The Mexican Supreme Court recently issued a final judgment in a civil proceeding in which a person claimed damages and compensation from an insurance company and the parents of a child, who had fatally run over the complainant’s brother with a car.

A lower court had previously ordered defendants to pay non-material and pecuniary damages. However, this decision was reversed by a Federal Circuit Court, which had ruled that it is not possible recover non-material damages under strict tort liability in Mexico.

The Circuit Court´s decision was reviewed and overturned by the Supreme Court, bringing with it two jurisprudences that strengthen the recent criteria that have been issued about damages.

a) Moral damages cannot be excluded from torts liability in view of the right to full reparation.

In this precedent, the Supreme Court determined that it is not possible to exclude non-material damages from strict liability, in accordance with the right to fair compensation, since it is not possible to condition in a generalized manner the type of damages that can be claimed, nor the types of damages to be included.

In its analysis, the Supreme Court emphasized that the human right to fair compensation or full reparation implies returning matters to the state in which they were prior to the damage or establishing compensation for the damage caused. It also seeks to annul all the consequences of the source of the damage.

Therefore, the Court concluded that is not the type of liability that conditions what can be claimed, but the damage caused, since this will determine the compensation, and understanding that the amount applied is what makes the effects of the violations committed disappear.

b) Moral damage, its link to strict liability and how to prove it.

Following with the analysis of non-material damages, the Supreme Court stated that it is not unrelated to strict liability and does not depend on the material damage, since this is determined by the non-pecuniary nature of the damage and has different consequences and a different way of proving it.

This determination considered elements of other decisions from the Supreme Court, ruling that the right to full reparation or fair compensation includes pecuniary and non-material damages compensation, since in tort liability, such as the case of the vehicular accident that originated the controversy, material and non-material damages may result in material and non-material damages.

The Court’s judgement illuminated the unique qualities and elements inherent in non-material damages – an injury to a subjective right. It is these features that must be taken into account when addressing this form of loss:

1. Not-material damage must be true and personal, so it can only be claimed by the affected.

2.  “Non-material” is a genus, with three species: damage to honor, aesthetic damage and damage to feelings.

3. It has patrimonial and extra patrimonial consequences, as well as existent and future damages.

4. It is independent of patrimonial damage and may result from contractual or non-contractual liability.

Finally, the Supreme Court ruled on the way this type of damage must be proven. Generally, it must be proven as it is a constitutive element of the action. However, this does not imply that non-material damage must necessarily be proven by direct evidence. It can be proven indirectly, which is the most common, due to the nature of the interests involved. This is because moral damage can be presumed if there is difficulty in proving such damage with non-pecuniary interests, so it will be presumed unless the defendant offers evidence to prove otherwise.