The recent introduction of moral damages into our Civil Code

In terms of our Civil Code, Chapter 16 of the Laws of Malta, an action for damages can arise either consequent to a breach of a contractual obligation or consequent to a tortious act.

While the former refers to the damages that arise from a contractual obligation that has not been honoured by any of the parties, the latter refers to the right to receive compensation for damages consequent to a wrongful act or omission that a person causes to another. An action brought on the basis of a breach of contract is aimed at either enforcing the contract or putting the aggrieved party in the same position had the contract been fulfilled. In the case of a tortious act, the aggrieved party would sue to be reinstated in the same position had the wrongful act or omission not taken place.

Until recently, when liability for damages arose from a tortious act, the injured party could only seek compensation for the pecuniary damages s/he suffers as provided for in article 1045 of the Civil Code. This covered the actual loss that would have been directly caused, the expenses which s/he would be compelled to incur consequent to the damage, the loss of actual wages and other earning and finally, the loss of future earning in case the damage gives rise to a permanent incapacity, be it total or partial. Thus, unlike other jurisdictions, the award for moral damages also referred to as non-pecuniary damages, being the compensation for the pain and suffering experienced by the injured party as a result of the tortious act, was alien to our Civil Code.

Interestingly, the pressing need for introducing moral damages as an additional head of damages in our Civil Code has been echoed by our Courts since 1967 with the landmark judgement of Michael Butler v. Peter Christopher Heard. In this judgement, the Court of Appeal had already observed back then that our law providing for the compensation of damages was inferior to that found in other ‘progressive’ jurisdictions and remarked that hopefully it will not take long for this specific branch of law to be addressed by a much-needed reform. Although bound by the rules as set out in article 1045 of the Civil Code when compensating for damages as a result of a tortious act, the eagerness of the Courts to take into consideration moral damages could be observed in various judgements, in particular when it comes to quantifying damages as due weight is given to the psychological harm suffered by the injured party.

A legislative attempt to expressly introduce moral damages as a new head of damages in our Civil Code was made in 2011 through the promulgation of Bill 78. However, for some reason this Bill failed to see the light of day. It was only recently through Act XIII of 2018 that what was echoed in Butler v. Heard came to fruition. A proviso to article 1045 of the Civil Code was added stating that in the case of damages arising from a criminal offence, the damage to be made good shall also include any moral and or psychological harm caused to the claimant. Unlike the 2011 proposal that would have provided for the award of moral damages in case of a permanent disability be it of a total or partial nature, this recent amendment stipulates that moral damages may be awarded only in those instances where the tortious act also constitutes a criminal offence.

Thus, it could be observed that now, in terms of this new proviso, the injured party would have more interest in ensuring that if there exist grounds for criminal responsibility, a criminal action is brought against the tortfeasor and a conviction is secured against him/her. It is only then that one can move to request the Civil Court to award it moral damages.

Notwithstanding the fact that the 2011 proposal subscribed to a formula denoting how moral damages were to be computed, to date no legislative provisions clarify how moral damages are to be calculated by the Courts. Indeed, it would be most interesting to observe how judicial developments will unfold in this respect, especially when it comes to the formulation of criteria quantifying for moral damages.