The 2018 amendments to Article 1045 of the Civil Code : a case of subtraction through addition?

Abstract

The notion of compensating moral and psychological damages has always been subject to the interplay between the legislator and the adjudicator. Prior to the 2018 amendments to article 1045 of the Civil Code, the courts had found ways and means to compensate for non-patrimonial harm by referring to legal doctrine to achieve a restitutio in integrum. Act XIII of 2018 had briefly disturbed this assumption by expressly introducing moral and psychological damages for claimants who suffered damage arising from any criminal offence. Shortly after this, Act XXXII restricted the scope of article 1045 to include a capping and conditions as to who may claim compensation, creating an apparent incompatibility between the restricted compensability of moral damage under article 1045 and the broader approach observable in the jurisprudence described above. Therefore, this research questions the compatibility of the current legislative text of article 1045 with the principle of restitutio in integrum as understood by the previous Maltese jurisprudence. It asks whether the amendments are in Vernon V. Palmer’s words: a case of subtraction through addition? A holistic approach is taken in analysing the law, whereby the layout of this paper attempts to cater for both a practical and theoretical analysis. The current legal implications of the amendments and the potential future implications which they will eventually generate are dissected and analysed; thereby raising the question whether the ‘additions’ of the legislative additions are truly ‘subtractions’? The latter connote a restriction to the scope of the courts’ discretion in providing compensation and on the other hand, an increase in the obstacles which a prospective claimant has to face when claiming moral or psychological compensation. A recurring theme throughout this research is thus the principle of restitutio in integrum and its compatibility with the recent legislative amendments.