When a person sustains an injury that causes death after a certain interval of time, the right to compensation is not exhausted by the mere acknowledgment of the death. There exists a further prejudice, often underestimated in practice: that which the victim suffered between the moment of the fatal injury and the exitus. The Court of Cassation, by way of Order No. 5677/2026 of 4 March 2026, has clarified how this damage must be quantified, drawing a clear boundary with respect to the criteria traditionally applied to permanent biological damage.
What Is Terminal Biological Damage
Terminal biological damage — sometimes also referred to as danno da lucida agonia (conscious agony damage) — represents the prejudice to health and psychophysical integrity that the person perceives and suffers during the period of time between the fatal injury and death. This is not a hypothetical or abstract form of damage: it is a real, concrete suffering, which may last hours, days, or weeks, and which manifests with varying intensity depending on the patient's clinical circumstances.
Until now, in the assessment of this prejudice, it was not uncommon for courts of first and second instance to resort to the tables used for permanent biological damage, applying the relevant coefficients in a largely automatic manner. The Court of Cassation has now established that this approach is incorrect and has indicated the proper course to be followed.
The Court of Cassation's Decision: Equitable Assessment, Not Tabular Criteria
According to the Supreme Court, terminal biological damage cannot be measured using the tabular parameters designed for permanent damage, as the two situations are ontologically distinct. Permanent damage presupposes a future projection of the impairment over time; terminal damage, by contrast, is consumed within a defined temporal arc and is characterised by its progressive and irreversible nature.
Quantification must therefore necessarily be equitable, but not arbitrary. The judge is called upon to give specific weight to:
- The intensity of the suffering experienced by the victim during the period between the injury and death;
- The progressive deterioration of the health conditions;
- The awareness of the patient with respect to their own condition, where ascertainable;
- The actual duration of the time interval between the injury and the exitus.
In essence, the judge cannot confine themselves to performing a mechanical calculation, but must substantiate their assessment with clear criteria grounded in the specific circumstances of the individual case.
Catastrophic Moral Damage: A Separate Head of Claim
The Order also addresses a second matter of considerable practical importance: catastrophic moral damage (danno morale catastrofale). This refers to the inner suffering — terror, anguish
