In its recent Order No. 25603 of 1 September 2023 the Italian Court of Cassation established that a worker who has suffered an accident at work, which is the subject of a subsequent settlement with the employer, can always request compensation for damages which occurred subsequently and were not foreseeable at the time of the settlement itself, including future damages. Nevertheless, the injured party has the burden of demonstrating that the damages for which he or she requests compensation are attributable to subsequent deterioration in his or her health that was not foreseeable at the time of the settlement.
The facts of the case
On 14 June 2005 a worker was the victim of an accident at work while using a forklift. In 2010, the worker brought a first set of proceedings before the Court of Venice, against the employer and the company that owned the forklift, seeking an order for compensation for the damages suffered following the accident.
In October 2012, while the proceedings were pending, the parties reached an out-of-court settlement which included the worker’s waiver of the legal claims and proceedings.
Subsequently, in 2014, the worker brought further proceedings against the employer and the company that owned the forklift, asking the Court of Venice to:
- establish the unforeseeable deterioration of his health conditions which occurred during 2013 following the 2005 accident which was the subject of the settlement;
- order the defendant counterparties to pay compensation for all pecuniary and non-pecuniary damages suffered by him.
The Court of Venice rejected the application because of the worker’s failure to provide proof of the deterioration of his health resulting from the accident and, above all, that it was not foreseeable at the date of the settlement.
The worker therefore appealed to the Court of Appeal of Venice which confirmed the judgment of the court of first instance. In particular, the Court of Appeal affirmed the principle according to which the injured party, even after having settled the dispute with the injurer, can always request compensation for damages that occurred and were not reasonably foreseeable at the time of the settlement, even if they refer to future damages.
At the same time, however, the Venice Court of Appeal justified the rejection of the worker’s claim due to failure to provide proof of the alleged unforeseeable deterioration of the worker’s post-settlement health conditions who, on the contrary, had only shown a limited change in his condition, without proving anything about the extent and unforeseeable nature of the deterioration of his health compared to the time of the settlement.
The judgment of the Italian Court of Cassation
The matter was then referred to the Italian Court of Cassation who confirmed the rulings of the Court of Appeal and the Court of first instance.
The Court of Cassation judges in fact rejected the appeal because the worker did not provide proof of the unforeseeable nature of the damage due to subsequent deterioration which occurred after the settlement, since – the Court stated – the pathological development subsequent to the settlement itself was insufficient, because it was necessary to prove that it was also unforeseeable at the time the agreement was signed.
The Court of Cassation also rejected the alleged breach of the criteria for allocating the burden of proof complained of by the appellant, noting that the unforeseeable nature of future damages must be considered a constitutive requirement of the request for compensation and as such evidence of both components must be attached and proven by the party of those taking legal action: deterioration of the condition and the fact that it was unforeseeable at the time of settlement.
In fact, to argue otherwise would expose the preclusive effect of the personal injury settlement to all types of posthumous revision, with the burden of proof shifting to the defendant who would know nothing about the victim’s deteriorating health and its foreseeability or otherwise.
The Court of Cassation judges then confirmed the legal principle – already expressed in the second instance proceedings by the Venice Court of Appeal – according to which the injured party who has settled the dispute can still request compensation for damages (to his or her person), which occurred subsequently and were unforeseeable at the time of the settlement, even if the parties made reference in the settlement to future damages.
To this end, the Court specified, however, that the applicant has the burden of specifically identifying “the evidence appropriate (…) to allow the revision of the compensation for damages due to subsequent deterioration of the health condition which occurred after the judgment” which must necessarily be attributable to:
- an objective impossibility of ascertaining, at the time of the first settlement, factors actually capable, within the context of reasonably foreseeable, of causing the future deterioration;
- the impossibility, at the time of the first settlement, of predicting the effects of said deterioration;
- the non-existence of a subsequent event “which had the effect of contributing to the deterioration”.
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