Why compensate for moral damage in tort cases?

Abstract

This paper aims to explore why moral damages should be compensated in cases of tort. It will start off by introducing and differentiating the different heads of damages. It will then move into an analysis of various foreign jurisdictions in order to explore their position in relation to moral damages. The selected jurisdictions are Germany, France, Italy and England. This study will go into all the legislation that deals with damages, both pecuniary damages and moral damages, and will strive to explore the history behind them. Judgments reflect the interpretation of the legislation by the courts and these will be analysed in order to extract the reasoning behind the awarding of damages. The paper will also be delving into the arguments raised by jurists and courts which favour or disfavour the awarding of moral damages. This study will focus on the Maltese legal system, as it will analyse which areas of law award moral damages. It will also explore judgements which excluded moral damages due to the fact that this concept was not expressly regulated in the Maltese Civil Code prior to 2018. The paper will then be analysing the recent amendment to Article 1045 of the Civil Code as introduced by ACT No. XXXII of 2018. Finally, this research will conclude by referring to various judgements which indirectly awarded moral damages to the plaintiffs. The conclusion of this study gives an overview of all the discussion, including all the arguments in favour and against the awarding of moral damages. Such an analysis, of all the legislation, jurisprudence and arguments found in the different jurisdictions, helps us to answer the question, “Why compensate for moral damage in tort cases?”. This question underpins all work found in this research.