Moral damages in personal injury cases: UAE Law and judicial practice

By On Dec 22, 2020

In the UAE, an applicant can seek moral damages to offset non-financial losses. This form of compensation is not given to punish the accused, but rather as reparation for bodily harm caused by an accident that inevitably causes pain and suffering to both the victim and his family. The question is when is damage recoverable for this type of injury in the UAE. This article examines the problems related to identifying and quantifying moral harm in the UAE with reference to the case law.

Bodily harm is associated with sensory pain in the victim, which is the physical impact of injury. Nonfatal physical injuries also have a psychological and an emotional component, including those associated with physical disfigurement. According to the Ministry of Justice’s comment on the Civil Transactions Act (Federal Act No. 5 of 1985; “Civil Code”), mourning, shame and distortion are considered moral harm. The victim may also feel inadequate because of a physical disability or fear for their family’s future and the ability to care for them. These are all entitled to compensation for moral harm; However, the practice of the courts in the UAE varies.

The position according to UAE law

There is no explicit UAE law allowing reimbursement of moral damages resulting from or related to personal injury. However, Article 293 of the Civil Code provides:

The right to compensation includes moral harm, and a violation of someone else’s freedom, dignity, honor, reputation, social standing, or financial credit is considered moral harm.
It is permissible to make an order for compensation for moral harm inflicted on a spouse or relative of the family as a result of the death of the victim.
The right to compensation for moral harm cannot be transferred to a third party unless the amount has been determined by agreement or a final court order.

Although Article 293 (1) refers to the tort, the UAE courts have granted compensation for moral damages under contractual liability as well.

The UAE courts also use Article 293 (2) of the Civil Code to give spouses and relatives the right to seek moral damages for the death of a victim. However, many trial attorneys argue that it is not reasonable to allow a surviving relative to recover from the pain and suffering caused by the death of a relative, but not to allow the victim to recover from their own suffering when Occurring his injuries are not fatal.

The explanations of the Ministry of Justice also contain explanations on the regulation of the transferability of the right to reimbursement of moral damages. The right also applies to compensation payable to a spouse or relative. Such compensation is only passed on to the heirs if it has reached an amount determined by judgment or agreement. “

The UAE Courts Approach to Moral Damage Reclamation

The UAE courts have consistently allowed moral damage recovery in personal injury cases.

In the judgment of the Federal Court of Justice, Cassation No. 322 of 1994, the Federal Court of Justice ruled:

“It is decided that moral damage in addition to material damage is recoverable without the risk of double recovery.”

The Dubai Court of Cassation also ruled:

“The determination of damage is a matter of fact for the court. The appellate court determined the elements of material and moral damage in assessing the respondent’s claim for damages. These elements were found to be the respondent’s various physical injuries and the consequences of a medical treatment leave. Her moral harm includes pain, grief, and distress over what she has endured. The relevant exception to the decision of the court of appeal is accordingly unfounded. On the basis of the above, the application for cassation is rejected. “(Cassation No. 345 of 1999 [Civil]).

The right of a spouse and relative to receive compensation for moral harm

A victim’s family can request compensation for injuries suffered by a victim in an accident. Their suffering could be severe if the victim’s injuries were fatal. A number of principles and statements in UAE case law illuminate the courts’ approach to family member recoverability.

As mentioned above, the spouse and their loved ones can seek moral damages for the death of the victim. At the time of death, there must be a valid marriage and “relatives” are defined as family members. Article 76 of the Civil Code provides that “1. The person’s family consists of their spouse and relatives. 2. All persons who come from a stock are considered relatives. “

As such, relatives can be direct, like a daughter or son, or collateral, like siblings. The provision does not specify a degree of kinship and leaves it to the courts to judge everything on a case-by-case basis. Members of the family who suffered moral harm from the death of the victim would then need to be identified, bearing in mind that in-laws and anyone with no common stock are not entitled to compensation under Article 76.

Article 293, paragraph 2, cites death as the sole basis for allowing qualified spouses and relatives to seek moral compensation for pain caused by bodily harm to the victim and would therefore, under its express terms, preclude the reparation of moral harm if the injuries were caused physical deformities or disabilities would lead to this. However, court rulings vary on this matter as explained below.

The Abu Dhabi Court of Cassation Approach to Restoring Oral Damage to Non-fatal Injuries

The Abu Dhabi Court of Cassation has ruled and the Federal Supreme Court has agreed that Article 293 (2) cannot be the basis for a right to recovery from non-fatal bodily harm. The Court of Cassation ruled, “This court has ruled that the law establishes the right to reimbursement for moral harm, and then determines the parties who are entitled to seek such damages, such as the injured party and that of the victim’s death Morally injured party (spouses and relatives) who accordingly prevent the latter from seeking moral compensation if the injury is not fatal ”(Abu Dhabi Court of Cassation – Cassation No. 113, 114-2016 – JY11 – 02/19/17, Federal Court – Cassation No. 134, 137, 138 of 20 JY [Civil]).

The Dubai Court of Cassation’s approach to restoring moral harm in non-fatal injuries

The Dubai Court of Cassation takes a different view than the Abu Dhabi courts and consistently maintains claims for moral damages from spouses or relatives of victims who have suffered physical injuries. Its decisions confirm that the purpose of Article 293 is to identify the parties entitled to seek moral damages for the death of the victim, namely spouses and relatives, to the exclusion of all others. While the legislation in question does not set standards for claims related to death or non-fatal injury, it aims to identify the qualified parties in the event of death according to the general rule that compensation includes actual damage. As a result, the Dubai Court of Cassation has ruled that a person has the right to seek compensation for suffering caused by harming their relative, whether fatal or otherwise.

The Dubai Court of Cassation also ruled that the law allows the recovery of moral harm in principle, and then restricts the right by referring to the legitimate parties and restricts what is an identification of what is an identification of in the event of the death of spouses and relatives of the family the persons who are entitled to the reimbursement of moral damages and not to the circumstances and reasons under which recovery can be sought.

Article 293 (3) of the UAE Civil Code and the Commentary by the Department of Justice show that compensation for moral damage to be paid to the injured party himself after death will not be transferred to the heirs unless the amount has already been paid under a private agreement determined or by a judgment that has become final. This is because this type of compensation is personal. Therefore, it cannot be passed on by inheritance unless it has assumed a financial character after being finally judged by consent or by a court order.

It is also found that physical harm to the victim and his family members necessarily and logically leads to moral harm. The judgment of damage in such cases is at the discretion of the court. (Dubai Court of Cassation – Cassation No. 307-2014 – 1/8/15).

While the Dubai Courts approach provides adequate protection for the victim, it should be noted that the language of Article 293 (2) is clear and restricts those who can recover to spouses and relatives. However, other persons who suffer immaterial loss as a result of the physical harm to the victim but are not a spouse or relative are not entitled to compensation. The Department of Justice Civil Code Commentary states that the degree of closeness of relatives entitled to compensation is at the discretion of the judge in the UAE.

Conclusion

It is clear that a judge in the UAE courts can order compensation for non-financial losses suffered by spouses and family members in the death of the victim. However, this differs across the Emirates as the Abu Dhabi courts only award damages for non-financial losses incurred as a direct result of fatal injuries, while the Dubai courts allow spouses and family members to seek damages for non-financial losses incurred fatal injuries occurred as a result of non-financial damage. A legislative amendment to the provisions of the UAE Civil Code to allow reimbursement of damages for serious bodily harm resulting in disability would lead to greater consistency in judicial decisions in the UAE.