"Do not fear death, because—if there is death—you are not there, and—if you are there—there is no death"
Epicurus
In Brazilian civil law, there is no legal provision for so-called “damages resulting in death.” The harm that causes a person’s death is rarely discussed in legal scholarship and largely ignored by case law. However, this is not originally a Brazilian legal gap. For a long time, prominent European legal scholars have sought to explain the aphorism of the philosopher Epicurus. His warning is clear: if a person no longer exists, there can be no compensation for the deprivation of their life.
What is our current legal landscape? There is no compensation for “damages resulting in death” in the face of the unlawful taking of a life. The basis for this lies in the very absence of the person to whom the loss of the asset might be linked and from whose estate the compensation might be derived. The paradox is that it becomes economically much more advantageous to kill a person instantly rather than slowly; in fact, it is cheaper to kill quickly than to seriously injure them.
Given the legal impossibility of compensation for death, what is the alternative? There is no doubt regarding compensation for moral damage to the family members of the deceased. The Civil Code grants non-pecuniary damage in re ipsa to the spouse or any relative as a right inherent to family members—not acquired through inheritance—based on the harm to their existential sphere (sole paragraph, Art. 12, in conjunction with Art. 943, both of the Civil Code) caused by the death of a loved one. Despite the exhaustive list of beneficiaries, the courts have extended this right to include partners and even individuals with no familial ties, provided that, in the specific circumstances of the case, a genuine emotional bond with the deceased is proven.
On the other hand, the suffering inherent in grief can sometimes lead to lasting psychological distress. Although empirical studies show that the unexpected and sudden death of a loved one is the most common traumatic experience and a significant public health issue, for unknown reasons there is no civil liability for psychiatric disorders caused by the sudden loss of a close relative or partner. The courts emphasize that there is only one act of wrongdoing, and its consequences cannot vary according to the particular circumstances of each victim who suffers secondary or collateral harm.
Reinforcing this point, unlike under German law, in Brazil the family members of the deceased are not awarded compensation for so-called “nervous shock” (schockschaden), which stems from the courts’ broad interpretation of the concept of harm to health, as set forth in §823 of the BGB1. In other words, here we do not have a separate remedy for family members who witnessed the moment of death and effectively suffered psychological distress due to the event itself—a fact that goes beyond the grief caused by the death of a loved one, which is equally experienced by other relatives or close associates. Ultimately, due to concerns about indiscriminately opening the floodgates to multiple claims for consequential damages resulting from the immediate occurrence of a single event, the courts choose to limit the number of plaintiffs.
Is there, then, room for the establishment of independent compensation for death-related damages within the Brazilian legal system? The Constitution enshrines the principle of human dignity as the foundation for the protection of personality rights, while the right to life serves as a necessary prerequisite for any person to enjoy their privacy, honor, and image, and to have the freedom to exercise their property and existential choices. Therefore, although natural, the end of the life cycle may never be unlawfully cut short by third parties. Precisely for this reason, unlike in Brazil, Article 496, paragraph 2, of the Portuguese Civil Code expressly provides for death damages as an independent type of non-pecuniary damage.
In the Brazilian Civil Code, the provision that warrants careful interpretation is Article 948. First, by providing for the payment of expenses related to the victim’s medical treatment and funeral, the provision refers to compensation for pecuniary damages pertaining to the care of the deceased during the period between the injury and the burial. It covers all expenses incurred to keep the deceased alive and the costs associated with the final rites. The expression “family’s grief,” on the other hand, corresponds to the aforementioned moral damages suffered by relatives due to the death of a loved one. Furthermore, when the final part of the provision refers to “provision of support,” it addresses the financial impact of the harm suffered by the deceased on a person who was dependent on him or her and who will receive a monthly pension—as a form of loss of profits—the amount of which will be determined according to the financial means of the wrongdoer and the actual needs of the deceased’s dependents.
The paradox arises when we analyze the following provisions (Articles 949 and 950, CC). In both cases, the Civil Code awards compensation for damages caused to the physical integrity of the injured party who did not die as a result of the harmful event, including a pension awarded to that person in the event of incapacity to work. It seems incongruous that an injury affecting bodily integrity would give rise to compensation without any reference to compensation in extreme cases where the physical injury has led to death.
However, returning to the main provision of Article 948 of the Civil Code, the final part emphasizes: “without excluding other remedies.” This creates an opening for courts to recognize the compensability of death as an independent harm in cases where the tortious act claimed the victim’s life, based on the bodily injury that ceased with death—that is, the harm suffered prior to death.
It is important to remember that death—under any circumstances—is a legal fact that produces not only economic consequences —e.g., the opening of an estate and the payment of life insurance—but also entails “postmortem” existential implications, including the protection of the deceased’s memory by the living, that is, the protection of their image, name, and honor. Therefore—and this is fundamental—the harm cannot remain with the one who suffers it, since death is a fact that must trigger an independent claim for compensation, transferring the harm to the wrongdoer’s estate.
Damages for death constitute harm to one of the individual’s supreme rights—an absolute and inviolable right guaranteed primarily by the legal system—and therefore do not depend on the victim’s awareness of their own death. In other words, it makes no difference whether the unlawful act caused death instantly or whether the victim survived long enough to sense the inexorable approach of death.
Therefore, compensation for death-related damages is clearly distinguishable from compensation for the loss of a relationship intended for the spouse and relatives, as well as from “terminal or catastrophic” moral damages, that is, the harm consisting of the victim’s suffering as they clearly witness the end of their life, when there is evidence of a state of consciousness during the interval between the harmful event and death, with the consequent entitlement to a claim for damages, which is transferable to the heirs. Thus, damages for death can only be recognized within the compensatory function of civil liability as a type of abstract damage—that is, an exception to the principle of the irreparability of the initial harm and the exclusive reparability of consequential damages, since death results in the end of everything.
In cases where death occurs immediately following the harmful event, if we adhere to the perspective of civil liability as a remedy intended to restore the victim’s financial position, there will in fact be no compensation payable to the heirs, for the simple reason that there is no physically present individual with legal capacity—which is a conditio sine qua non for claiming any right to their “estate” (including the right to compensation for the deprivation of their existence). If the natural person is absent, there will not even be a legal entity capable of “establishing” itself and then transferring the right to compensation for a sudden loss of life.
Therefore, if we do not wish to reason in terms of rule and exception, it seems to us that compensation for death should not be justified by the compensatory function of civil liability, which would become incoherent, given the logical impossibility of a monetary award restoring the deceased victim to the state prior to the tort.
“Thinking outside the box,” I believe that the legislative gap and the very uncertainty surrounding the issue invite Brazilian legal doctrine to explore a different function of civil liability, discussed in “common law” jurisdictions and better known as “vindicatory damages.” Torts actionable per se have long played a fundamental role in protecting individuals’ basic rights, whether it be freedom in the face of wrongful imprisonment, the right to property protected against trespass, or the right to one’s own physical and mental integrity protected against assault. When protected rights are infringed upon without legal justification, such a violation is remedied through “substantial damages”—that is, substantial compensation rather than merely nominal damages.
In a rough translation, “vindicatory compensation” is not a monetary award intended to compensate for damages, deter torts, or punish egregious conduct. It is something different: it is compensation whose purpose is to assert rights that have been violated, regardless of their consequences. Just as in Roman law—where the concept of “vindicatio” arose to protect property rights regardless of any loss suffered by the owner—in death damages, the claim brought against the defendant serves as a substitute for the violation of the right. That is, by requiring that the perpetrator of the homicide not only pay an amount X for the damages inflicted on the deceased’s relatives (of a compensatory nature), but also be ordered to pay a sum Y for taking a life, the judgment departs from the principle of “restitutio in integro” and comes to express the moral element of the legal system.
As explained by the most prominent scholar in the field of vindicatory damages, Jason Varuhas: “For torts where the vindication of rights is the primary function, compensation is awarded due to the fact of the wrongful interference with the protected interest per se. This compensation makes up for a harm that is “normative” in nature, objectively assessed, and awarded to the plaintiff regardless of their suffering or any negative psychological impact, or even economic effects resulting from the tort”2.
Unlike compensation for material losses (factual loss), normative compensation encompasses a harm constructed abstractly within the legal realm, without any correlation to the effects felt in the real world. Thus, the award tangibly signals that the defendant’s conduct constituted a tort against the deceased and that, at the same time, the right to life is not merely something to be exercised by the “deceased,” but a fundamental right that is asserted abstractly against anyone in society and, concretely, against the offender who took that life through an unlawful act.
In short, this presents an excellent opportunity to broaden the scope of Brazilian civil liability by establishing the purpose of asserting rights as an autonomous principle, distinct from the traditional compensation for pecuniary and non-pecuniary damages. Rather than correcting the consequences of the tort, the tortious act itself is rectified through compensation, regardless of what would have happened had the tort not occurred. With regard to death damages, regardless of any moral or economic repercussions affecting third parties, the tort of shortening someone’s life constitutes a violation of the victim’s own psychophysical integrity by the party who, intentionally or not, failed to fulfill the general duty of care, with that party’s conduct being the proximate cause of the victim’s sudden death. In this context, compensation for death conveys the important message of reinforcing the moral duty to preserve human life.
We can draw a parallel between the vindicatory function of compensation and the symmetry between the end and the beginning of life. Analogous to death damages, in “wrongful conception” we also see grounds for vindicatory compensation. We need only consider the case of a doctor being ordered to pay damages for medical malpractice—that is, a violation of the leges artis due to negligent conduct during a sterilization procedure that resulted in an unwanted pregnancy and the birth of a child. The compensation will represent recognition of the violation of a right, irrespective of any negative consequences. After all, viewing a child’s life as a harm in itself or a source of harm is a flawed notion and contradicts the very inviolability of human dignity.
It is understandable and acceptable for parents to be compensated for the additional expenses they will incur in raising their child. Beyond the aforementioned financial loss, it is justifiable for parents to be compensated for the harm resulting from the deprivation of their autonomy—specifically, the lost opportunity to live their lives as they had desired and planned. Note: “loss of autonomy” is not a loss in the consequentialist sense. The birth of a child, despite a failed attempt at sterilization by one of the parents, is not, strictly speaking, an adverse consequence. Therefore, compensation for the deprivation of the parents’ self-determination serves as a substitute for the violation of their fundamental right to family planning. If a child is born due to a failure of a contraceptive method, bringing a wonderful impact on the family’s life, the parents’ right to compensation remains, since they have been deprived of their freedom of choice. If we compare the world as it is now with the world as it should be—in the absence of the wrongful act—I may not be worse off, but I can still assert my rights.
In the English Supreme Court’s ruling on the case of Rees v. Darlington Memorial Hospital, the plaintiff, a person with a disability, underwent sterilization because she feared additional difficulties in fulfilling her role as a mother. However, the procedure failed, and some time later she had a child. In the decision awarding damages, Lord Bingham explained that the purpose of the award was not intended to be compensatory, as it was not the result of a calculation; however, it was not merely a nominal award, much less a paltry sum. On the contrary, it must provide some measure of recognition for the wrongful act3.
If one day compensation for death damages is upheld in our courts—whether from a consequentialist perspective of compensating for harm or as an alternative form of compensable tort in response to a rights violation—the next step will necessarily be to assess the extent of such compensation. As the saying goes, when we solve one problem, a whole new set of problems always arises. The debate over the quantification of potential compensation is just as important as the recognition of death damages itself, given that if the national trend of awarding paltry sums persists, in practice any compensation will amount to no compensation at all.
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- Section 823—“Liability for Damages (1) A person who, intentionally or through negligence, unlawfully injures the life, body, health, liberty, property, or any other right of another person is liable to compensate the other party for the damages resulting therefrom.”
- VARUHAS, Jason. The Concept of 'Vindication' in the Law of Torts: Rights, Interests and Damages.
- House of Lords, SESSION 2002-03 [2003] UKHL 52. REES V DARLINGTON MEMORIAL HOSPITAL NHS TRUST: HL 16 OCT 2003.