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29 October 2019
In the event of an accident at work, injured employees are compensated by the National Institute for Insurance against Accidents at Work (INAIL).
However, INAIL does not compensate for 100% of the damages suffered. Rather, its settlement of damages is based on metrics that provide lower compensation than that usually awarded by the civil courts. Further, INAIL covers only certain types of damage (eg, moral damages are excluded from INAIL coverage).
Employees can bring an action before the civil courts against their employers or other liable third parties for compensation for so-called 'differential damage' (ie, any portion of damage not covered by INAIL).
According to Section 10 of Presidential Decree 1124 of 30 June 1965, employees can bring a civil action for compensation for differential damage against employers in the event of:
With Judgment 118/1986, the Constitutional Court established that employees can bring civil actions against employers even if the criminal action against them is dismissed. In such cases, the civil action must be brought within three years from the issue of the criminal decision.
Compensation paid by INAIL covers only the following damages (non-pecuniary and pecuniary, respectively):
In recent years, there have been conflicting decisions regarding the amount of differential damage that an employee can claim. In fact, the Supreme Court has maintained that:
Section 1(1126) of Law 145/2018 ruled that the second criteria above should no longer apply.
Scholars had strongly criticised Law 145/2018 on the basis that employees would not be duly protected in the event of an accident at work. For example:
In view of said criticism, the provisions introduced by Law 145/2018 were cancelled only six months after their introduction by Section 3sexies of Law 58/2019.
Given the cancellation of said provisions, the criteria that the courts should follow to quantify differential damages remain unclear. This is relevant for third-party liability insurers exposed to indemnification claims arising from INAIL's recourse actions.
Further elements of uncertainty stem from the fact that Law 58/2019 did not cancel the amendments made by Law 145/2018 to Section 11(3) of Presidential Decree 1124/1965.
According to Section 11(3), in the case of a recourse action by INAIL against an employer, the courts can – at their sole discretion – reduce the quantum of differential damages, taking into account:
In light of the above, the case-by-case analysis of individual damages awarded by INAIL continues to be important to ensure that requests for compensation for differential damages do not result in the duplication of sums already paid to the injured party. In fact, no duplication should be allowed in the settlement of damages, as evidenced by a number of recent rulings on compensation for personal injuries.
For further information on this topic please contact David Maria Marino or Karin Tayel at DLA Piper Studio Legale Tributario by telephone (+39 02 80 61 81) or email (email@example.com or firstname.lastname@example.org). The DLA Piper Studio Legale Tributario website can be accessed at www.dlapiper.com.
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