05 Sep 2017

Damages for Personal Injury in Dubai (Part I)

Authored by: Rami Obeid and Mark O'Flynn

Damages for Personal Injury in Dubai (Part I)

In brief:

  • A 2-part article, with Part I looking at the way that personal injury claims are dealt with in Dubai, and dealing with recoverability of damages; and Part II giving an analysis of damages awards in the Emirate.
  • Discusses the legislative basis for claims for personal injury and also examines the heads of damage recoverable for personal injury in Dubai.

Introduction

The purpose of this article is to outline (a) the relevant legislative provisions relating to personal injury claims in Dubai; (b) the heads of damages which are recoverable for personal injury claims brought in Dubai; and (c) the amount of damages ordinarily recoverable in respect of those heads of damages.

(A) Relevant Legislative Provisions relating to Personal Injury Claims in Dubai

The following legislative provisions are those most relevant to personal injury claims in Dubai:

Article 282 of Federal Law No 5 of 1985 – Civil Code (the “Civil Code”) states:

Any harm done to another shall render the doer thereof, even though not a person of discretion, liable to make good the harm.”

The term “harm” is used as a general term, and connotes many actions such as an “unlawful act”, an “act contrary to the law”, a “harmful act” or an “act prohibited by law”.[1] Determining whether an action amounts to “harm” falls within the discretion of the judge.[2]  The obligation not to cause harm gives rise to the principle of the care to be taken by the prudent man[3] - this is the standard of care.

Article 282 of the Civil Code means that “there must be both the act (either positive or negative) and the harm, and then the causal relationship between them.[4] Each of these elements of harm must be proven by a claimant in order for the harmful act to be recognised as such by the Dubai Courts.

The burden of proof is on the Claimant to prove harm caused. However, the judge has wide discretion to determine whether a certain action amounts to “harm”.

Article 292 of the Civil Code states:

In all cases the indemnity shall be assessed according to the amount of harm suffered by the victim, together with loss of profit, provided that  is a natural result of the harmful act.

Any assessment of “harm” by the Dubai Courts will be on the basis of the amount of harm suffered by a Claimant. Article 292 of the Civil Code makes clear that a Claimant can seek damages for loss of profit, provided that the loss of profit arises from the harmful act.

In terms of the actual assessment of damages, Article 292 of the Civil Code does not provide any specific guidance for the Courts to consider in determining the amount (if any) of the damages to be awarded. This has been reaffirmed by the Court of Cassation: “since the law does not provide any criteria to assess the compensation, such assessment falls within the full discretion of the Court”.[5] It has also been established that “the Court is not required to follow a mathematical mechanism to assess the quantum of damages.[6]

Article 293 of the Civil Code states:

“(1) The right to indemnity for harm shall include moral harm, and an infringement of the liberty, dignity, honour, reputation, social standing or financial credit of another shall be regarded as being moral harm.

(2) It shall be permissible for an order to be made for indemnity for moral harm caused to a spouse, or relatives of the family, by reason of the death of the victim.

(3) The right to receive compensation for moral harm may not be transferred to a third party unless the amount of it has been fixed by agreement or by a final judicial order.[7]

Article 293 of the Civil Code could be relied on by a Claimant to advance the argument that he or she ought to be compensated not only for the injuries sustained by him or her and for the consequent loss of profit, but also in respect of the moral harm he or she has suffered, including any infringement on his or her dignity and honour.

Article 389 of the Civil Code provides:

If the amount of compensation is not fixed by a provision of law or of the contract, the judge shall assess it in an amount equivalent to the harm in fact suffered at the time of the occurrence thereof.

This means that the Court has effective unfettered discretion in terms of the amount to award a Claimant in respect of harm suffered.

(B) Recoverable Heads of Damages for Personal Injury Claims brought in Dubai

Despite the wide discretion of the Courts to assess and quantify damages, previous cases indicate that the Dubai Courts are willing to recognise and award damages in respect of certain categories of loss as follows:

Physical and Material Damages

Physical damages in the context of medical injuries are expressed under UAE law as “bodily injury”. Bodily injury is broadly defined to be anything whatsoever which affects the health of a human being.[8]

Material damage is the loss suffered by a claimant as a result of bodily injury.

Both physical and material damages can potentially be awarded by the Dubai Courts.

Although physical and material damages are closely linked, they are regarded as separate in respect of compensation. Once physical damage has been proven, it can be compensated for even if a Claimant has not sustained any material damage as a result of the physical damage.[9] The rationale behind this derives from the right of a person to their bodily integrity. This is recognised by many jurisdictions including the UAE, as being a fundamental and inalienable right which has to be protected per se.

Moral Damages

The Dubai Court of Cassation has consistently confirmed that moral damages can amount to any harm which affects the dignity, the sense of honour and the psychological pain of a Claimant[10], which could include loss of financial standing, although this particular aspect has not yet been reported in any case so far as we are aware.

Loss of Earnings

Article 292 of the Civil Code makes it clear that loss of profit or earnings shall be considered by the Courts in assessing damages, provided that the loss of earnings is a natural result of the harm suffered. Loss of earnings is, therefore, recognised as a head of damage under UAE law, and can potentially be compensated by the Dubai Courts.[11]

It would seem that the Dubai Courts do not take a forensic approach to loss of earnings (even when presented with the figures) in the same way that a UK or USA Court might, using current earnings and taking into account the loss of potential future earnings.

The assessment of the loss of potential future earnings falls within the full discretion of the UAE Court. The Dubai Courts may be slightly more generous and award compensation for loss of earnings when considering the position of a sole breadwinner in a family.

If one is to successfully claim loss of earnings, one must show that the loss of earnings is reasonably justified[12].

Loss of Opportunity

Loss of opportunity and loss of earnings are closely linked as heads of damage. While loss of earnings necessarily involves the loss of money, loss of opportunity may involve both the loss of money and the loss of moral opportunity. For instance, cases seen before the Dubai Courts sometimes involve the loss that elderly parents suffer when their child or children cannot look after them in old age if their child or children have died.[13]

In certain circumstances, loss of opportunity can be interlinked with loss of earnings. An example of this is where the loss of opportunity to use a residential property as a result of a contractor’s failure to build the property on time can result in a loss of opportunity[14] (to live in the property) and loss of earnings (by renting the property).

The Dubai Courts take the same approach toward the loss of opportunity as they do to the loss of earnings: the Court must be satisfied that the loss claimed is reasonably justified.

Potential Future Damages

Article 292 of the Civil Code does not provide for future damages. Potential future damages cannot be awarded unless it is proven that those expenses will definitely be incurred. In a 2009 decision, the Dubai Court of Cassation refused to compensate the expenses which may be incurred by a claimant in respect of continuous future treatment.[15]

However, if a Claimant can prove that he or she will certainly have to undergo future medical treatment in the future, this is a situation where the Court may award future damages.

It should be noted that there is no forensic method of calculation which the Dubai Courts are required to follow when assessing future damages. The Dubai Courts are only required to show that all heads of claim have been considered when assessing the quantum of damages; the Courts are not obliged to provide the basis of its calculation, or to break down the award into separate heads of claim.[16] Notwithstanding this, a claim for loss which occurs at a future point could constitute a new cause of action.

Conclusion

The most relevant legislative provisions regarding personal injury claims in Dubai are to be found in the UAE Civil Code.

Physical and material damages, moral damages, loss of earnings, loss of opportunity and potential future damages are all heads of damages recognised by the Dubai Courts.

In cases brought for personal injuries in the Dubai Courts, it is likely that the Court will appoint an expert. It is not unusual for the expert to comment both on fact and on law; it is also not uncommon for the Court to accept the opinion of the expert, although this is not binding on the Court.

 


[1] Whelan, UAE Civil Code and Ministry of Justice Commentary (2010), page 191.
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] See Case No 238/2009 and Case No 240/2009, Dubai Court of Cassation. See also Case No 268/2009 and 290/2009, Dubai Court of Cassation.
[6] See Case No 93/2009, Dubai Court of Cassation. See also Case No 284/2005, Dubai Court of Cassation.
[7] The term “financial credit” could also mean “financial status”
[8] Case No 48/1989, Dubai Court of Cassation. See also Case No 252/2000, Dubai Court of Cassation.
[9] Case No 186/2004, Dubai Court of Cassation.
[10] Case No 48/1989, Dubai Court of Cassation.
[11] Case No 396/2003, Dubai Court of Cassation.
[12] Case No.360/2009 dated 21/02/2010, Dubai Court of Cassation.
[13] Case No 360/2009, Dubai Court of Cassation.
[14] Case No 142/2009, Dubai Court of Cassation and Case No 146/2009.
[15] Case No 78/2009, Dubai Court of Cassation. See also Case No 77/2009 and 82/2009, Dubai Court of Cassation.
[16] See Case No 111/2011, Dubai Court of Cassation. See also Case No 98/1988, Dubai Court of Cassation.
 

This article, including any advice, commentary or recommendation herein, is provided on a complimentary basis without consideration of any specific objectives, circumstances or facts. It reflects the views of the writer which may, in some cases, differ from those of the firm, especially in the developing jurisdiction of the UAE.