The Concept of Compensation for Civil Wrongs in the UAE
Tort is a civil wrong or wrongful act, whether intentional or accidental, from which injury occurs to another. Tort law and the wrongs it encompasses are a common law construct and fall squarely within the domain of civil disputes pertaining to injuries caused by virtue of violation of one’s personal rights. Redressal can be sought and received in two forms – (i) Judicial modes of redressal; (ii) Extra-Judicial modes of redressal. While judicial remedies encompass damages, injunctions and specific restitution, the article shall deal exclusively with the pecuniary mode of redressal, that is, damages.
The aim of compensation in tort law is Restitutio In Integrum – To put the aggrieved person back into the same position that the said person would’ve been in, had the harm or injury not occurred. Damages in Tort law are always measured as a difference between the ‘original position’ and the ‘injured position’ of the aggrieved. Further, while estimating damages, the courts must always bear in mind, the aim of tort law as distinguished from that of criminal law. In the UAE, the general principles of tortious liability is mainly accommodated in Federal Law No. (05) of 1985 on the issuance of the Civil Transactions Law (the “Civil Code”), under Articles 124, and 282 through 298. Article 299 of the Civil Code pertains to injuries to persons arising from personal act and enables a claim for compensation for the same.
Types of Compensation
1. COMPENSATORY AND PUNITIVE DAMAGES
As has been represented above, there are two main forms of compensation in Tort law – Compensatory damages and Punitive Damages. Compensatory damages are plaintiff-focussed, while punitive damages are defendant-focussed. As enshrined in Black’s Law Dictionary (1983) and as suggested by the nomenclature of the term, Compensatory damages aim to compensate the plaintiff (injured person) for the wrong done to him or injury so sustained, and nothing in excess of this. They are the main form of damages that dominate the courts when it comes to remedies in civil suits. Article 288 of the Civil Code allows for damages to be awarded to the aggrieved in the event that an individual exceeds the proportional threshold of self-defence exercised in protection of their person, honor or property or that of another’s. However, in the event that the aggrieved himself has contributed to his injury, the courts shall mitigate the damages under Article 290 of the Civil Code to the extent of such contribution. On the other hand, Punitive damages refer to compensation in excess of actual damages, a form of punishment to the wrongdoer and excess enhancement to the injured.
2. GENERAL AND SPECIAL DAMAGES
Having discussed punitive damages in brief, the author shall now proceed to analyse the binary of compensatory damages, that is, general and special damages. General damages are the damages that are awarded when the judge cannot find any parameter or measure to assess the damages, except for the prudence of a third reasonable man, for example – pain and suffering. Article 293(1) of the Civil Code explicitly allows for moral damages awarded on account of injury to one’s freedom honor, dignity, class and reputation. Article 293(2) further allows for damages to the relatives and kin of the injured or deceased on account of their death. Applying the legal maxim of Injuria Sine Damnum, whenever the defendant violates an absolute legal right of the plaintiff, general damages to at least a nominal amount would be implied regardless of any actual pecuniary or physical loss in terms of health, comfort etc. An absolute right refers to a right that is ‘Actionable per se’- A violation of such a right is enough to constitute a wrong and no further proof of any ‘special’ damage is required.
On the other hand, in the case of Special damages, the Court does not presume any loss and the actual and special damage must be proved. Here, ‘Special Damage’ refers to any substantial damage capable of pecuniary assessment, which flows directly and in the normal course of things from the act of the defendant for which he is responsible and which must be proved in the case of all torts not actionable per se. This could include extra costs, repair or replacement of damaged property, lost earnings (both historically and in the future), loss of irreplaceable items, additional domestic costs etc. It is awarded in cases where damages are the gist of the case and where such damages can be calculated with accuracy, that is, they are not unliquidated in nature like General damages.
Period of Limitation
The period within which any claim in respect of any tortious act shall have to be lodged (period of limitation) before the competent courts in the UAE is set out in Article 298 of the Civil Code.
Ordinarily the period of limitation, is three years from the day on which the aggrieved/victim became aware of the occurrence of the harm and of the identity of the person responsible for it.
However, if such claim arises out of a crime and the criminal proceedings are still current after the expiry of the period of limitation referred to above, the claim for compensation shall not be barred.
In any event no claim for compensation shall be heard upon the expiration of fifteen years from the day on which the harmful act took place
ADV. Arshadh Malim
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