When is „fairness“ violated in determining compensation?

Non-pecuniary damage is subject to compensation, the amount of which is determined by the court, which observes the principle of justice. Property damage, in turn, is compensated according to its value as it was caused or should have been caused.

When a person has suffered damages as a result of an unlawful act (e.g. a traffic accident, assault, medical error, etc.), they are entitled to compensation. The damages suffered can be in the form of real financial losses (treatment costs, purchase of medicines, hospital stay) or those that have no financial expression – this is what the law calls „non-pecuniary damages“.

What constitutes „fairness“ in determining compensation?

Case law assumes that fairness is a measure for determining compensation in a tort. This is not an abstract concept, but always implies an assessment of objectively existing, specific circumstances and facts.

For example, in the case of physical disabilities, the following are taken into account:

• the nature of the injury;
• the method of its implementation;
• further deterioration of health status;
• the moral suffering caused;
• mutilations;
• threats, etc.

These circumstances must be adequately analyzed and assessed, individually and in their entirety, indicating their significance in relation to the content of the injury. The aim of case law is to bring the concept of justice as we understand it in a real-life sense, and accordingly in our legal acts.

And when exactly does the court violate "justice"?

When the court has only listed the facts relevant to determining the compensation, but has not motivated an assessment conclusion about their contribution to the type and scope of the damages or has incorrectly assessed the latter. Its assessment also requires taking into account the public understanding of the concept of "justice", formed on the basis of the socio-economic conditions at the time of the event.

In other words, if the court has not conducted the necessary analysis and has not sufficiently taken into account their importance when determining the amount of compensation, we have an unfair decision that will be subject to reversal upon appeal.

When it comes to specific objectively existing circumstances, they do not constitute the content of the concept of justice, but are elements of reparation, which should be repaid precisely when following the principle of justice. It follows from this that the latter concept in cases should not remain undefined, so as not to lead to the impossibility of following the mechanism of determining the final amount of compensation for non-pecuniary damage.

What specific case study answered this question?

In a traffic accident in 2015, the victim suffered multiple injuries, for which he was awarded compensation in the amount of BGN 140,000 by the insurer of the at-fault driver under "Third Party Liability" insurance!

To define this amount as "fair", the court has specifically reported:

• The number, type and severity of physical injuries – traumatic shock, chest contusion, fractures of almost all ribs, numerous other fractures, contusions and dislocations;
• Duration of the treatment and recovery period – 20 days of hospital treatment, followed by 24 days of physiotherapy and rehabilitation; 6 months of inability to self-care; total recovery period – 2-3 years;
• The intensity of the pain and suffering endured;
• The age of the victim at the time of the accident;
• Additional negative experiences – 6 months in bed, moving in a wheelchair and subsequently with crutches, difficulty in self-care;
• The health consequences and the prognosis for his future health – movement deficits, speech disorders, memory impairments and difficulties in spatial orientation;
• The socio-economic conditions in the country at the time of the insured event.

All of the above facts must be proven. The person responsible for the incident will also have a lawyer and will defend themselves, seeking to refute your allegations.

In view of this, our team can provide you with a consultation to advise you on whether your claim would be justified. The consultation may be free of charge if the lawyer considers that the legal prerequisites for this are met. According to the Law for the bar, the lawyer may provide free legal assistance and assistance to: persons entitled to maintenance; persons in financial difficulty; relatives, close friends or another lawyer.

If you wish to protect your rights, our team can represent you in both criminal and civil proceedings.

It is extremely important before filing a lawsuit to conduct a full analysis of the situation, to assess all possible evidence that must be secured and, last but not least, to determine the exact amount of the claim. If the claim is filed in full, then the country's expenses will be awarded in full and she will not be liable to pay the costs of the opposing party.