It also clarified what might not qualify as existential damage. [40] At point 3.13, the Court states:
Non patrimonial damage is a general category and not susceptible of being subdivided into variously labeled subcategories. It cannot, therefore, make reference to a generic subcategory called "existential damage" (...) The Court goes on to hold:

Harms that consist of uncomfortableness, annoyances, disappointments, anxieties and every other type of dissatisfaction concerning the most disparate aspects of everyday life that everyone meets in the social context are clearly not worthy of compensatory protection invoked in the heading of existential damage. Regarding the proof of damage, it can be provided also by rebuttable presumptions, without prejudice however to the injured party's burden of proving the elements of fact from which to presume the existence and the amount of the harm. Biological damage is to be recognized a tendentially all-inclusive scope, confirmed by the normative definition adopted by Legal Decree n. 209/2005, [41] [ ] containing the private insurance code that is capable of being adopted generally, also in various fields different from those of the sedes materiae, in which a long doctrinal elaboration was drafted, the legislature having received the now generally acquired and agreed upon results on the matter. Biological damage thus comprises harms regarding the dynamic-relational aspects of the life of the injured party. [Emphasis added.]

The long debate regarding the position of biological damage within the general categories of tort liability presents strong contrasts still today. Some authors assert that it constitutes a "tertium genus" and that it would be idle to discuss the nature of biological damage and decide whether it belongs to the moral or economic field. "Biological damage may thus be considered a tertium genus, or a special aspect of 'moral damages' and must be examined in its own terms." [42] Some authors point out that - due to the oscillating decisions of the Court of Cassation since the beginning of the '80s - biological damages have been qualified from time to time as either fitting within the category of patrimonial, non-patrimonial, or comprising a third, separate category. [43]
In most recent years, the Court of Cassation has held that the party damaged by a tort that objectively presents the characteristics of a crime has the right to compensation for non-patrimonial damages, under Article 2059 C.C., which must be assessed in a single sum, to be determined taking into account all the aspects that the non-patrimonial damages assume in the actual case (physical and psychological suffering; damage to the health, to the social relations, to relationships of affection and family, etc.) [44] In another case, the Third Civil Division stated that "In the presence of an assessment of moral damage that expressly extended also to personal-relations aspects, within the terms of the so-called existential damage, there is no possibility to attribute a further sum to a (different) head of existential damage, in addition to the moral damages already determined. The same thing must be said where the assessment of the biological damage comprised a negative effect on the personal-relation dynamics of the damaged party. (...) [Even] where such relational aspects (in their entirety or only considering those attributes peculiarly pertinent to the existential damage) are not taken into consideration, compensation of them cannot be excluded. [45] Moreover regarding assessment of the biological damage caused by an automobile accident, "aesthetic" damage having a non-patrimonial importance is to be assessed together with the biological damage. [46]
As noted above, quantification of biological damage is today another concrete point of controversy, not only in Italy but for the assessment of damages for psycho-physical injury, however named, throughout Europe. Evidence of such uncertainty is given by the presence of various quantification tables for the calculation of compensation throughout Italy. At a legislative level there is a table provided by the so-called code of private insurances, [47] which determines the methods of quantification of detriment to psycho-physical integrity. At a juridical level, on the other hand, there are two methods frequently used: the first one is related to the Milan tables, which essentially sum compensation for both biological and moral damages while nevertheless taking into account the specific characteristics of the case without resorting to simple automatic calculations. The other main way of assessment is the one used by the Roman judges, which still maintains the original distinction between the three kinds of non-patrimonial damages, in that they use the tables only for quantification of biological damage and then separately use a percentage of that amount to assess the other non-patrimonial damages, such as those arising from fundamental rights different from health (i.e. existential). [48]
From a comparative point of view, the different European experiences regarding biological damage do not concern the concept as such but rather the wide diversity of methods and forms of its quantification. [49] Thus any analysis must begin from a discussion of the problems inherent in comparing such a vast array of methods. According to Alpa, one of the most authoritative analyzes of this kind[50] postulates damage to individuals as damage to physical integrity plus moral damage. It found that the Italian system is one of the few in which there is a pre-determined percentage of invalidity for each type of lesion with the remaining percentage of invalidity being determined by a legal medical practitioner.
The widespread confusion in this field has led to calls for national legislation to regulate existing practices. France responded in 1985 with the "Loi Badinter,v Spain in 1995 and England in 1999 with the Law Commission Report on "Damages for Personal injury: Medical, Nursing and Other Expenses." [51] There is disagreement in the choices regarding both the "an" and the "quantum" of assessing biological damages, as well as in that of key terminology such as "prejudice physiologique" or "loss of expectations of life." Differences also regard concepts of "incapacity" with the Spanish system preferring notions of "incapacidad temporal" and "lesi&ograven permanente." Problems arise as a consequence of this in relation to the accumulation of income deriving from other social security benefits. Other problems include those arising from different methods of calculation: in France a point system is utilized ("calcul au point"); Spain uses tables and England has not yet decided on a definitive system. [52]
In Italy the debate has concentrated on the nature of biological damage as well as on damages deriving from accidents, especially those in the work-place, with particular reference to tables regarding each single instance where damage has occurred. The lack of homogeneity at the Italian and European level necessitates an adequate response in terminological, conceptual and practical terms because safeguards for individuals transcend regional national borders.


 

[1]M. Crisafi, "Il danno: profili storici," in Vol. I, I danni risarcibili nella responsabilit&agrave civile, in the series Il diritto civile nella giurisprudenza, ed. P. Cendon (Turin: UTET, 2005) 3.

[2]Ibid.

[3]Article 1223. Compensation for damages: Compensation for damages arising from non-performance or delay shall include the loss sustained by the creditor and the lost profits insofar as they are a direct and immediate consequence of the non-performance or delay.

[4]This provision thus includes also the notion of causation. It is evident that the wording was elaborated for contractual obligations; the provision was adapted to apply also to non-contractual obligations, as will be seen, infra.

[5]Article 2059. Non-patrimonial damages: Non-patrimonial damages shall be awarded only in cases provided by law.

[6]Markesinis et al, Compensation for Personal Injury in English, German and Italian Law, 162-63.

[7]Ibid. 18.

[8]Article 2056. Measure of damages: The damages owed to the person injured shall be determined in accordance with the provisions of Articles 1223, 1226 and 1227. The damage arising from loss of earnings shall be equitably estimated by the court according to the circumstances of the case.

[9]E. Navarretta, "Il danno non patrimoniale," in Responsablit&agrave civile, Danno non patrimoniale, ed. S. Patti, (Turin: UTET, 2010), 1.

[10]A. Nicolussi, "Danno non patrimoniale in Europa," in Responsablit&agrave civile, Danno non patrimoniale, ed. S. Patti, (Turin: UTET, 2010), 52.

[11]Ibid.

[12] "Interpreters were long divided over the definition of such damage, given that its precise identification is conditioned by the same normative provision found in Article 2059 according to which the compensation of the damage is completely exceptional." A. Jannarelli, "Il danno risarcibile," in Istituzioni di diritto privato, ed. M. Bessone (Turin: Giappichelli, 2007), 958.

[13]Article 185 P.C. Restitution and compensation for damages: Every criminal offense requires restitution according to the civil rules of law. Any criminal offense which causes material or non-material harm obliges the wrongdoer, as well as any person who is responsible for the conduct of the wrongdoer according to civil law, to compensate for that harm.

[14]The limitation was justified by the perception that only criminal acts were severe enough to cause the kind of "moral" suffering for which such damages were due.

[15]A. Jannarelli, "Il danno risarcibile," 958.

[16]G. Alpa, "La responsabilit&agrave civile. Parte generale," 656.

[17]Alpa, La responsabilit&agrave civile. Parte generale, 675.

[18]Ibid.

[19]Differences in these broad categories also exist even between US jurisdictions, and variations vary widely due to jury awards.
"In personal injury actions, damages may be awarded for the following elements of damage:
(1) Physical pain and suffering. An inherent problem of pain and suffering awards is that such awards are not subject to accurate calculation and are left to the jury's determination.
(2) Mental suffering and anguish, including fright, shock and emotional distress. Jurisdictions differ as to whether emotional distress damages may be recovered in absence of physical injury.
(3) Loss of time or earnings and impairment of earning capacity. (4) The reasonable cost of necessary medical treatment, hospital care, nursing services, and related expenses. (5) Loss of enjoyment of life. Such damages may arise from a physical disability, including a cosmetic deformity, that may impair the plaintiff's capacity to live a normal life.
(6) Other expenses incurred because of the injury. Typical of these expenses are those incurred for substitute services required because of the injuries sustained.
(7) Loss of consortium and/or companionship."
R. L. Conason et al., Damages in Tort Actions, (Albany: Matthew Bender & Company, Inc., a member of the LexisNexis Group, 2011).

[20]Markesinis et al., Compensation for personal injury in English, German and Italian Law, 86-87.

[21]Tribunal of Genoa 25 May 1974, in Giur. It., 1975, I, 54.

[22]Article 32, paragraph 1, Italian Constitution: The Republic safeguards health as a fundamental right of the individual and as a collective interest, and guarantees free medical care to the indigent.

[23]M. Crisafi, "Il danno: profili storici," 15.

[24]Court of Cassation, 6 April 1983, no. 2396, in Giur. It., 1984, I, 537.

[25]M. Crisafi, "Il danno: profili storici," 16. It must be noted that two cases of the Court of Cassation (13 January 1993, n. 357 and 16 March 1993, n. 2009) challenged the correctness of the Genoese method of calculating biological damage, but not the legal foundation on which it rests, which is by now universally accepted. Alpa, La responsabilit&agrave civile. Parte generale, 675.

[26]Constitutional Court 26.7.1979, n.87; Constitutional Court 26.7.1979, n. 88.

[27]Article 3, paragraph 1, Italian Constitution: All citizens have equal social dignity and are equal before the law, without distinction of sex, race, language, religion, political opinion, personal and social conditions.

[28]Article 24, paragraph 1, Italian Constitution: Anyone may bring cases before a court of law in order to protect their rights under civil and administrative law.

[29]M. Crisafi, "Il danno: profili storici," 16-17.

[30]Alpa, La responsabilit&agrave civile. Parte generale, 662.

[31]Ibid.

[32]See, among the many authorities discussing this case, M. Crisafi, "Il danno: profili storici," 17.

[33]Alpa, La responsabilit&agrave civile, 198.

[34]See, e.g., Crisafi, "Il danno: profili storici," 18.

[35]For a full discussion of the issues and references to various interpretations and authorities on the matter, see Alpa, La responsabilit&agrave civile, 668-674.

[36]See, e.g., Court of Cassation, 27 October 1994, n. 372.

[37]Court of Cassation, Third Civil Division, 31 May 2003, n. 8828.

[38]Article 29 [Marriage] (1) The family is recognized by the republic as a natural association founded on marriage. (2) Marriage entails moral and legal equality of the spouses within legally defined limits to protect the unity of the family.

[39]D. Poletti, "Il danno biologico nella ridefinizione dell'unitario danno non patrimoniale," in Responsablit&agrave civile, Danno non patrimoniale, ed. S. Patti, (Turin: UTET, 2010), 166-167.

[40]Court of Cassation, Joint Civil Divisions, 11 November 2008, n. 26972.

[41]Legislative decree of 7 September, n. 209, Private Insurance Code, published in the Gazzetta Ufficiale n. 239 of 13 Oct 2005 - Ordinary supplement n. 163.

[42]Markesinis et al, Compensation for personal injury in English, German and Italian Law, 86-87.

[43]Alpa, La responsabilit&agrave civile. Parte generale, 675. On these three points of view, see also Crisafi, "Il danno: profili storici," 19-20.

[44]Court of Cassation, Third Civil Division, 17 September 2010, n. 19816.

[45]Court of Cassation, Third Civil Division, 25 February-13 May 2011, n. 10527.

[46]Court of Cassation, Third Civil Division, 15 July 2011, n. 1564.

[47]Law no. 209/2005.

[48]D. Poletti, "Il danno biologico," 182-183.

[49]Alpa, La Responsabilit&agrave Civile. Parte Generale, 677.

[50]D. MacIntosh & M. Holmes, Personal Injury Awards in EU and EFTA Countries, (The Hague: Kluwer Law International, 2003) cited in ibid., 677.

[51]Ibid. 680.

[52]Ibid. 686.

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