Original scientific paper
Significance of the Orientational Criteria of the Supreme Court of the Republic of Croatia for Awarding Just Pecuniary Damages for Non- Patrimonial Loss
Ivica Crnić
Abstract
The Croatian legal order recognizes the injured party’s right to indemnifi cation of non-patrimonial damage. However, the highly complex issue here is the objectivity of the medical and legal criteria used when assessing whether the injured party actually has a right to such indemnification and if so to what amount. It was noted that different criteria were used in awarding just pecuniary damages for non patrimonial loss, i.e. for cases in which the previous Obligations Act (hereinafter referred to as OA/91) is applied. In order to harmonize this practice, the Civil section of the Supreme Court of the Republic of Croatia, at its meeting held on November 29, 2002, considered and adopted the Orientational Criteria for determination and the amount of money required to settle the just pecuniary
damages for non-patrimonial loss (hereinafter referred to as Orientational Criteria). These Criteria do not cover all the recognized forms of non patrimonial damage according to OA/91, since they are limited to some of the most important and most frequent cases.
The Criteria were determined before the collection of data on the practice of county courts as second instance courts. It was pointed out during the discussion and the adoption of the Criteria that for lesser consequences lesser sums of money should be awarded as damages,
whereas for serious or particularly serious consequences the injured party should be awarded higher amounts (than had been the case so far), since those who were particularly hard hit should be given that kind of satisfaction to be able to cope more easily with their hardship,
which in some cases left them with serious lifelong consequences. In this way, the Supreme Court of the Republic of Croatia stressed the need for social solidarity in cases when the victim (the injured party) suffered particularly serious consequences of a harmful event.
The author points out that the Orientational Criteria are not a mathematical formula which can automatically be used for determining and calculating the just pecuniary damages. Therefore, the court is authorized after giving a proper explanation to considerably depart from the said Orientational Criteria and award the injured party a considerably higher just pecuniary indemnity when the special circumstances of the case so require. Adjudication in cases of non patrimonial loss therefore also requires the application of the legal standard of justice and not only and solely the mathematics deriving from the mechnical application of the Orientational Criteria.
Although the Orientational Criteria were adopted at the time when the OA/91 was still in force, it will still be possible to apply them to a certain extent even when just pecuniary damages are awarded applying the new Obligations Act (OA), which has been in force since
January 1, 2006. Here the author is primarily thinking of the way to determine the amount of just pecuniary damages for physical pain and suffering as facts applicable to art. 1100 of the OA. However, we believe that they will be applicable when determining emotional distress and suffering as a fact applicable to art. 1100. In order to determine whether the injured party is experiencing mental pain and suffering as a fact (not on legal grounds), i.e. whether he has loss of amenity and/or pain and suffering, etc. In fact, the loss of amenity and/or pain and suffering allows us to draw a conclusion as to whether the injured party is experiencing emotional distress and suffering, how intense and for how long a period.
However, considering the fact that the breaches of the right to personality mentioned in the OA as non-patrimonial damage are only ennumerated as examples (art. 19 relating to art. 1046 of the OA), it is obvious that the above mentioned Orientational Criteria no longer cover all the cases and that there is a need to harmonize the criteria so that for one and the same factual and legal situation the injured parties would be awarded the same damages (constitutional principle that all are equal before the law). In any case, the potential new
orientational criteria would have the same signifi cant features as the present ones, and they too would not be mere mathematical formulas for calculating the just pecuniary damages.
Keywords
non-patrimonial damages; medical criteria; physical pain; suffering; Orientational Criteria of the Supreme Court
Hrčak ID:
100060
URI
Publication date:
28.12.2012.
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