If we take the position that a compensation of 15,000 euros is fair for defaming another person, i.e. making false claims about the person, then what should be the compensation for causing serious health damage or even death?

It is important to consider also the purpose of the compensation. The law clearly states that the purpose of compensation is to place the injured person in a situation that is as close as possible to the situation in which he would have been if the circumstance underlying the obligation to compensate had not occurred. In the case of property damage, this principle is easily applicable. In other words, if someone breaks my computer, they need to pay an amount corresponding to the price of a new computer as compensation. In the case of non-pecuniary damage, this principle is less applicable, since essentially the court should assess what amount would compensate the person who suffered non-pecuniary damage for his or her survival. And non-property damage can be very different. For example, I feel annoyed when someone has said something bad about me. It can also mean actual pain, limitations in later life or, in the worst case, death.

The biggest problem of compensation for non-property damage in Estonian law is that there is no list of possible survivals of people, i.e. non-property damage, where the amount of fair compensation would be given after each survival. It is a question that the legislator has left to be completely shaped by case law, which in turn leads to very different court decisions, as each judge sees fair compensation from own point of view.

However, the above will change significantly in the summer of 2024, when the Patient Insurance Act (or the long-named Health Service Provider Mandatory Liability Insurance Act) will enter into force. In this act, we find a list of non-pecuniary damage which also includes the amounts of fair compensation to be paid for causing non-pecuniary damage. According to the act, the maximum amount of compensation payable for non-property damage is 30,000 euros, and the payment is justified only in case of particularly severe health damage or bodily injury or death. And if the consequence is, for example, severe health damage, the maximum amount of compensation is 5,000 euros.

One problem is certainly the maximum amount of compensation provided by the Patient Insurance Act, which is many times lower than the extrajudicial compensation that hospitals pay under settlement agreements. For example, I can mention from my practice about 5 years old agreement where the hospital paid a compensation of nearly 200,000 euros to the patient for severe health damage. At the same time, even in this case, the proportions of damages are out of place. If it is also taken as a basis that the fair compensation for non-pecuniary damage in the event of serious injury or death is 200,000 euros, it is still difficult to argue that insulting someone is worth 15,000 euros in compensation. But a situation where compensation of 5,000 euros is paid for severe health damage, 15,000 euros for defamation and 30,000 euros for causing death is completely unacceptable. Such compensations are certainly not proportionate and fair considering the nature and severity of the damage.

Keijo Lindeberg
Attorney-at-law of Law Firm LINDEBERG

Keijo Lindeberg is a lecturer in medical law at Tallinn University of Technology. This article reflects the personal views of the author.