Heads of damages : a civil law and motor insurance perspective

Abstract

Does Article 1045 of the Civil Code offer an exhaustive remedy to the injured party under its heads of damages? Does Article 1045 imply that what is not mentioned under its categories is not recoverable? In the context of heads of damages under Maltese law is Article 1045 a case of lex specialis derogate lex generalis? The Motor Insurance Directive (codified) is a harmonisation tool, yet does it provide some basis for a claim for non-pecuniary damages he or she sustained before a Maltese Court? These are some questions which this thesis aims to answer. This thesis will look at heads of damages from a personal injury perspective only. The first chapter aims towards presenting a snapshot of the current legal reality with regards to compensable losses under Maltese law. This is developed through research on the types of damages which are currently being granted by the Courts. Certain damages are granted on the basis of the law but others which are not explicitly laid down under Maltese Civil Law are occasionally recognised by Maltese Courts. After this trial balance of the current situation at domestic law other systems of damages are looked in to and in so doing one forms an opinion of what lacks most under Maltese law. From this comparative overview categories of compensable loss from the English, Italian and French jurisdictions are explored. The third and last chapter arrives at a focus on the Motor Insurance Directive which is transposed by Chapter 104 of the Maltese corpus of laws. In presenting jurisprudence, this chapter will propose a ‘back door’ for claiming damages which are not usually recognised by the Civil Courts of Malta and which damages may be availed of under the auspices of the supremacy of European Union law. Finally this thesis will serve as a call for action during times where tort reform is brewing and will suggest a way forward which may be beneficial to acknowledge human realities. The reader should always bear in mind that it appears that the Civil Courts of Malta approach recognition of a particular category of damage in a way which is more subtle and indirect than the approach which is habitually adhered to by Common Law doctrine.