The legal basis of wrongful death damages : comparing Italian and Maltese tort law

Abstract

Strenuous efforts have been undertaken by the courts in Italy and Malta to remain within the parameters of the law while meting out equitable awards of damages for all wrongful death cases. This work identifies the tensions arising between the constraints of the legislation and the manifest desire of the judges presiding over such cases of wrongful death to identify a clear logical basis for interpreting opaque legal provisions. As a result of a lack of legislative intervention both Italian and Maltese law have seen judge-made interpretations creatively expand the scope of interpretation of the legal provisions. Recent developments include the aligning of civil law with constitutional rights. In the case of Italy where the harm is nonpatrimonial with respect to the de cuius, a claim for damages has only been accepted in a situation where a period of time lapses between the perpetrated harm and the resultant death. Italian law has a specific article in its Code (Article 2043) introduced in 1942 which expressly permits non-patrimonial damages, the Maltese Civil Code does not. In Italian law in the case of the danno tanatologico and in Maltese law with respect to moral damages, there is an unequal remedy for an equal injury to claimants depending on whether they are suing the State or a private person. A tension is at play in Maltese law between taking account of the circumstances of the case and awarding strictly within the confines of current and future patrimonial loss. A further controversial matter in Malta is the nature of the legal basis to award damages in cases where there is no patrimonial loss incurred by the claimant in view of no dependency on the victim.