'Danno esistenziale' : a better way of conceptualizing liability and damage in tort law

Abstract

This thesis considers whether 'danno esistenziale', as developed by Italian courts, can be safely adopted by Maltese courts, and thus be absorbed into Maltese law. The institute of damages, as it is currently being developed under Maltese jurisprudence, is then analysed. Maltese law does not have any specific provision awarding 'danno biologico ed esistenziale'. 'Danno morale' is only compensated in specific instances. Maltese courts now seem to be taking a positive stand in this regard, and as they have compensated 'danno esistenziale' in some very recent judgements, the author reflects on the consequences of this latest development. The conclusion reached is that the application of 'danno esistenziale' may be applied in all sectors of law, be it in tort, contractual and pre-contractual liability, and spoilt vacation. The writer argues that this may also be applied in criminal law, family law, intellectual property rights, and environmental law, because 'danno esistenziale' is also deemed to be a constitutional and a fundamental right interpreted through the Civil Code. There seems to be a lacuna per se in Maltese law, which may amount to a violation of a FHR concerning amongst others, the right to a fair hearing/trial, and to due process. Furthermore, it seems to still be the duty of the judiciary through Article 65 of the Constitution of Malta, to provide ad hoc redress in cases where there is a violation of a HR. Additionally, although Maltese courts are not bound by local precedent, yet these Courts are still bound by the ECtHR and the CJEU's decisions, together with EU law and treaties. This should trigger an alarm bell to spur the State to amend matters accordingly.