Tort Law
In the Italian legal system, the principle of civil liability ("responsabilità civile") and the ensuing right to compensation for damages form the cornerstone of tort law. The primary goal is to restore an individual who has suffered harm to the position they would have been in had the harmful event not occurred.
The foundation of tortious liability: Article 2043 of the Italian Civil Code
The core of Italian tort law is encapsulated in Article 2043 of the Italian Civil Code. This key provision states: "Any intentional or negligent act that causes unjust damage to another obliges the person who committed the act to compensate the damage."
To establish a right to compensation under this article, several key elements must be proven:
(1) A willful or negligent act ("fatto doloso o colposo"): The conduct must be intentional or the result of negligence, imprudence, or incompetence.
(2) An "unjust damage" ("danno ingiusto"): The act must have infringed upon a legal right or a legally protected interest of the claimant. [3][5] This concept is crucial as it limits recoverable losses to those that violate a right protected by law.
(3) A causal link ("nesso di causalità"): There must be a direct and immediate causal relationship between the wrongful act and the damage suffered by the victim.
This form of liability is known as "extra-contractual," as it arises independently of any pre-existing contractual relationship between the parties, based on the general duty not to harm others.
Italian law makes a fundamental distinction between two main categories of damages: Pecuniary Damages and Non-Pecuniary Damages.
Pecuniary Damages
Pecuniary damages occur when an unlawful act - such as an accident, breach of contract, or act of negligence - causes financial loss. This type of damage directly affects the victim's assets, impoverishing them.
Italian law divides pecuniary damage into two distinct but complementary categories: actual damage and loss of earnings. Correctly identifying and quantifying these categories is essential to obtaining full compensation.
Actual damage
It represents the direct and immediate decrease in the assets of the injured party. It is the easiest economic loss to perceive and document because it consists of an incurred expense or a loss in the value of an owned asset.
In other words, it is the "money that goes out" or the "value that disappears" as a result of the wrongful act.
Its quantification is objective and based on documentary evidence. Invoices, receipts, sales slips (e.g., for medical expenses or vehicle repair costs), and technical appraisal reports (e.g., to assess the value of a destroyed asset) are required to prove this.
Loss of earnings
Loss of earnings is a more complex form of damage because it concerns a potential gain lost rather than a loss already suffered. It represents the wealth that the injured party was unable to produce or achieve due to the unlawful act.
It is the "money that did not come in" that would have entered the assets with reasonable probability if the harmful event had never occurred. Quantification is not based on concrete evidence but on presumptive and probabilistic calculations. The judge must equitably assess what the victim's most likely future earnings would have been.
This assessment is based on the following: (i) tax returns from previous years to establish the injured party's average income; and (ii) employment contracts, commercial agreements, or other documents demonstrating concrete economic opportunities lost. For permanent personal injury, statistical tables are used to project loss of working capacity over time.
While actual damages are proven by documenting a certain and current loss, loss of earnings requires demonstrating, based on objective evidence, a concrete and reasonable probability of lost future earnings.
Non-Pecuniary Damages
Unlike financial damages, which affect assets and income, non-financial damages affect a person's well-being: their health, peace of mind, and ability to enjoy life. It is a violation of the fundamental right to psychological and physical integrity and dignity.
Quantifying this type of damage is complex because it involves assigning an economic value to something that is inherently priceless. To accomplish this, the law and case law have developed a system based on disability points and reference tables that vary according to the severity of the injury.
Minor damage (or micro-permanent damage)
This category includes injuries resulting in permanent disability of between one and nine percentage points. While these are the least serious aftereffects, they still affect a person's life.
How are they quantified? The settlement is established by law (Article 139 of the Private Insurance Code) to ensure consistent treatment, particularly in cases of road accidents.
Such damages are compensated in accordance with Italian law using a structured method that considers several key factors.
- Value per Point of Disability: The law assigns a specific monetary value to each percentage point of disability. This value typically increases progressively, meaning higher disability ratings (more severe injuries) receive greater compensation per point.
- Age-Based Adjustment: The calculated compensation is adjusted based on the victim's age. The total amount decreases as the victim's age increases. The rationale is that a younger person will have to live with the consequences of the injury for a longer period.
Personalized Increase for Moral Damages: The law allows for a discretionary increase to the base amount to compensate for subjective, non-economic suffering, such as pain, anxiety, and loss of enjoyment of life. This enhancement is not automatic. It must be specifically requested and substantiated with evidence.
Major damage (or macro-permanent damage)
According to Italian law, when the degree of permanent disability is equal to or greater than 10%, the damage is considered significant enough to require a more complex, personalized calculation system. For decades, the quantification of non-pecuniary damages was left to the equitable assessment of individual judges, resulting in significant disparities in treatment throughout Italy. To ensure greater uniformity, courts began developing "tables" with standard monetary values.
The Tables of the Court of Milan have become the national benchmark and are recognized by the Court of Cassation. However, critical issues have emerged over time, and other courts, such as the Court of Rome, have proposed alternative systems that are considered more equitable for more serious damages. This "competition" between tables has generated new uncertainty.
To address this, the government recently intervened with Presidential Decree No. 12 on January 13, 2025, introducing the Single National Table (TUN). The TUN aims to establish a uniform settlement criterion for injuries resulting from road accidents and medical liability that are not minor (10% disability or more).
The TUN calculates compensation based on a point system, with the value of each point influenced by three main factors:
(1) Severity of the injury: The monetary value assigned to each disability point increases with the overall percentage of disability.
(2) Age of the victim: The compensation amount decreases as the victim's age increases.
(3) Moral suffering: Judges have the discretion to increase the base compensation amount to account for the individual pain and suffering of the victim. This moral damage must be proven and is not automatically granted.
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