Is it possible to compensate for ‘moral damage’ without awarding ‘moral damages’ following ‘Brincat vs Malta’?

Abstract

This paper is dedicated to exploring the scenario regarding the compensability of moral damage in an ordinary tort action, following the landmark decision of Brincat vs Malta. It takes as its starting point the position, often adopted in our judgements, that damages awards under article 1045 and 1046 of the Civil Code are sufficient to compensate adequately for all the damage suffered by the victim, albeit moral damages are not awarded. It asks whether this reasoning remains tenable following this judgement. It focuses on two main critical cases: Busuttil vs Muscat (COA) and Brincat vs Malta (ECtHR), which respectively bring out new elements in the application of moral damages in Malta. These innovative judgements are delved into thoroughly to explore their rationale and the consequences thereof to our system of quantification of damages. The horizontal application of human rights will also be discussed to establish if it is a desirable solution to accomodate the rights of the victim of a tort. The scenario post Brincat vs Malta is then explored via another fundamental judgement called Jane Agius vs Attorney General, which provides authoritative guidance on the applicable scenario after the aforementioned judgements and how the latter have infiltrated this Court’s reasonings. The conclusion attempts to tie together the deductions made in the Chapters and scrutinizes the current situation of the Maltese quantification of damages. It provides recommendations based on fundamental human rights which should lie at the very heart of our system for compensating damages in private law.