This work is an English translation of an article I wrote for the legal journal “Efarmoges Astikou

Dikaiou kai Politikis Dikonomias” (Greek title) which will be published in Issue 2/2019.
 THE COMPENSATION FOR NON-MONETARY DAMAGES UNDER THE
PROPORTIONALITY PRINCIPLE: REMARKS ON THE CURRENT JUDICIAL PRACTICE

In its recent judgment No 270/2018 (the Judgment)1, the Supreme Civil Court (SCC) reviewed whether
the compensation awarded by the Athens Court of Appeals for non-monetary damages suffered in a
motor car accident was in conformity with the proportionality principle. Although the SCC has issued
many judgments of this type during the last years, the Judgment introduces some very interesting
theoretical issues that, in effect, question the effectiveness of the principle of proportionality in respect
with the legal protection it offers to the victims that suffer non-monetary damages by actions in tort.

To begin with, the principal facts of the Judgment can be summarized as follows: the applicant was hit
by a motorbike while crossing the street. The applicant suffered multiple injuries in her body and face
which affected her vision and taste. The first instance court found that the negligence of the driver
attributed to the accident by 60% while the negligence of the victim by 40%. The Court of Appeals
upheld the decision and ordered the defendant to pay the aggregate amount of €70.000 for the stress and
body damages suffered by the victim. The Judgement found that the damages awarded were in line with
the proportionality principle and upheld the judgment of the Court of Appeals.

Until 2015, the SCC was unwilling to apply the principle of proportionality when reviewing lower
courts’ judgments awarding non-monetary damages. In 2015, the SCC altered its settled case law and
started applying the principle of proportionality to its review, although, in a very limited extent. More
specifically, the SCC took the view that its review under the proportionality criteria should refer
exclusively to whether the compensation awarded by the lower courts is considered "reasonable" under
"the past precedents" and the "common rules of logic".

Many civil law scholars have taken the view that the SCC was right in limiting its review only with
regard to the conformity of the lower courts' judgments with a general standard of reasonability and the
common sense. The legal arguments they exposed related to the fact that the damages in a non-monetary
good cannot be calculated in a strictly mathematical manner2. The courts, so the argument goes, are
entitled to use their discretion in estimating, on an ad hoc basis, the compensation that would be fair and
reasonable for the victim.3 On the other hand, those scholars opposing to the application of the
proportionality test focused on the incoherence between the amounts of compensation that had, from

1
Available in NOMOS database
2
V. Rigas, The reasonable compensation in defamation cases, Diki, 2009, p.805
3
M. Stathopoulos, The award of non-monetary damages under the principle of proportionality, Nomiko
Vima 58(40), p. 833

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time to time, been found by the SCC to be in line with the principle of proportionality. They have
promoted the idea, originating from the theory of the economic analysis of law, that the SCC should
start recording and categorizing every single judgment that awards non-monetary damages in order, in
the future, to be in position to apply stricter standards of review on the basis of past precedents of each
specific category of damage.4 The low degree of acceptability for this idea lies, mainly, in the fact that
it aims at providing a motive for the avoidance of torts, thus, it contravenes the restorative nature of the
compensation for non-monetary damages. Under the Greek civil law, such compensation aims
exclusively at the restoration of the damages suffered by the victim.

Notwithstanding the solid and undisputed sovereignty of the proportionality principle in the practice
followed by the SCC, it can be argued that the application of that principle to the review of the lower
courts’ judgments awarding non-monetary damages performs poorly. The Judgment provides some
clear evidence in this direction.

To begin with, the Judgement has taken into account certain facts of the case in order to estimate whether
the Court of Appeals abided by the principle of proportionality. These facts, which have been also taken
into consideration by the SCC in past judgements, referred to the gravity of the injury, the degree of
fault of both parties and the social and financial situation of both parties. The question that arises is
whether the SCC was permitted by the restorative nature of the compensation for non-monetary damages
to take each of these facts into account for its Judgement. It has been already noted that, under the civil
law theory, the compensation for non-monetary damages aims at the restoration of the mental and body
pain suffered by the victim. This approach is followed rigorously by the Courts including, of the course,
the SCC. Given, therefore, that such approach excludes the possibility that the damages awarded by the
Courts penalize the tortfeasor for the damage caused to the applicant, it is unreasonable that the SCC
has taken into consideration the degree of fault of the parties which, in essence, means that the negligent
tortfeasor would have been ordered to pay more in case he would have been found to have acted
fraudulently. What is more, the SCC erred in correlating the amount of compensation with the social
and financial situation of the parties. In acting in this way, the SCC has exercised duties of distributive
justice which constitutionally belong to the legislature.

Second, the Judgement reviewed the reasoning of the Court of Appeals by reference to "past precedents".
It has been already noted that this criterion constitutes a common ground on which the SCC either rejects
or upholds the judgments of lower courts. In this particular case, the term of "past precedents" should

4
V. Karapanou, Assessment of pain and suffering damages for personal injuries. The European Doctorate in
Law and Economics programme. Erasmus University Rotterdam. Available on
http://hdl.handle.net/1765/38642

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be defined with particular reference to motor car accidents. The reason for this is that this type of
accidents is regulated in Greece by special legislation. This fact is of essence when it comes to the
calculation of the compensation because, given that the legislature has set out specific rules for the
evaluation of this category of damages, it is expected that the courts apply special standards of review
for the cases that fall in the scope of these rules. In essence, the question here is whether the SCC has
taken into account for its Judgment similar "past precedents" awarding non-monetary damages in motor
car accident cases. The response to the question comes from another judgment issued, just one year ago,
by the same division of the SCC which has issued the Judgement. In its previous judgment5, the SCC
has found that the Court of Appeals has erred in awarding €40.000 to the victim of a motor car accident.
The surprising element is that in this prior judgment, the award of €40.000 has been found excessive
despite the fact that the victim has not acted in negligence and has also suffered a left hand paralysis. In
practice then, the SCC has not only disregarded the standards of review that has set to itself in the
Judgement but has also allowed a lower court to award higher compensation for minor body injuries in
favor of a more negligent applicant.

Last but not least, the Judgement invoked the “common rules of logic” as an additional quality threshold
applied in its reasoning. In the Greek legal theory, the common rules of logic is a generic term for every
common sense empirical evidence that the Courts may use in their reasoning without the need for such
evidence to be brought to the Courts’ attention by one of the disputed parties. The problem with the
judicial use of this term is that, normally, the Courts does not specify in its reasoning the exact content
they give to it. This is also the case with the Judgement in which no reference is made as to the empirical
evidences used by the SCC during its review of the judgement of the Courts of Appeals. Under these
circumstances, the question that arises is what exactly should have been the minimum empirical content
that the SCC should have found binding under the proportionality test. Given that the common sense
would never demand the Courts to use complex rules in evaluating the damage suffered in a non-
monetary good, we could assume, in an intuitive rather than a philosophical manner, that the common
sense would demand the Courts to adjust the amount of awarded damages to the unique value of each
good. This idea does not presuppose that the Courts are obliged to find or construct rules indicating a
ranking order between these goods by reference to their internal value. On the contrary, the intuition
here is much simpler and relates to the common understanding that there is one good of supreme value
and that the compensation awarded for the loss of this good should exceed the compensation awarded
for any of the rest. This good is life and, therefore, the question can be now reinstated to emphasize on
whether the SCC has reviewed the damages awarded by the Court of Appeals after taken into
consideration the minimum compensation that could have been awarded for the death of a victim of a
motor car accident. This is not a complex question, in fact, it has already been answered by the same

5
SCC, Fourth Division, Judgement No 622/2017, available in NOMOS Database

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division of the SCC which issued the Judgement. In a previous judgement delivered a year ago, 6 the
SCC uphold a judgment issued by the Court of Appeals by virtue of which the defendant in a deadly
motor car accident case was ordered to pay €47.000 for the death of the victim. In that particular case,
the Court of Appeals has found that the negligence of the defendant attributed to the accident by 40%.
In the scenario were the negligence of that defendant would have been evidenced to have attributed to
the accident by 60%, the awarded damages would have been proportionally increased to €70.500, in
other words, would have been equal to the amount of compensation (€70.000) that was found by the
Judgment to be in line with the principle of proportionality.

To conclude, the Judgment offers some clear evidence of the inefficiencies of the principle of
proportionality during the SCC’s review of lower courts’ judgementsry damages. If the SCC stays
passive against the need to amend its current methodological approach, the arguments opposing to the
application of the proportionality test will soon be more convincing.

6
SCC, Fourth Division, Judgement No 747/2017, available in NOMOS Database