DOES EVERYONE DIE SUFFERING? TERMINAL NON-PECUNIARY DAMAGE. A PRIMARILY MEDICO-LEGAL ISSUE

The hermeneutic process relating to the compensability of damages deriving from an unlawful act that results in the death of a person is broad and not free from doctrinal and jurisprudential interpretative divergences. In the event of the death of the victim, in fact, there is a propagation of the prejudicial consequences of the event that produces effects on the survivors of the primary victim, who may bring an action before the Judge requesting compensation for damages. Among the non-pecuniary damages suffered iure hereditatis, there is the terminal damage which – as things stand at present – is based on the principle of unity and all-inclusiveness, enunciated by the Milanese Tables published in 2018, such that within this damage item the biological and suffering aspects connected to the perception of imminent death must be considered included. The Authors therefore propose a criteria for the quantification of the compensation for terminal damage, by means of a retrospective study, in which the motivations attached to 55 sentences of the Italian Courts, present on the Telematic Services Portal (PST) of the Ministry of Justice, were analyzed. The study investigated the compensation modalities of non-pecuniary damage and the reference parameters in the determination of the “quantum debeatur”, whether these are homogeneous throughout the country and whether, following the publication of the Milanese Tables, the hoped-for uniformity in the liquidation of this item of damage has been achieved.Is it possible to attempt – within the limits of what is technically ‘permissible’ – to scientifically parameterize/graduate the terminal suffering aspects? Can a judge subjectively decide for himself how much he ‘pays’ for the perception of imminent death? Does he have all the technical elements suitable to monetize the value of the last days of life resulting from a tort? Having ascertained the lack of homogeneity in the judges’ evaluation system and with the intention of “objectivising”“ the evaluation of this damage, the authors have proposed a number of criteria that are easy to use and apply in order to assist the judge in the arduous task of attributing a “value to death”.