When it comes to determining the amount of compensation for emotional distress, the final decision rests with the court, emphasized Andriy Fomin, an attorney at Barristers LLP

The final lecture of the “Expert Examination in Pre-Trial Investigation” module at Legal High School, which took place on February 23 of this year, was devoted to the issue of calculating emotional distress. “Calculating non-pecuniary damages based on an expert’s opinion is a relevant and interesting issue, and judicial practice in this area is quite ambiguous,” emphasized the lecturer, Andriy Fomin, an attorney at Barristers Law Firm.

Domestic legislation does not provide a clear definition of the concept of “non-pecuniary damages,” the speaker noted, although Ukraine’s judicial system has long since formed its own view on this matter. “Moral damages should be understood as non-pecuniary losses resulting from moral or physical suffering or other negative consequences caused to a natural or legal person by the unlawful actions or inaction of others,” — Andriy Fomin quoted paragraph 3 of Resolution No. 4 of the Plenum of the Supreme Court of Ukraine “On Judicial Practice in Cases Concerning Compensation for Moral (Non-Property) Damage” dated March 31, 1995. Four aspects must be proven in this case: the existence of moral harm; the unlawfulness of the act committed by the person who caused it; the existence of a causal link between the harm and the unlawful act of the person who caused it; and the fault of the latter in causing the harm.

The monetary equivalent of compensation for moral harm is determined by the court depending on the nature of the offense, the severity of the physical and emotional suffering, the impairment of the victim’s abilities or the deprivation of the victim’s ability to exercise them, the degree of fault of the person who caused the non-pecuniary damage—if fault is a basis for compensation—as well as other circumstances of material significance. When determining the amount of compensation, the principles of reasonableness and fairness are taken into account, the lecturer emphasizes.

Andriy Fomin described three methods for determining the amount of non-pecuniary damages. Option one: determining the amount based on the sum claimed by the plaintiff in the complaint and rendering a final decision in accordance with the principles of reasonableness and fairness. Option two: the court determines the amount of compensation for non-pecuniary damages on its own. Option three: determining the amount of compensation based on an expert opinion (forensic psychological evaluation).

The lecturer also familiarized LHS attendees with various methods for determining the amount of compensation for emotional distress and presented interesting case studies from judicial practice regarding the determination of such compensation based on an expert’s opinion. “When it comes to determining the amount of compensation for emotional distress, the final decision today rests with the court,” the lecturer concluded.