Paloma da Silva Aguiar
Lawyer at Marcos Martins Advogados
According to the Dicio Dictionary, damage, which comes from the Latin “damnu ‘, is: ’The action or effect of damaging, causing harm. Decrease or complete loss of the good qualities of something or someone. The act of spoiling something that belongs to someone else.”[1]
Damage can encompass various types, such as: culpable damage, intentional damage, emergent damage, material damage, contractual damage, moral damage – which is the reference of this work – among others.
Moral damage is observed when an individual is affected, whether by their privacy, their intimacy, honor, image, name or their own physical matter.
Moral damage is observed by the injury of an exclusively moral, non-economic good, since if this were the case, material damage itself would be observed.
The Federal Constitution demonstrates the importance of this institute, since it protects the individual who suffers an injury to their property, duly protected by law.
Items “V” and “X”, both provided for in Article 5 of the Federal Constitution – CF, clarify as follows:
V – the right of reply, proportional to the offense, is guaranteed, in addition to compensation for material, moral or image damage;
X – people’s privacy, private life, honor and image are inviolable, ensuring the right to compensation for material or moral damage resulting from their violation;
It is understood, therefore, that if this damage is caused, the person who caused it must, in turn, compensate the victim.
Compensation is nothing more than the act of compensating the victim, in order to annul the damage caused or repair it, since the damage can be reconstituted in whole or in part.
It is worth noting that, in some situations, the obligation to do something, in itself, would be enough, since it would reconstitute the situation prior to the damage, making it right again. However, on other occasions, the situation prior to the actual damage cannot be restored, thus creating an obligation on the part of the cause to indemnify, i.e. repair the damage caused to others by means of payment.
A classic example of each case is highlighted for a better understanding:
- Obligation to do: Paulo, the owner of a plot of land located in the city of São Roque/SP, suffered damage when his neighbor Arthur built on his property by encroaching on other people’s land. In this case, the obligation to do so is clear, since Arthur can rebuild his property without the aforementioned invasion, only using his own footage and not that of others.
- Payment of compensation for moral damage: Paulo, an employee of Constrói São Paulo, had an accident while using a wood-cutting machine. As a result of this accident, he lost the first phalanx of his right index finger. In this case, without the option of restoring the situation prior to the damage, the responsible party, if civil liability is observed, must compensate the victim by initially paying compensation for moral damage. And, just to top it off, in this case, compensation could also be paid for material damage, in the event that the worker incurred expenses as a result of the accident, as well as for aesthetic damage, precisely because of the loss caused.
Under Civil Liability, provided for in the Civil Code (CC), anyone who commits an unlawful act against another person has the duty to compensate them. “In verbis”:
Art. 186 – Whoever, through voluntary action or omission, negligence or recklessness, violates a right and causes damage to another, even if exclusively moral, commits an unlawful act.
Art. 927 – Anyone who, as a result of an unlawful act (arts. 186 and 187), causes damage to another, is obliged to make reparation.
The idea of compensation for moral damage is to compensate the victim for the damage suffered. The purest reality is that, at the moment the offender acquires the obligation to repair the damage caused to others, he should be punished and set an example, precisely so that the same illegal act is not committed again, either against the same individual or against others.
Until before the Labor Reform, the most common practice was for the victim to claim in court the minimum amount he or she felt was owed to remedy the damage caused to him or her. The court, in turn, would analyze the minimum amount indicated and then, if payment of the damage was indeed due, arbitrate a fair amount, according to its size.
It is true that the court of first instance’s opinion is not the last, since in the event of dissatisfaction, the victim can even complain to the other courts in order to have the aforementioned compensation arbitrated or increased.
According to the Dicio Dictionary:
Action or effect of indemnifying, offering or receiving compensation or reparation for a loss or damage suffered.[2]
With the arrival of the New Labor Legislation (Labor Reform – Law No. 13,467 of July 13, 2017), a new calculation for the payment of compensation for moral damage was to come.
The table below expresses exactly the reality of the forecasts:
In view of the tables highlighted above, it is worth noting that not only did the National Association of Labor Magistrates (ANAMATRA) file an action with the Federal Supreme Court (STF) against the above-mentioned limitation on the amount of compensation for moral damage, but also several judges, precisely because they disagreed with the limitation passed down by Provisional Measure No. 808, which was intended to apply a more beneficial amount to those individuals who suffer damage and have lower incomes.
In the end, and after several debates regarding the proposal put forward by Provisional Measure No. 808, it was determined that the court, when analyzing each case, has numerous topics to observe, according to the items[3] provided for in Article 223-G of the Labor Reform, Law No. 13,467, of July 13, 2017, before determining the amount owed to the victim as compensation for moral damages.
The first paragraph of the same article, 223-G of Labor Reform Law No. 13,467 of July 13, 2017, shows that Provisional Measure No. 808 was not accepted, and the provisions of the Labor Reform itself are maintained, in which the combined parameter will observe the last salary of the injured worker. “In verbis” :
§ Paragraph 1If the claim is upheld, the court shall set the compensation to be paid, to each of the offended parties, in one of the following parameters, the accumulation being prohibited:
I – offense of a light nature, up to three times the offended party’s last contractual salary;
II – medium offense, up to five times the offender’s last contractual salary;
III – offense of a serious nature, up to twenty times the offender’s last contractual salary;
IV – an offense of a very serious nature, up to fifty times the offender’s last contractual salary.
With just one caveat, if the parties are identical, the court may even double the amount owed as compensation for moral damages.
[1] DAMAGE. Dicio online dictionary, April 25, 2018. Available at: < https://www.dicio.com.br/dano/>. Accessed on: 25 Apr. 2018.
[2] INDEMNIFICATION. dicio online dictionary, 25 Apr. 2018. Available at: <https://www.dicio.com.br/indenizacao/>. Accessed on: 25 Apr. 2018.
[3] Art. 223-G. When assessing the request, the court shall consider: I – the nature of the legal asset being protected; II – the intensity of the suffering or humiliation; III – the possibility of overcoming it physically or psychologically; IV – the personal and social repercussions of the action or omission; V – the extent and duration of the effects of the offense; VI – the conditions in which the offense or moral damage occurred; VII – the degree of intent or guilt; VIII – the occurrence of spontaneous retraction; IX – the effective effort to minimize the offense; X – forgiveness, tacit or express; XI – the social and economic situation of the parties involved; XII – the degree of publicity of the offense.
