Publications / Articles

Emotional distress: parameters for fixing the compensation

Emotional distress: parameters for fixing the compensation

Written by Laiz de Moraes Parra . 21 . 01 . 2019 Published in Articles

Establishing the value for emotional distress claims has always been a hardship faced by the Courts, provoking a lot of discussions in the legal framework.

Debating about reasonability and proportionality may seem easy in theory but the application of those principles to real legal cases can be a deadlock that needs to be weighted by the members of the legal profession. After all, how to put value in honor, in privacy, in the inestimable?

Although it has a subjective character, the basic rule for setting the compensation is that while the amount cannot be so high to cause unjustified enrichment to the Plaintiff, it cannot be so tiny to not discourage the offender’s conduct.

At the trial of the appeal to the Superior Court of Justice nº 1.152.541-RS, the Superior Court Justice Paulo de Tarso Sanseverino (judge-rapporteur) considered that: “the best standard for quantifying compensation for nonpecuniary losses in general, in the current stage of Brazilian law, is by arbitration by the judge, in an equitable manner, based on the postulate of reasonability”.

Indeed, the concept of equitable arbitration is linked to the sole paragraph of the article 953 of the Brazilian Civil Code, which provides that: “if the offended cannot prove a pecuniary damage, it shall be up to the judge to determine the amount of the compensation equitably in accordance with the circumstances of the case”.

Therefore the circumstances of the case (such as the severity of the act, the intensity of the agent’s intentionality or guilt, the personal conditions of the victim and also their possible contribution to the damaging event) must be analyzed at the moment when the indemnification is fixed, since each situation will have peculiarities.

Lastly, it must be considered that nowadays the higher courts only allow the review of values fixed by the lower ones when it shows up as insignificant or exaggerated, not corresponding to the circumstances of the case.

The assistance of legal professionals is essential in causes that discuss parameters for fixing the value of emotional distress compensation, to assure that the correct approach and strategies to mitigate loss are being observed and also assure that the defense of interests of the injured person is being effective.