Important Clarifications by the Tbilisi Court of Appeals on Non-Pecuniary Damage

The Civil Code of Georgia recognizes non-pecuniary damage alongside pecuniary damage, regulating the procedures and conditions for awarding moral damages. Although the imposition of moral damages does not have a long history in Georgian legislative practice, it is gradually developing through judicial practice. In European countries' legislation, non-pecuniary damage is defined as "physical and moral suffering," whereas the Georgian Civil Code does not provide a specific definition. One of the main legal bases for claims regarding non-pecuniary damage is Article 413 of the Georgian Civil Code.

I would like to discuss a very interesting decision of the Tbilisi Court of Appeals regarding compensation for non-pecuniary damage (case #№330310018002728125).

On April 5, 2008, a traffic accident resulted in the death of an employee of the Ministry of Internal Affairs who was on official business. The driver noticed a child crossing the road. To avoid hitting the pedestrian, the driver sharply turned the steering wheel to the right, thus avoiding collision, but was unable to maintain control of the vehicle, which veered off the road, collided with a curb, and then hit a street lighting pole. As a result of the accident, the passengers in the vehicle sustained various injuries; one of the passengers died at the scene.

Investigation found that "in the given situation, the driver could not have technically avoided the accident and no violation of the Traffic Safety Law of Georgia was observed in his conduct." Criminal prosecution against the driver was terminated under the Law of Georgia on Amnesty dated December 28, 2012.

The passenger's death was deemed an incident occurring during the performance of official duties, and the family was granted a one-time compensation of 15,500 GEL as stipulated by the Law of Georgia on Police.

The deceased’s family members demanded compensation of 150,000 GEL from the Ministry of Internal Affairs of Georgia for the purchase of a two-room apartment at market value; as well as compensation from the date of death throughout the duration of the lawsuit, and 50,000 GEL (fifty thousand GEL) as moral damages.
The Court of Appeals satisfied the appellant’s (plaintiff’s) claim regarding compensation for non-pecuniary damage.

The Chamber emphasized the question — should moral damages be compensated to a parent for the death of their child? The Chamber answers affirmatively due to the following circumstances: primarily, it should be noted that the basis for compensation is usually the damage caused by intentional or negligent breach of official duties, however, in real life there are many instances where damage is caused by the conduct of an official without breaching official duties (such cases in European law are referred to as "Administrative Damages in Tort"). This serves as the basis for claiming damages from the administrative body where the official works (Article 997 of the Civil Code). The Court of Appeals explains that the indescribable moral trauma suffered by a parent due to the death of a child is unquestionably evident. This trauma is equated with mental suffering and physical pain. The basis for compensation of moral damages is the spiritual and physical suffering of the victim caused by an act (or omission) that infringes the legally protected non-material good of the citizen.

Moral damages are compensated independently from the compensation of pecuniary damage. Compensation for moral damages should be based on the degree of physical and moral suffering endured in each specific case. Accordingly, the criterion determining the persons entitled to compensation for moral damages is the infliction of physical or moral suffering upon the individual. Moral damage is present when there is a negative change in a person’s psyche, expressed as physical and moral suffering. In determining compensation, the severity of the damage plays a decisive role; mild physical pain is not considered, but where damage involves generally expected severe psychological distress, mental suffering, etc., such as the death of a close person (spouse, child, mother, father, sister, brother), a so-called presumption of moral damage applies and, until proven otherwise by the injurer, it is presumed that the person suffered severe mental anguish.

Generally, legal systems include rules and principles of moral proofs. Judges must consider different viewpoints and reach decisions that make the law as morally sound as possible. Objective law, which does not provoke disputes, is merely a collection of past official decisions made by legislators and judges. Moral evaluation is an inseparable part of law (Dworkin's theory). In the given case, the court is obliged to assess the issue of compensation for moral damage caused to a parent by the death of a child not only based on positive law but also natural law, which holds that any act violating inherent natural rights and duties is considered morally unjustifiable wrongdoing. These are rights and duties inherently belonging to a person, whose protection is imposed by the nature of their living, rational existence. Although such an approach was established centuries ago, the Chamber considers it alive and relevant today. Human reason, as a thinking substance beyond positive law, also recognizes the fundamental inherent rights and duties that define and justify human existence. In this context, it would contradict these principles to claim that a parent did not suffer moral damage due to the death of a child and that evidence should be presented to prove such damage; moral damage is evident even without evidence.

According to the decision of the Supreme Court of Georgia, "moral damage is the mental distress and physical pain experienced by a person as a result of an unlawful act. It is undeniable that a parent experiences significant moral pain due to the death of a young child, which is associated with prolonged negative emotions and stressful conditions.

The plaintiffs claimed moral damages not as successors of the deceased child’s rights, but personally as those morally affected by the child's death, which are fundamentally different cases. The European Court has explained that when there is a violation of fundamental articles of the Convention (Articles 2 and 3), and national legislation does not provide for the possibility of moral compensation, such omission violates Article 13 of the European Convention — the right to effective legal remedy....

In determining the amount of moral damages, the court considers circumstances such as the severity of the established harm, the victim's subjective attitude towards the moral damage, the intensity of feelings, the significance of the infringed right, among others. Additionally, it should be accepted that considering the specifics of moral damage, the primary purpose of compensation is restitution of the infringed right, since the damage caused has no monetary equivalent. The aim of compensating moral damage is to alleviate the pain and negative feelings caused by the moral damage and to evoke positive emotions. Compensation for non-pecuniary damage cannot restore the victim's mental state before the infringement; its purpose is not to alleviate suffering caused by material damage but to reduce the severity and intensity of negative emotions. Compensation for moral damage is determined monetarily by the court independently of the compensation for pecuniary damage. The scope of compensation for moral (non-pecuniary) damage is determined both by the severity of the damage and the degree of fault. At the same time, the compensation amount should not be excessively increased and unattached to the economic capabilities of the specific country."

This decision by the Tbilisi Court of Appeals is not yet legally binding. I consider the Chamber's explanation as a starting point for establishing new practice. The court provides a well-reasoned clarification on the issue of compensation for non-pecuniary damage, which is directly related to the immense mental suffering inflicted on a parent by the death of a child.

Mariam Sichinava
Georgian Lawyers for an Independent Profession