In an article published on the Italian law review Responsabilità civile e previdenza, 2020, no. 3, titled «Il calcolo del “danno differenziale” da invalidità preesistente: questione risolta dalla “doppia valutazione” di “San Martino 2019”?», Marco Bona commented the meaningful Italian Supreme Court’s judgment no. 28986 dated 11 November 2019, that addresses the complex issue of the compensation for the “differential damage” which occours whenever the injured party was affected by a pre-existing bodily or mental invalidity already affecting his/her life. In particular, after confirming its adherence to the traditional “eggshell rule”, this precedent by the Cassazione develops a peculiar model for the monetary assessment of the non-pecuniary “differential damage” based on the ascertainment and quantification of the “overall damage” (this includes all the actual non-pecuniary consequences, of any type and from any cause provoked, impacting in concrete on the victim,) from which the sum attributed to the likely pre-existing invalidity has to be deducted in order to obtain the final award. The model outlined by the Court of Cassation is grounded and acceptable as to its basic scheme. However, as noted by Marco Bona, it needs to be further refined first of all in relation to the necessity of taking into consideration, by possibly increasing the standard compensation, the prejudices, peculiar to each single victim, consisting of the pain and suffering, the negative alterations of the dynamic-relational activities, as well as the moral damages; this is since all such prejudices generally fall outside the award arising, under Italian law, from the mere combination between, on one hand, the percentage points indicated by medical experts for the permanent invalidity and, on the other hand, the basic monetary values provided by the relevant tables enacted by the law or by the judiciary.
