More often than not, this is the first question victims having suffered some form of personal injury pose to their lawyers. Having passed through the initial stages of trauma and shock, and after months of seeking medical advice and footing bills, the victims of an accident then start to seek legal redress in an attempt to recuperate the damages and expenses they would have endured – and have yet to endure – as a consequence of the usually life altering accident.

Chapter 16 of the Civil Code of Malta is the regulating force as to which form of compensation is to be given to the victim by the person having caused said damage.

Effectively, there are two main heads of damages that the court will establish and quantify and eventually liquidate, these being damnum emergens – actual financial loss suffered as a consequence of the tortious event – and lucrum cessans – the loss of future earnings arising from any permanent disability having occurred as a consequence of the accident.

Damnum emergens encompass actual, direct tangible losses the victim would have suffered such as medical bills, costs incurred/costs to be incurred to make good any damage caused to property as a consequence of the accident, for example vehicle repairs, and loss of actual wages or other earnings amongst others. This is therefore calculated by means of a simple addition exercise.

The other head of damages, that is, lucrum cessans, covers the loss of future earnings arising from any permanent incapacity, be it total or partial, which the act may have caused to the victim, and this form of damage is calculated on a case-by-case basis. The Maltese Civil Code does not explicitly outline the calculation that the Court must undertake, however over the years, case-law has given Court a guideline as to how said damages are to be calculated, and this always on a case-by-case basis.

There are three main figures that the Court takes into consideration to make said calculation:

1. The injured party’s net annual income
2. The years left until the age of retirement
3. The percentage of disability suffered

The determination of the years the injured party has left until the age of retirement is not always a simple deduction from the age of 65, however. Case-law has established the age the Court will include in its deduction based on the range the victim’s age falls in, whilst also taking into consideration any medical conditions suffered by the victim prior to the accident, that may impact their life expectancy.

With respect to the percentage of disability suffered, the Court will appoint a medical expert to examine the injured party and determine said percentage of disability particularly how this disability will affect the injured party’s life and their earning capacity. In cases where the injured party has lost their life, the percentage of disability is established at one hundred percent (100%).

There are obviously some circumstances where the injured party does not earn an annual income, such as is the case with housewives. In this case, the Court will consider the housewife’s potential earning capacity despite said individual not having been in paid employment before the accident, in effect recognising that said individual would have lost, or partially lost, the potential to earn. This however is all determined on a case-by-case basis.

Having established the above, the Court will begin by taking into consideration the injured party’s net annual income multiplying this by the number of years left until the age of retirement and the percentage of disability. Depending on the case at hand, the Court can then make a lump sum reduction from this amount, which is usually in the sum of 20%, with said reduction being made when a short period of time has lapsed between the date of the accident and the date of final judgement delivered by Court. Case-law has established that the 20% is to be reduced by 2% for every year of delay. Once again, the application of said reduction is taken on a case-by-case basis.

At this stage, the Court will also consider whether there was any form of contributory negligence attributable to the injured party. If so, the Court will go ahead and make the necessary deductions as it deems fit according to the case at hand. Furthermore, the Court will also consider the rates of inflation with respect to wages and any other income the injured party may be entitled to, and make said addition accordingly.

To the lucrum cessans sum, the Court will then go ahead and add the sum due by way of damnum emergens including any future medical expenses that the injured party will have to incur, thus establishing the final sum due to the injured party. In its final judgement, the Court generally also orders the tort-feasor to pay legal interest at the rate of 8% on the sum established, until such payment is effected.

Despite being practically impossible, the aim of these court cases is to, as much as possible, put the injured party back into the position they would have been in prior to the accident, what is known as restitutio in integrum.