ITA 
Published on Sole24Ore - Nt Lavoro - on 05/09/2023
The injured party who settled the disputes could ask the reimbursement for the damages which appeared after the settlement and were not predictable at thereto time. He could also if the settlement mentioned the future damages.
Thus, the Court of Cassation 25603 of 1 September 2023.
The case originates from an injury occurred on the workplace which had been object of a settlment with the employer. After some time from the settlement, the employee suited the employer claiming his health condition aggravation and asking for damages.
The Court of Appeal, confirming the Court of First Instance’s judgment, rejected the appeal noting that during the first-grade trial the employee didn’t prove the unpredictable aggravation of his health condition. The employee appealed on Cassation.
The Court of Cassation, notes how the injured party who has settled the dispute can always claim compensation for personal injuries manifested later and not foreseeable at the time of the settlement, when even the parties referred in the settlement to future damages.
For this purpose, the appellant bears the burden of specifically identifying the appropriate elements to allow for the revision of the liquidated damages due to aggravations subsequent and subsequent to the formation of the judgment, which must necessarily be attributable: «(a) to an objective impossibility of ascertaining, at the time of the first settlement, current factors able, within a reasonable prediction, to determine the future aggravation; (b) the impossibility, with reference to the first damages liquidation, of predict its effects; (c) To the lack of a subsequent event having concausal effectiveness of the aggravation.
In the present case, the appeal was dismissed because the worker had not provided evidence of the unforeseeability of the injury suffered that would have been aggravated. For this purpose, the Court recalls that pathological developments after the settlement agreement are not sufficient, requiring proof that it was also unpredictable at the time the agreement was signed.
The Supreme Court rejected the alleged violation of the criteria for the distribution of the burden of proof complained of by the plaintiff, noting that the unpredictability of future damages must be considered a constitutive requirement of the claim for compensation and as such must be attached and proven by the plaintiff in both of its components, aggravation and npredictability at the time of settlement.
For the Supreme Court, these are principles particularly consonant with the subject of personal injury covered by the settlement and its normal preclusive effect, otherwise exposed to all kinds of posthumous revision, with the burden of proof shifting to the defendant, who could know nothing about the aggravation suffered by the victim and its foreseeability or otherwise.