Under the Maltese Civil Code, damages may be awarded for either tortious liability or contractual liability. In respect to the former, an action for damages will aim to place the individual in the same position before the damage occurred, and in respect to the latter, the action may be brought to either enforce the contract, or to liquidate damages for failure to perform such contract.

Traditionally, when speaking of the granting of damages under tort law, it is only ‘damnum emergens’ and ‘lucrum cessans’ which are awarded. The former means damages for the actual loss suffered, and the latter may be defined as the loss of future earnings. A very significant amendment which came about in relation to tortious liability is through Act XIII of 2018. Prior to this amendment, it seemed that the injured party could obtain moral damages indirectly through ’lucrum cessans’, as has occurred in the case of Victor Savona v. Dr Peter Asphar (02/04/1951). Following this Act, however, the case must fall within the scope of the amendment, and the court no longer has discretion. This means that through the proviso to article 1045, one may obtain moral damages only if the damage suffered by the victim arises from a voluntary criminal offence, and “which is a wilful crime against the person, subject to a punishment of imprisonment of at least three years, up to a maximum limit of ten thousand euro (€10,000) or up to such maximum limit as the Minister responsible for justice may by regulations establish both with regard to the maximum amount and about the method of computation depending on the case.” It is only at the end of this proviso that reference is made to moral harm and psychological damage which is caused to the claimant.

Moral damages may be defined as the pain and suffering endured by the injured party which results from the tortious action. This provision is reintroducing moral damage and psychological damage subject to a punitive rationale. Our courts, in terms of the latter, have always argued that the person who has suffered a psychological injury making it difficult for him to work in the future, results in lucrum cessans. The idea, however, here is compensatory. After such a proviso, this is no longer possible since, as previously stated, the tortfeasor must have committed a voluntary crime against the claimant, subject to various conditions.

The objective of such amendment seems to be an expansion of the compensation for moral damage, but its impact seems to be reducing the ability of our court to grant compensation in situations which do not necessarily fall under an offence contemplated in the Maltese Criminal Code. Jurisprudence is flexible, and thus gives the judge discretion, however, once legislation is passed, the court is then limited, and must abide with such law. This is precisely the scenario with such amendment, more specifically the conditions it encompasses.

It has been argued that the adoption of Bill 78 of 2011, which was tabled but never enforced, would have been more adequate, as it provided for the granting of damages in respect to non-pecuniary loss i.e. moral damages, without imposing any specific conditions. It did, however, propose a capping of €200,000 for such damages and also a formula as to how these were to be calculated. On the other hand, it has been argued that the introduction of such Bill could have led to too many claims before the Civil Court, without there really being some form of regulation as to which claims are to be heard.

Thus, it is questionable as to whether this amendment has in fact widened the scope of article 1045 of the Civil Code, or whether it has done the opposite. Considering the fact that a formula for quantification has not been promulgated, reference will have to be made to judgements and developments, for there to be some form of guidelines to which the Courts may refer.

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