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existential damage, a discussion of the Supreme Court clarifying the sections together

Supreme Court UNITED CIVIL SECTIONS

Judgement of 24 June to 11 November 2008, n. 26,972
(Pres. Carbone - Rel Preden)

THE COURSE OF THE PROCESS, submitted in May 1989 surgery for left inguinal hernia, underwent progressive atrophy of the left testicle that was removed in June 1990 result of unnecessary pain relief.
In March 1992 the courts agreed Dr. FS and ULSS No 8 (then No. 6) in Vicenza, assuming that the second surgery was necessitated by errors related to the first sentence and asking the defendants to refund all i danni patiti.
Il Tribunale di Vicenza, con sentenza del 9.7.1998, riconosciuto il danno biologico, condannò i convenuti a versare all'attore la somma ulteriore di £ 6.411.484 a titolo di interessi maturati sulla somma di £ 23.000.000 già corrisposta nel 1995 dall'assicuratore dei convenuti.
Con sentenza n. 1933/04 la corte d'appello di Venezia ha rigettato il gravame dell'A. in punto di liquidazione del danno sui rilievi: che dalla espletata consulenza tecnica era inequivocamente emerso che la perdita del testicolo non aveva inciso sulla capacità riproduttiva, rimasta integra, provocando soltanto un limitato danno permanente all'integrità fisica dell'A., apprezzato nella misura del 6%; che la richiesta di liquidazione del danno esistenziale, in quanto formulata per la prima volta in grado di appello, costituiva domanda nuova, come tale inammissibile ex art. 345 c.p.c. nella previgente formulazione; e che del pari inammissibili erano le richieste istruttorie di prove orali articolate per supportare la relativa domanda.
Avverso detta sentenza ricorre per cassazione l'A., affidandosi a due motivi, illustrati anche da memoria, cui resiste con controricorso F.S.
L'intimata U.L.S.S. n. 6 di Vicenza non ha svolto attività difensiva.
All'udienza del 19.12.2007, la terza sezione, rilevato che il ricorso investe questione di particolare importanza, in relazione al ed. danno esistenziale, ha rimesso la causa al Primo Presidente per l'eventuale assegnazione alle sezioni unite, in base alle considerazioni svolte con l'ordinanza resa nel ricorso n. 10517/2004, trattato nella medesima udienza, che ha assunto il n. 4712/2008.
Il Primo Presidente ha disposto l'assegnazione del ricorso alle sezioni unite.
MOTIVI DELLA DECISONE
A) Esame della questione di particolare importanza
1. L'ordinanza di rimessione n. 4712/2008 - relativa al ricorso n. 10517/2004, alla quale integralmente rinvia l'ordinanza della terza sezione che eguale questione ha ritenuto sussistere nel ricorso in esame - rileva che negli ultimi anni si sono formati in tema di danno non patrimoniale due contrapposti orientamenti giurisprudenziali, l'uno favorevole alla configurabilità, come autonoma categoria, del danno existential - intended, according to a doctrinal argument that has been followed in the case, as non-pecuniary injury, distinct from the biological damage in the absence of mental and physical injury, and ed. subjective moral damage, as it relates to the inner sphere of feeling, but the ball do areddituale of the subject - the other not.
observe the order that the sentences No 8827 and No. 8828/2003 have redefined traditional assumptions with respect to the opinions and content of non-pecuniary damages. As the conditions stated that the non-pecuniary damage is not compensable only where expressly authorized by law, according to the letter of Article. 2059 cc, but in all cases where the unlawful act is in conflict of interest or value of the person of constitutional significance, not susceptible to economic assessment. As for content, thought that the non-pecuniary damage, while constituting a unitary category, can be divided into prejudices of various kinds: biological, moral and existential.
In this approach, continuing its referral order, continuity has given the Constitutional Court, which judgment no 233/2003, in declaring that the question of the constitutionality of Article. 2059 cc, has bestowed an express recognition to the category of "existential damage, which shall be the third sub-category of non-pecuniary damage.
still remembers the order di rimessione che altre decisioni di legittimità hanno ritenuto ammissibile la configurabilità di un tertium genus di danno non patrimoniale, definito "esistenziale": tale danno consisterebbe in qualsiasi compromissione delle attività realizzatrici della persona umana (quali la lesione della serenità familiare o del godimento di un ambiente salubre), e si distinguerebbe sia dal danno biologico, perché non presuppone l'esistenza di una lesione in corpore, sia da quello morale, perché non costituirebbe un mero patema d'animo interiore di tipo soggettivo. Tra le decisioni rilevanti in tal senso l'ordinanza menziona le sentenze di questa Corte n. 7713/2000, n. 9009/2001, n. 6732/2005, n. 13546/2006, n. 2311/2007, e, above all, the decision of the Joint Sections No 6572/2006, which gave a clear definition of existential damage from injury to the person areddittuale, and an equally clear distinction of it from moral harm in that, unlike the latter, the damage is not a purely existential emotional and interior.
The referral order also points out that the usage guidance, supports the configuration of the existential damage as a separate category of non-pecuniary damage, was set against a different orientation, which denies dignity to the new conceptual figure of the damage.
According to this difference in focus on non-pecuniary damage, being compensated only in cases provided by law, which include, under the interpretation of Article constitutionally. No judgments provided by the 2059 cc 8827 and No. 8828/2003, cases of injury values \u200b\u200bof the person guaranteed by the Constitution, lacks the character of atypical, which instead features the pecuniary damage under Article. 2043 cc therefore would not be possible to devise generalized categories, such as loss of life, that would ultimately deprive the non-pecuniary damage the character of the breed. Among the decisions expression of this guideline refers to the order of the judgments of this Court No 15760/2006, No. 23918/2006, No. 9510/2006 No 9514/2007 No 14846/2007.
summarized the conflicting guidelines, the referral order concludes by inviting the sections together to decide on the following eight questions. "
1. Is it possible to envisage a non-pecuniary injury, so different from the material damage as the biological damage, consisting of injury to the victim areddituale and resulting from an impairment of constitutionally guaranteed values.
2. If it is correct to recognize the features of this injury in the necessary existence of a serious injury to a person's value, and the nature of gravity and permanence of the consequences derived from it.
3. If the theory is correct, considering the non-pecuniary damage "typical" deny the conceivability of existential damage.
4. If the theory is correct that the damage would be compensated only in the existential context of contract and in particular under-employment, or must assert the more general principle that the damage is existential citizenship and practical application in the field so the offense in the contract that the wrong tort.
5. Is it recoverable non-pecuniary damage that will affect the health understood not as physical or mental integrity, but as a feeling of wellbeing.
6. What should be the criteria for assessment of damages in life.
7. Whether it constitutes a special category of non-pecuniary damage and the. thanatological damage or instant death.
8. What are the burdens of pleading and proof borne by the applicant for the rest of the existential damage.
2. The compensation of non-pecuniary damage per art. 2059 cc ("non-pecuniary damage") that "The non-pecuniary damage should be compensated only in cases determined by law."
time enactment of the Civil Code is the only express provision of non-pecuniary damages was contained in art. 185 of the Criminal Code of 1930.
The courts in applying art. 2059 cc, was consolidated the view that the non-pecuniary damage was compensated only in the presence of a crime and to identify the content in ed. subjective moral damage, defined as pain contingent, transient disturbance of the soul.
2.1. The unsustainability di siffatta lettura restrittiva è stata rilevata da questa Corte con le sentenze n. 8827 e n. 8828/2003, in cui si è affermato che nel vigente assetto dell'ordinamento, nel quale assume posizione preminente la Costituzione - che, all'art. 2, riconosce e garantisce i diritti inviolabili dell'uomo - il danno non patrimoniale deve essere inteso nella sua accezione più ampia di danno determinato dalla lesione di interessi inerenti la persona non connotati da rilevanza economica.
Sorreggono l'affermazione i seguenti argomenti:
a) il cospicuo incremento, nella legislazione ordinaria, dei casi di espresso riconoscimento del risarcimento del danno non patrimoniale anche al di fuori dell'ipotesi di reato, in relazione alla compromissione personal values \u200b\u200b(Article 2 1. No 117/1998, Article 29, paragraph 9, 1. n. 675/1996, art. 44, paragraph 7 of Legislative Decree no. n. 286/1998, art. 2 1 . No 89/2001, with subsequent expansion of the reference in Article. 2059 cc in the cases determined by law;
b) the recognition in the jurisprudence of the Supreme Court (from the Judgement No 3675/1981) of that particular figure non-pecuniary damage, other than the subjective moral damage, which is the biological damage, with the formula which means the injury to personal physical and mental integrity;
c) the extension of judicial compensation for non-pecuniary damage, clearly intended as injury other than the subjective moral damage, as well as aiding legal persons (Judgement No. 2367/2000);
d) the need to ensure the compensation of non-pecuniary damage, even in the absence of crime, in the case of infringement of constitutional interests, and because in this case, the compensation is the minimal form of protection, and a minimum level of protection shall not be subject to specific limits, as this results in denial of protection in cases excluded, because the reference is to cases where the law allows compensation for non-pecuniary damage may well be Reportedly, after the entry into force of the Constitution, the provisions of the Basic Law, since the recognition in the Constitution of the inviolable rights inherent in the person not having an economic implicitly but necessarily require its protection, and thus constitutes a particular case by law at the highest level of compensation for non-pecuniary damage.
2.2. These sections together and share their own for reading, constitutionally, by the judgments No date 8827 and No. 8828/2003 Art. 2059 cc and complete as follows.
2.3. The non-pecuniary damage mentioned in the heading and text, art. 2059 cc, is identified with the damage caused by the lesion of interest inherent in the person characterized by economic importance.
His compensation requires the verification of the existence of elements in which it articulates the non-contractual tort defined in art. 2043 cc
Article. 2059 cc does not outline a separate offense of manufacturing of non-pecuniary damage, but also allows the repair of non-pecuniary damage, in the cases determined by law, the assumption of the existence of all the constituent elements of the structure of torts, which are obtained art. 2043 cc (and other standards, such as those involving cases of strict liability), elements which consist of the conduct, the causal link between conduct and event of damage, the latter characterized by injustice, determined by the lesion, not justified, interest worthy of protection, and damage resulting therefrom (loss-result, according to well-established review: Constitutional Court. No 372/1994; On n. 576, 581, 582, 584/2008).
2.4. Article. 2059 cc is standard for reference. The reference to the laws which determine the cases of Recoverability of non-pecuniary damage. The scope of the Recoverability of assets is not derived from the identification of a policy that provides such protection.
2.5. These are, first, art. Cp 185, which provides for the Recoverability of assets resulting from crime ("Every crime which has caused a financial loss or non-pecuniary compensation requires the perpetrator and the people who, under civil law, must respond to the fact that him ").
2.6. Other cases of non-pecuniary compensation for damage also are required by the ordinary laws in relazione alla compromissione di valori personali (art. 2 1. n. 117/1998: danni derivanti dalla privazione della libertà personale cagionati dall'esercizio di funzioni giudiziarie; art 29, comma 9, 1. n. 675/1996: impiego di modalità illecite nella raccolta di dati personali; art. 44, comma 7, d.lgs. n. 286/1998: adozione di atti discriminatori per motivi razziali, etnici o religiosi; art. 2 1. n. 89/2001: mancato rispetto del termine ragionevole di durata del processo).
2.7. Al di fuori dei casi determinati dalla legge, in virtù del principio della tutela minima risarcitoria spettante ai diritti costituzionali inviolabili, la tutela è estesa ai casi di danno non patrimoniale prodotto dalla lesione di diritti inviolabili della persona riconosciuti dalla Costituzione.
Per effetto di tale estensione, va ricondotto nell'ambito dell'art. 2059 c.c., il danno da lesione del diritto inviolabile alla salute (art. 32 Cost.) denominato danno biologico, del quale è data, dagli artt. 138 e 139 d.lgs. n. 209/2005, specifica definizione normativa (sent. n. 15022/2005; n. 23918/2006). In precedenza, come è noto, la tutela del danno biologico era invece apprestata grazie al collegamento tra l'art. 2043 c.c. e l'art. 32 Cost. (come ritenuto da Corte cost. n. 184/1986), per sottrarla al limite posto dall'art. 2059 c.c., norma nella quale avrebbe ben potuto sin dall'origine trovare collocazione (come ritenuto dalla successiva sentenza della Corte n. 372/1994 biological damage to the physical or psychological impairment suffered by the victim's primary joint).
Find appropriate place in the norm, even the protection afforded to those who have seen the inviolable rights of the affected family (Articles 2, 29 and 30 of the Constitution) (Judgement No. 8827 and No. 8828/2003, concerning the case of damage loss or impairment of the parental relationship in the case of death or cause serious disability of a spouse).
same happened to it to damage resulting from the invasion of the reputation, image, name, confidentiality, inviolable rights engraved in the person's dignity, preserved by the Articles. 2:03 GC (Judgement No. 25157/2008).
2.8. The read constitutionally art. 2959 cc, as deputy under the protection of non-pecuniary damages as seen in its broadest sense, indicates the scope of liability in tort under the Civil Code in force provided for in the bipolarity between financial loss (art. 2043 cc) and non-pecuniary damage ( art. 2059 cc) (sent. n.8827/2003, No. 15027/2005, No. 23918/2006).
On the structure of the offense, is divided into elements consisting of the conduct, the causal link between this and the harmful event, and the harm that follows from that (damage-consequence), the two cases differ in point of damages Event harmful, and that lesion of the protected interest.
In this regard, compensation for financial loss in tort is characterized by atypical, postulating the injustice of the damage in art. 2043 cc injury of any legal interest (sentence 500/1999), while that of non-pecuniary damage is characterized by typical, because the damage is compensated only in cases determined by law and in cases where it is caused by an event of significant damage in the lesion of specific inviolable rights of the person (Judgement No. 15027/2005, No. 23918/2006).
2.9. The Recoverability of assets not postulates, in terms of the injustice of the damage, the selection of the interest from which injury follows the loss. Selection occurs at the regulatory level, in specific cases determined by law or in the process of interpretation by the court, called to identify the existence, like the Constitution, of a specific person's inviolable right is headed by the necessarily minimum compensation claims.
2.10. Finally, if the tort is (also only the abstract: On No 6651/1982) as a crime, be compensated non-pecuniary damage, suffered by the victim and from any further damage (in the case of wrongful plurioffensivo: sent. No 4186/1998; On No 9556/2002), in its broadest sense of the damage caused by the lesion of interest inherent in the person characterized by economic importance. The limitation on
traditional figure of the ed. transient subjective moral damage is finally overcome. The figure, transposed from the practice of case law for a long time, had a legal basis is doubtful, because neither the art. 2059 cc or art. 185 cp speak of moral damage, let alone say the only relevant if it is transient, and was also defective in terms of adequacy of protection, since the moral suffering inflicted by the crime is not necessarily transient, the effect could well last for long painful time (the Court recognized that, in the case of death of the injured party in the process, the compensation is commensurate with that of the biological damage to the moral, postulating their stay. al tempo di vita effettiva: n.19057/2003; n. 3806/2004; n. 21683/2005) .
Va conseguentemente affermato che, nell'ambito della categoria generale del danno non patrimoniale, la formula "danno morale" non individua una autonoma sottocategoria di danno, ma descrive, tra i vari possibili pregiudizi non patrimoniali, un tipo di pregiudizio, costituito dalla sofferenza soggettiva cagionata dal reato in sé considerata. Sofferenza la cui intensità e durata nel tempo non assumono rilevanza ai fini della esistenza del danno, ma solo della quantificazione del risarcimento.
In ragione della ampia accezione del danno non patrimoniale, in presenza del reato é risarcibile non soltanto il danno non patrimoniale conseguente alla lesione di constitutionally inviolable rights (as will happen in the case of the crime of negligently causing injury, when you configure the biological damage to the victim, or in the case of killing or serious injury to the joint, determining the loss or impairment of the parental relationship), but also the consequent the lesion of interest inherent in the person not protected by such rights, but worthy of protection in sorted order (according to the criterion of injustice art. 2043 cc), as the typical, in this case, it is not only determined by the rank of the protected interest, but because of the choice of the legislature to say recoverable non-pecuniary damage caused by crime. Choice, however, that involves the consideration of the relevance interest affected, deduced from the preparation of criminal protection.
2.11. In other cases determined by law, the selection of the interest is already accomplished by the legislature. It should be noted that, in the cases provided by law referred to above, the compensation is connected to the injury of the inviolable rights of the person: personal freedom, privacy, not to be discriminated against.
It can not be considered closed to the legislature expand the catalog of the cases determined by ordinary legislation providing for the protection of non-pecuniary damages in respect of interests inherent in the person not having the constitutional status of inviolable rights, favors certain than the other (Corte cost. No 87/1979).
situation which does not apply in relation to the rights preached by the European Convention for the Protection of Human Rights, ratified by Law No 88 of 1955, as shown by the different successive protocols, which is not for the rank of constitutionally protected rights, since the Convention, although it has a nature that distinguishes it from its obligations under any other international treaties, does not assume, by virtue of ' art. 11 of the Constitution, the rank of constitutional source, nor can it be considered as equivalent, for such purposes, the effectiveness of Community law into national law (Constitutional Court. No 348/2007).
2.12. Out of the cases determined by law is given to the claim for redress for non-pecuniary damage only if it is found that the infringement of a person's inviolable right: there must be an injustice constitutionally qualified.
2.13. Under these assumptions do not come within the general category "non-pecuniary damage, distinct sub-categories, but are realized only specific cases determined by law, the maximum level established by the Constitution, repair of non-pecuniary damage.
E 'for descriptive purposes, in such a case, as happens, for example, in case of violation of the right to health (art. 32 of the Constitution), it takes a name, speaking of biological damage. Reference is thus a figure who had given legal recognition in the Articles. 138 and 139 of Legislative Decree no. 209/2005 laying down the Code of Private Insurance, identifying the biological damage in the "temporary or permanent injury to the integrity of the person susceptible to mental and physical forensic investigation that exerts a negative impact on daily activities and dynamic-relational aspects of the life of the victim, regardless of from the possible effects on his earning capacity, and give a definition susceptible of general application, as it incorporates the results now definitively acquired a long elaboration of doctrine and jurisprudence.
And yet for descriptive purposes, in the case of injury of family rights (Articles 2, 29 and 30 of the Constitution), using the concise definition of damage from loss del rapporto parentale.
In tal senso, e cioè come mera sintesi descrittiva, vanno intese le distinte denominazioni (danno morale, danno biologico, danno da perdita del rapporto parentale) adottate dalle sentenze gemelle del 2003, e recepite dalla sentenza, n. 233/2003 della Corte costituzionale.
Le menzionate sentenze, d'altra parte, avevano avuto cura di precisare che non era proficuo ritagliare all'interno della generale categoria del danno non patrimoniale specifiche figure di danno, etichettandole in vario modo (n. 8828/2003) , e di rilevare che la lettura costituzionalmente orientata dell'art. 2059 c.c. doveva essere riguardata non già come occasione di incremento delle poste di danno (e mai come strumento di duplicazione the compensation of the same prejudices), but as a means to bridge the gaps of compensation claims of the person (No 8827/2003). Considerations that the Joint Sections share.
2.14. The catalog of cases determined in this way is not limited.
The protection is not restricted to cases of inviolable rights of the person expressly recognized by the Constitution in this historical moment, but, by virtue of the opening article. 2 of the Constitution to an evolutionary process, the interpreter must be considered possible to infer from the overall constitutional system indexes that are appropriate to assess whether new emerging interest in social reality are not generally relevant for the sort, but doing is constitutional positions of the human person inviolable.
3. Now the question arises whether, under the protection of non-pecuniary damages, to take part, as a separate category, the so-called existential damage.
3.1. According to a thesis developed in the doctrine in the early 90s existential damage was intended as a non-pecuniary injury, distinct from the biological damage (at the time compensation under art. 2043 cc in conjunction with art. 32 of the Constitution) in the absence of injury to mental, and ed. subjective moral damage (the only non-pecuniary damage compensable in the presence of crime, according to the traditional narrow reading of Article. in connection with Article 2059 cc. 185 cp), as a matter not the inner sphere of feeling, but the ball do not income of the subject. This figure
damage arose from the stated intent to broaden the claim for redress for damage to non-pecuniary injury on the person, freed from the limitations of Article. 2059 cc, and following the path already traveled to the biological damage, to operate within the article. 2043 cc understood as laws governing the compensation of not only financial loss, but also that no person on the sheet.
It was stated that, if the tort limits realizable assets of the human person, bound to take the lives of everyday behavior different from past ones, it creates a new type of damage (as opposed to subjective and moral damage to the biological damage) defined the term "existential damage"
The injury was detected in the alteration of social relations, loss of quality of life in the impairment of the existential dimension of the person. Prejudices than suffering intimate, subjective constituent material damage, because it consists of a pain, but not being able to do more in the manner previously adopted, and integrating biological damage in the absence of damage to the integrity or mental health.
3.2. It should be noted that, even under art. 2043 cc in which it was inserted, a new profile of damage was resolved in the description of an injury existential (the reduced quality of life, do not change in their income), not accompanied by the necessary identification for the purpose of the requirement of the injustice of the damage, what was the legal interest affected by the unlawful act, and 'None of the lesion is such an interest was impediment to admission to compensation.
similar deficiencies, not perceived by the Court on the merits, to provide favorable mostratasi claim for redress to the damage as described (damage-result) without investigating the injustice of the harm (injury of interest), was instead advised the Court in various previous judgments to judgments of 2003 twins.
The sentence No 7713/2000, while talking of existential damage, and using the connection between art. 2043 cc and rules of the Constitution (in this case. Articles 29, 30), similar to what happened at the time for the biological damage, it provides a basis for protection in the lesion of the constitutionally protected right of the child to education and education, integral-damage event. The decision does not therefore supports the view that sees the existential damage as a general category and says compensable injury regardless of the finding of a significant interest.
The mention of the damage is found also in the existential sentence no 4783/2001, which defined the existential psychological suffering experienced by the victim of physical injury (And thus in the presence of crime), which was followed shortly after death, and had remained lucid during the agony, and require the payment of damages to the heirs of the victim. The decision not comforted by the theory of existential damage. Under settled case-law that denies the legitimacy, in the case of immediate death or occurred a short distance from the event adversely affecting the biological damages for loss of life (Judgement No. 1704/1997, No. 491/1999 No 13336/1999, No 887/2002, No 517/2006), and admits the loss of health only if the subject has remained alive for an appreciable time (Judgement No. 6404/1998, n . 9620/2003, No. 4754/2004, No. 15404/2004), and this defines man, la sentenza persegue lo scopo di riconoscere il risarcimento, a diverso titolo, delle sofferenze coscientemente patite in quel breve intervallo. Viene qui in considerazione il tema della risarcibilità della sofferenza psichica, di massima intensità anche se di durata contenuta, nel caso di morte che segua le lesioni dopo breve tempo. Sofferenza che, non essendo suscettibile di degenerare in danno biologico, in ragione del limitato intervallo di tempo tra lesioni e morte, non può che essere risarcita come danno morale, nella sua nuova più ampia accezione. Né, d'altra parte, può in questa sede essere rimeditato il richiamato indirizzo giurisprudenziale, non essendosi manifestato in questa Corte un argomentato dissenso.
In tema di damage from unreasonable length of the process (Article 2 of Law No 89/2001) sentence no 15449/2002, expressly denied the separate existence Recoverability of injury, as constituting only a "voice" of non-economic loss, compensable by express provision of law.
Other decisions have recognized, under-employment (and therefore subject to contractual liability, placing the question on which we will return below), the existential damage by not taking the weekly rest (Judgement No. 9009/2001) and demotion (Judgement No. 8904/2003), seeing in those cases, the lesion of the fundamental rights of the worker, and then reconnecting to the Recoverability injustice constitutionally qualified.
the existential damage was given ample space by justices of the peace, in relation to the most imaginative, and sometimes laughable, likely biases could alter the mode of existence of people: the breaking of the heel of a shoe as a bride, the wrong haircut, the stressful waiting at the airport, the disruption of a public office, sending illegal fines, the death of the animal disease, animal abuse, the loss of enjoyment of the football match on television given by the black -out. This will indemnify prejudices of dubious reliability, regardless of the identification of the interest affected, and therefore the requirement of injustice.
3.3. These were therefore the terms in which he lived, in the opinion of the teaching and applications of the law, the figure of existential damage. After the sentences
No 8827 and No. 8828/2003 have established the principle, shared by these sections together, according to which, by virtue of a constitutionally reading art. 2059 cc, the only standard governing the non-pecuniary damages, for the compensation for such damage is given, as well as in the cases determined by law only in case of injury to specific inviolable rights of the person, and in the presence of an injustice that is constitutionally qualified existential damage as a separate category of damage is not given more talk.
3.4. As pointed out, the figure of existential damage had been proposed in the declared intent to make up for a lack of protection, which now no longer exists.
3.4.1. In the presence of crime, after the traditional orientation that limited compensation for material damage only to the subjective, identified with the father's mood transient, and affirmed the Recoverability of assets not in its broadest sense, including the effect of non-pecuniary interest in not to do (but would be better to say, determined by the moral suffering can not do) is compensable. The
compensation claims will be recognized if the injury is a consequence of injury of at least a legally protected interest, desunto dall'ordinamento positivo, ivi comprese le convenzioni internazionali (come la già citata Convenzione europea per la salvaguardia dei diritti dell'uomo, ratificata con la legge n. 88 del 1955), e cioè purché sussista il requisito dell'ingiustizia generica secondo l'art. 2043 c.c. E la previsione della tutela penale costituisce sicuro indice della rilevanza dell'interesse leso.
3.4.2. In assenza di reato, e al di fuori dei casi determinati dalla legge, pregiudizi di tipo esistenziale sono risarcibili purché conseguenti alla lesione di un diritto inviolabile della persona.
Ipotesi che si realizza, ad esempio, nel caso dello sconvolgimento della vita familiare provocato dalla perdita di congiunto (ed. danno da perdita del parental relationship), since the injury follows the existential lesion of the inviolable rights of the family (Art. 2, 29 and 30 of the Constitution).
In this case, given the prejudices that are, in that they relate to the existence of the person, for ease of synthesis can be described and defined as existential, but without potentially constituting a separate category of damage. Other
prejudices related to the existential relational sphere of the person, but not resulting from physical and mental injury, and therefore outside the scope of the biological damage (including, according to settled law, and both. "Cosmetic damage" and that the. "damage to human relationships"), will be compensated if they are following the injury of a person other than the inviolable right of the right to physical or mental integrity.
hypothesis that is the case (considered by decision No 6607/1986) that the offense, causing a person married to the impossibility of sexual relations is immediately and directly impairing the right of the spouses of these reports, which law mutual-duty, related to the individual, structuring, together with the other mutual rights and duties, the relationship of marriage. In this case the injury is due to violation of the inviolable rights of the family of the spouse of the victim in his physical or mental integrity.
3.5. The type of injury existential, as mentioned above, is therefore compensable only to the extent constitutionally qualified marked by the injustice of the event of damage. If there is no infringement of constitutionally inviolable rights of the person is not given compensation claims.
To overcome this limitation, it was proposed the argument that the constitutional importance should not do the interests affected, but the injury suffered. It is argued that, by affecting the injury of an existential type, consisting in the alteration of income do not, the person on the ball, only for what it must be recognized constitutional significance, without the need to investigate the nature of the interest infringed and consistency of its constitutional protection.
The thesis seeks to examine the constitutional significance with reference to the type of injury, damage-that is, therefore, not violated the law, that is harmful to the event, thereby confusing the plan to repair the injury with the injustice to be prove, and must be rejected. It is resolved substantially in repealing
surreptitious art. 2059 cc in his reading constitutionally because it erases the persistent limitation of compensation claims (other than in cases determined by law) to cases where non-pecuniary damage is the result of infringement of a person's inviolable right, that is, in the presence of injustice constitutionally qualified damaging event.
3.6. Another attempt to overcome the limits marked by the reading of Article constitutionally. 2059 cc is focused on the assumption that the existential damage is not identified with the infringement of a constitutionally protected right, but may result from an impairment of any property legally relevant.
The thesis is unacceptable because it amounts to bring the alleged injury under the discipline of art. 2043 cc, where compensation is provided as a general interest would lose significant for sorting, contradicting the declared principle of the typical non-pecuniary damage. And there is no prospect
declares that Article. 2059 cc, as invigorated by this Court in the judgments of 2003 twins, as it admits to compensation, outside the cases provided by law (and criminal cases are typical), prejudice resulting from the non-pecuniary damage not inviolable, but generate significant interest, since the minimum and indispensable protection for damages applies only to the injury of the inviolable rights (Constitutional Court. No 87/1979).
3.7. Exceeding the limits on the compensation claims of non-pecuniary damage, that remain as set out above, even after re-reading the Constitution in accordance with art. 2059 cc, can result from a rule of Community law providing for compensation for non-pecuniary damage without limits, because of the primacy of Community law over national law.
should be noted that the effect related to the validity of Community law is not of perishable nell'accezione of the term, this standard is incompatible, but to prevent that provision is raised for the settlement of the dispute before the national court (Corte cost. No 170/1984, No 1512/1998 on, Cass. No 4466/2005).
3.8. These sections together with the sentence no 6572/2006, addressing the issue of apportionment of the burden of proof in relation to the recognition of the worker's right to compensation professional biological or existential demotion or deskilling, as part of the employment relationship, defined existential damage, as any injury (non-emotional and purely internal, but objectively ascertained, caused the areddituale to the subject, which alter its habits and relationships that had its assets, causing it to different life choices as to expression and realization of his personality to the outside world. The decision was followed by other case law (No. 4260/2007, No. 5221/2007, No. 11278/2007, No. 26561/2007).
does not appear that these decisions, which move in the established nature of the contractual liability of the employer (thus placing the broad issue of Recoverability of non-pecuniary damage to debt default, which will be discussed later and positively resolved), to console the argument of those who shape the existential damage as a separate category, is intended to be relevant also outside the scope of employment. The judgments
identify specific prejudices existential breaches of contractual obligations under the employment relationship. In particular, the breach of the contractor to protect the physical integrity and moral personality of the employee (art. 2087 cc). Are given the rights of individual workers that are already protected by the Code of 1942, have risen under the Constitution, through Article. 32 of the Constitution, as to protect the integrity physics, and in art. 1, 2, 4 and 35 of the Constitution, as to protect the personal dignity of the employee, the inviolable rights, the injury which gives rise to compensation of non-pecuniary prejudice of an existential type, from breach of contract. It alleges, in substance, in a case of non-pecuniary damages in a contractual legislatively provided.
3.9. Clearly not deserving of compensation claims, invoked as an existential damage, they are prejudiced in substantial inconvenience, annoyance, disappointment, anxiety and any other type of dissatisfaction on the most disparate aspects of daily life that everyone leads in a social context, which Justice has provided protection instead of proximity. Not true, say you be compensated for, to invoke the rights of all imaginary, as the right to quality of life, the well-being, serenity: the ultimate right to be happy. Outside of the cases determined by ordinary legislation, only the violation of an inviolable right of the person is specifically identified source of responsibility for non-pecuniary damages.
In this sense, does injustice constitutionally qualified, was properly denied compensation to a person who claimed "stressed" due to the installation of a streetlight near your apartment for hindering peace and safety, ground that the interests mentioned unattended of constitutional rights (Judgement No. 3284/2008). [Editor's Note See Fool - Right to health and existential damage in American Lawyer]
And for equal reason was not admitted to compensation for the injury suffered the loss of a pet (a horse race) affect the lesion on a relationship between man and animal, free, in the arrangement order of constitutional cover (path n.14846/2007).
3.10. Compensation for alleged damages of existence has often been asked to justices of the peace and gave rise to the proliferation of and. bagatellari disputes.
With this formula we identify the causes consequential damages where the damage is trivial or insignificant, or, despite being objectively serious, however, according to the social consciousness, insignificant or irrelevant to the level reached.
In both cases there must be the lesion of interest in terms of injustice constitutionally qualified, it being otherwise excluded in the root (to the outside of that provided by law) to plead the art. 2059 cc
The difference between the two cases is the fact that in the first, in the area of \u200b\u200bdamage, a consequence of which is attached to the relief requested is a futile existential injury not serious (not being able to yell at the stadium, smoke or drink alcohol), while the second is the offense that has no of gravity, not to have been recorded over the right to a minimum: as in the case of the scratch the surface of the epidermis, the headache one morning resulting from the fumes from a factory, from the discomfort caused by a few hours' inability to leave home for the execution of road works of equal duration (the latter is not an inviolable right infringed, it is not to rank this right to freedom of movement in art. 16 of the Constitution, which can be limited for various reasons).
3.11. The seriousness of the offense is additional requirement for admission to non-pecuniary damages resulting from the injury to the person's constitutional rights inviolable. The right must be recorded over a certain threshold, causing a serious injury. The injury must exceed a certain threshold of offensiveness, making the injury so serious as to be worthy of protection in a system that requires a minimum degree of tolerance. The filter
the severity of the injury and the seriousness of the mistake through the balance between the principle of solidarity with the victim, and that of tolerance, with the result that the non-pecuniary damages is payable only if the level is exceeded tolerability and the injury is not futile. Prejudices characterized by futility each person listed in the complex social context must accept them under the duty of tolerance that coexistence requires (Article 2 of the Constitution).
Both requirements must be confirmed by the court according to the parameter constituted by the social consciousness at a given moment in history (criterion often used in labor, sent. No. 17208/2002, No. 9266/2005, or regulate, No Su 16265/2002).
3.12. The limits set by art. 2059 cc can not be ignored by the justice of the peace in cases of value not exceeding € eleven hundred, when he decided on an equitable basis.
The standard, in reading constitutionally granted by these sections together, by laying down general rules to protect non-economic damages, is the guiding principle in matters concerning compensation for non-pecuniary damage, that the justice of the peace, in matters to be decided according to equity, should be observed (Corte cost. No 206/2004).
3.13. In conclusion, it must be emphasized that the general category of non-pecuniary damage is not susceptible to division into subcategories variously labeled. In particular, it may be referred to a generic subcategory called "existential damage" because this means you end up wearing even the non-pecuniary damage nell'atipicità, if only through the identification of the apparent typical figure of the categorical existential damage, in which However, this case does not necessarily come together under the standard for the Recoverability of this type of damage, and this situation is not desired and needed by the ordinary legislator or constitutional interpretation of Article. 2059 cc, which is satisfied by the claim for redress of specific values \u200b\u200bof the inviolable rights of the second person manned by the Constitution (principles laid down by the judgments No. 15022/2005, No. 11761/2006, No. 23918/2006, which make these Sections together own) .
3.14. The considerations apply to give a negative answer to all questions, as petitioners to the existence of a separate category of existential damage.
4. 11 non-pecuniary damage resulting to the failure of the bonds, according to the prevailing view in doctrine and in jurisprudence, was not considered compensable. The obstacle was
ravvisato nella mancanza, nella disciplina della responsabilità contrattuale, di una norma analoga all'art. 2059 c.c., dettato in materia di fatti illeciti.
Per aggirare l'ostacolo, nel caso in cui oltre all'inadempimento fosse configurabile lesione del principio del neminem laedere, la giurisprudenza aveva elaborato la teoria del cumulo delle azioni, contrattuale ed extracontrattuale (sent. n. 2975/1968, seguita dalla n. 8656/1996, nel caso del trasportato che abbia subito lesioni nell'esecuzione del contratto di trasporto; sent. n. 8331/2001, in materia di tutela del lavoratore).
A parte il suo dubbio fondamento dogmatico (contestato in dottrina), la tesi non risolveva la questione del risarcimento del danno non patrimoniale in a broad sense, since him back, in relation to the action tort, within the strict limits of Article. 2059 cc in conjunction with art. 185 cp, so that the compensation was subject to the qualification of tort law as a crime and was still restricted to the subjective moral damage.
from the constraints of Article. 2059 cc evaded the biological damage, action in the tort, with its inclusion in art. 2043 cc (Corte cost. No 184/1986).
4.1. The interpretation of Article constitutionally. 2059 cc can now say that even in the field of contractual liability is due to the non-pecuniary damages. From the beginning
recognition of the need for the inviolable rights of the person, the minimum protection consists of the compensation, it follows that the lesion of the inviolable rights of the person who has given a non-pecuniary damage includes the obligation to compensate the damage, whatever the source of responsibility , contract or tort.
If the breach of the obligation shall, in addition to the breach of the obligations of economic employed under the contract, including the infringement of a person's inviolable right of the creditor, the protection of non-pecuniary damages can be paid in the action of responsibility contract, without recourse to the expedient of a combination of actions.
4.2. What interests non-capital may be relevant in the context of contractual obligations, is confirmed by the provision of Article. 1174 cc, according to which the provision was the subject of the obligation must be capable of economic assessment and should correspond to an interest, whether or not capital, of the creditor.
The identification, in relation to the specific case of contract, including interest in the contract that, in addition to those in financial content, present a non-asset, should be conducted to ascertain the cause of the actual shop, to be understood as a synthesis of the real interests that the contract is intended to establish, beyond the model, also typical, used; sintesi, e dunque ragione concreta, della dinamica contrattuale (come condivisibilmente affermato dalla sentenza n. 10490/2006).
4.3. Vengono in considerazione, anzitutto, i ed. contratti di protezione, quali sono quelli che si concludono nel settore sanitario. In questi gli interessi da realizzare attengono alla sfera della salute in senso ampio, di guisa che l'inadempimento del debitore è suscettivo di ledere diritti inviolabili della persona cagionando pregiudizi non patrimoniali.
In tal senso si esprime una cospicua giurisprudenza di questa Corte, che ha avuto modo di inquadrare nell'ambito della responsabilità contrattuale la responsabilità del medico e della struttura sanitaria (sent. n. 589/1999 e successive conformi, che, As to the structure, applied the principle of liability to be qualified social contact), and to recognize protection, in addition to the patient, to others, which extends the protective effects of the contract, and therefore, in addition to the pregnant woman, the unborn child, subject at birth (Judgement No. 11503/1003, No. 5881/2000) and his father, in case of failure to diagnose fetal malformations and subsequent unwanted births (Judgement No. 6735/2002, No. 14488/2004; No. 20320/2005).
The above entities, as appropriate, had suffered the injury in the inviolable right to health (art. 32, paragraph 1 of the Constitution), in terms of biological damage both physically and psychologically (Judgement No. 1511/2007) ; law inviolabile all'autodeterminazione (artt. 32, comma 2, e 13 Cost.), come nel caso della gestante che, per errore diagnostico, non era stata posta in condizione di decidere se interrompere la gravidanza (sent. n. 6735/2002 e conformi citate), e nei casi di violazione dell'obbligo del consenso informato (sent. n. 544/2006); dei diritti propri della famiglia (artt. 2, 29 e 30 Cost.), come nel caso di cui alle sentenze n. 6735/2002 e conformi citate.
4.4. Costituisce contratto di protezione anche quello che intercorre tra l'allievo e l'istituto scolastico. In esso, che trova la sua fonte nel contatto sociale (S.u. n. 9346/2002; sent. n. 8067/2007), tra gli interessi non patrimoniali da realizzare rientra quello alla integrità fisica dell'allievo, con conseguente risarcibilità del danno non patrimoniale da autolesione (sentenze citate).
4.5. L'esigenza di accertare se, in concreto, il contratto tenda alla realizzazione anche di interessi non patrimoniali, eventualmente presidiati da diritti inviolabili della persona, viene meno nel caso in cui l'inserimento di interessi siffatti nel rapporto sia opera della legge.
E' questo il caso del contratto di lavoro. L'art. 2087 c.c. ("L'imprenditore è tenuto ad adottare nell'esercizio dell'impresa le misure che, secondo la particolarità del lavoro, l'esperienza e la tecnica, sono necessarie a tutelare l'integrità fisica e la personalità morale dei prestatori di lavoro"), inserendo nell'area employment interests not capable of economic assessment (the physical and mental harm) already implied that, if the breach had caused their injury was caused by the non-pecuniary damages.
The management of such interest of the person by the Constitution, which has elevated them to inviolable rights, has also reinforced protection. With the result that their injury is likely to give rise to compensation for the damage, in terms of injury to mental (Article 32 of the Constitution) in the manner of biological damage, or injury to the dignity of the worker ( Articles. 2, 4, 32 of the Constitution), as is the case prejudice to the professionalism of deskilling, which results in impairment of the expectations of the worker's personality development that takes place in the social formation provided by the company. Assuming
last seen speaking, in the jurisprudence of this Court (Judgement No. 6572/2006), the existential damage. Nominalistic definition that has value primarily as a result of the non-pecuniary damages that are considered are nothing but prejudices relating to the conduct of the professional life of the worker, and then against an existential type, allowed to claim on the lesion in the area of contractual liability, and therefore inviolable rights of injustice constitutionally qualified.
4.6. As for the contract of carriage, the protection of physical integrity is transported between the obligations of the carrier, which is liable for accidents that affect the person of the traveler during the trip (art. 1681 cc).
The carrier is then obliged to pay under the contractual liability of the biological damage in the accident reported by the traveler. Where there is possibility of failure-crime (bodily harm), the principles will be worth to cover the case of non-economic loss from the offense, including in relation to the hypothesis plurioffensivo the offense, and will be given compensation for non-pecuniary damage in its wide sense.
4.7. Within contractual liability of the damages will be governed by rules established in the field, to be read in the sense constitutionally.
Article. 1218 cc, in so far provides that the debtor does not perform exactly the benefit payable shall provide compensation for damages can not be referred to only financial loss, but must be considered including non-pecuniary damage, where the breach has resulted in lesion of the inviolable rights of the person. And equal broader content is found in art. 1223 cc, that damages for breach of contract or for the delay should understand that the loss suffered by the creditor as loss of profits, as they are the consequence immediately and directly, by reducing losses from lost profits and even the prejudices of non-pecuniary damage stemming from the rights mentioned.
On the other hand, the protection of the inviolable rights for compensation, affected by the failure of bonds, will be subject to the limit in art. 1225 cc (not operating in the field of tort liability in the absence of reference in art. 2056 cc), while remaining outside of cases of fraud, limited compensation for the damage that could predict the time when the debt arose.
The constitutional rights that the injury will automatically render the terms of exemption or limitation of liability, pursuant to art. 1229, comma 2, cc (E'nullo any prior agreement or waiver of the limitation of liability for cases in which the fact of the debtor or its agents constitutes a breach of obligations arising from rules of public order).
will be worth the sector specific rules about the burden of proof (as specified by Sec. A. No. 13533/2001), and prescription.
4.8. The damages to the person must be integral, in that it must restore fully the injury, but no further.
has already stated that the non-pecuniary damage under Article. 2059 cc, identifying with the damage caused by the lesion of interest inherent in the person characterized by economic importance, unitary category is unsuitable for subdivision in sottocategorie.
Il riferimento a determinati tipi di pregiudizio, in vario modo denominati (danno morale, danno biologico, danno da perdita del rapporto parentale), risponde ad esigenze descrittive, ma non implica il riconoscimento di distinte categorie di danno.
E' compito del giudice accertare l'effettiva consistenza del pregiudizio allegato, a prescindere dal nome attribuitogli, individuando quali ripercussioni negative sul valore-uomo si siano verificate e provvedendo alla loro integrale riparazione.
Viene in primo luogo in considerazione, nell'ipotesi in cui l'illecito configuri reato, la sofferenza morale. Definitivamente accantonata la figura del ed. danno morale soggettivo, la sofferenza morale, senza ulteriori connotazioni in termini di durata, integra pregiudizio non patrimoniale. Deve tuttavia trattarsi di sofferenza soggettiva in sé considerata, non come componente di più complesso pregiudizio non patrimoniale. Ricorre il primo caso ove sia allegato il turbamento dell'animo, il dolore intimo sofferti, ad esempio, dalla persona diffamata o lesa nella identità personale, senza lamentare degenerazioni patologiche della sofferenza. Ove siano dedotte siffatte conseguenze, si rientra nell'area del danno biologico, del quale ogni sofferenza, fisica o psichica, per sua natura intrinseca costituisce componente. Determina quindi duplicazione di risarcimento la congiunta attribuzione del danno biologico e del danno morale nei suindicati termini inteso, sovente liquidato in percentuale (From third to half) of the first. Excluding the viability of this operation, the court shall, if it makes use of the known tables, carry out proper customization of the liquidation of the biological damage, assessing the consistency in their actual physical and mental suffering endured by the victim in order to reach the rest of the damage in its entirety. Also determines the joint award duplicative damages for pain and suffering, in his renewed layout, and the damage from loss of the parental relationship, as the suffering endured when the loss is perceived and that which accompanies the existence of the person 's has suffered are simply components of the complex injury, which is a compact and fully restored.
may consist of only "rumors" of biological damage in its dynamic aspect, in which, for a consolidated review, and is now accounted for. damage to human relationships, prejudice concerning existential relational aspects of life, injury resulting from physical and mental integrity, so that would lead to duplication of their distinguished service.
course included in the biological damage, whether arising from injury to mental, is the prejudice against loss or impairment of sexuality, which can not, on pain of incurring damages duplication, perhaps separate compensation (other than as stated by the sentence n . 2311/2007, that rises to the existential self-harm). And it would also
duplication where the injury consists in the physical alteration of a cosmetic nature was paid separately and not as "voice" of the biological damage, and that the. peacefully incorporates aesthetic damage.
The court may instead recognize and properly settling the only material damage, a relief of mental suffering experienced by the victim of physical injury, which is followed shortly after the death, which has been polished during the agony of waiting in conscious end. Is avoided given the lack of protection by the law that denies the legitimacy, in the case of immediate death or occurred a short distance from the event adversely affecting damages for loss of biological life (Judgement No. 1704/1997 and subsequent compliant), and admits the loss of health only if the individual has been alive for a considerable time, which defines man (sent . No 6404/1998 and subsequent compliant). One such mental suffering, even if the maximum intensity of life contained, they are not likely, because of the limited time interval between injury and death, to degenerate into disorder and result in biological damage, it should be compensated as moral damages, in its new broadest sense.
4.10. The non-pecuniary damage, even if it is determined by the lesion of the inviolable rights of the person, is consequently damage (Cass. No 8827 and No 8828/2003; No 16004/2003), which must be attached and tested.
should be rejected, in fact, the argument that identifies the damage by the harmful event, speaking of "damage event". The thesis set out by the Constitutional Court Judgement No 184/1986, it has been overtaken by subsequent sentence no 372/1994, followed by this Court in the judgments of the twin 2003.
It also rejected by the variant is formed by the statement that in case of injury to the person values \u200b\u200bthe damage is in re ipsa, because the argument to alter the function of compensation, which would be awarded not as a result of actual determination of damage, but as a punishment for conduct detrimental to private.
As regards the media test for the biological damage to existing legislation (Articles 138 and 139 of Legislative Decree no. 209/2005) involves assessment of medico-legal. It is the means of investigation which is currently used, but normally not raised to the unique and necessary tool. Just as it is within the powers of the court rejected, justifiably, the views of the expert, the court also may not have the forensic investigation, not only in the event that the inquiry direct the person is not possible (because they died or for other reasons), but also when it deems it, justifiably, superfluous, and lay the foundation of its decision to all other relevant information obtained in the process (documents, testimonies), make use of concepts of common experience and assumptions. For other non-pecuniary prejudice may be recourse to witnesses, documents and presumptive. Doing the damage (not biological) to an intangible asset, the use of presumptive test is expected to have particular importance, and may be the only source for the formation of the conviction by the court, as it is not evidence of lower rank to others (see, among many others, sent. No 9834/2002). The victim, however, will attach all the elements which, in the particular case, be appropriate to provide the connected series of events that allow to trace the unknown fact.
B) No Action 734/06
1. The first complaint is the alleged infringement and false application of Article. 345, paragraph 1, Code of Civil Procedure, in force prior to 30.04.1995, and lack of reasoning on the decisive point, in reference to the inadmissibility of the asserted claim of existential damage.
The applicant complained that the first appeals court has ruled that the claim of existential damage constituted a new claim without considering that it was the mere repetition of the requests it made in first grade. He said that, at those meetings, we had specifically referred to the individual items of damage (aesthetic, the social life, sex life), which were then recompressed the definition of existential damage, had not yet processed, and criticizes the ruling for giving relief to the legal classification given to the request, rather than the facts underlying the original question: the same circumstances, as was pointed out by the reading of the summons and to appeal (the whose steps are shown in the application), and on the state of distress that poured in showing no one testicle, with consequent negative effects on the ball for his own sexual relations.
then maintains that the lower courts had wrongly considered that the concept of health damage extending to actual harm to the existential sphere, which concerns the infringement of other interests instead of constitutional law relating to the person (who nella specie potevano ritenersi provati anche mediante ricorso a presunzioni).
2. Con il secondo motivo è denunciata violazione e falsa applicazione dell'art. 345, comma 1 e 2, c.p.c. nel testo vigente prima del 30.4.1995, con riferimento alla affermata inammissibilità della prova richiesta in appello in punto di disagio del leso nel mostrare i propri organi genitali e delle conseguenti limitazioni dei suoi rapporti sessuali.
La sentenza è censurata per aver ritenuto inammissibile la prova testimoniale articolata in appello sul senso di "vergogna" provato dal ricorrente nei momenti di intimità interpersonale e sul suo conseguente desiderio di limitare nel numero e nel tempo i rapporti sessuali.
Si sostiene che, una volta escluso che had been given a new claim, Article. 345, paragraph 2, Code, previously in force in the formulation, it would not be an obstacle to the admission of testimonial evidence, but found inadmissible because it concerned a question incorrectly described as new, and as such unacceptable.
2.1. The first reason is founded in directions that follow.
The considerations in examining the issue of particular importance for considering the effect of social relations, even in appearance on sexual intercourse, when a lesion depends on the person's physical and mental integrity, is one of the possible reflections negative for the physical injury which the court must take into account in the assessment of biological damage, and can not be relied upon as a distinct way of damages, and in particular for the damage "existential" (paragraph 4.9).
the biological damage is in fact recognized comprehensive scope tendency confirmed by the legal definition adopted by the d. lgs. No 209/2005 laying down the Code of Private Insurance (for biological damage means the temporary or permanent injury of psycho-physical person, capable of medico-legal assessment, which exerts a negative impact on daily activities and aspects dynamic and relational life of the victim, regardless of any impact on its ability to produce income "), which can be adopted as a general rule, even in fields other than those typical of the sedes materiae in whom it was said, having transposed the legislature about the results, now generally acquired and shared a long development of doctrine and jurisprudence . In it are therefore captured by the prejudices related to "the dynamic and relational life of the victim."
And the existential damage can not be accorded the dignity of autonomous subcategory of non-pecuniary damage (paragraph 3.13).
In this case, at first instance , the plaintiff had alleged, among prejudices are denounced, those relating to limitation of sexual activity in his interpersonal relationships, describing injury as existential. The first judge had recognized the biological damage, regardless of the reported matters related to the relational life. Of what was reported, with the appeal, the plaintiff and had requested evidence to support the raised profile of the damage, describing it as an existential (evidence that could be obtained in the second degree, pursuant to art. Cpc 345 in the text previously in force , in the case of proceedings brought before 30.4.2005). But the territorial court found that new demand and thus inadmissible evidence.
The decision is incorrect.
The claim for compensation for damage suffered on the limitation of sexual activity of injured was not new, as it is uniquely clear from the deductions substantially identical content of the first and second degree, beyond the claim of "existential damage" subject made by the third ground of appeal, appeal in which the current applicant had doluto of inadequate consideration of consequences of the type of injury sustained in relation to his age at the material time (45 years) and the marital status of being unmarried.
The territorial court has, therefore, improperly relied on the nomen iuris assigned by the appellant to claim that the injury is considered timely and that had already been predicted in the first instance, where he was also properly viewed in the context of the damage biological.
3. The acceptance of the first reason by analogy follows that of the second, since the appeals court ruled that the testimonial evidence was admissible for the sole reason that it referred to a question wrongly considered new.
4. The sentence should therefore be quashed.
5. The national court, which is designated in the same court of appeal in different composition, will not necessarily make the admission of testimonial evidence, without his having to consider foreclosed real - even against an inference of prediction - that the lesion in question has produced the consequences that aims to prove by witnesses and to proceed, therefore, possible customization of the claim (in this case, of biological damage), which has never precluded the closure on the basis of point differential in the value table, particularly in light of the relief that the consultant office has allegedly decided not to attach importance in determining the degree of permanent disability percentage, discomfort that causes impairment in these moments of intimacy (and its consequential reflections).
6. The national court also liquidate the costs of appeal.
7. Requirements are met in art. 52, paragraph 2, of Legislative lgs. June 30, 2003, No 196, for the protection of personal data. PQM

The Court accepts the appeal, and cash returns, including expenses, to Court of Appeal of Venice in a different formation;
provides that in case of dissemination of the above in any form for purposes of legal information, magazines, electronic media or through electronic communications networks, is an indication of the general failure and other identifying information of those concerned.
Rome, June 24, 2008 The writer

President
THE REGISTRAR
FILED TODAY November 11, 2008