Presumed damage: when there is no need to prove the damage

In Brazilian law, as a rule, the offended party who wishes to file a claim for compensation for damages, whether moral or material, is obliged to prove that this damage has in fact occurred. That is, in most cases, the offended person needs to prove that this unlawful act brought him some harm, and that, for this reason, he has the right to compensation to repair it.

This obligation occurs, mainly, so that the judge can analyze whether this compensation is even due, and, subsequently, so that he can arbitrate and calculate this compensation.

Thus, the rule is clear: Whoever claims compensation for a damage needs to prove it.

However, there are some cases and situations in which damage can be presumed, especially moral damage. The presumed damage, too, is known as “in re ipsa,” a Latin expression commonly used in legal redactions.

In these specific cases, the offended party (the author of the action), despite having suffered damage resulting from an illegal act committed by a third party, does not need to prove it in court, it is enough to prove the practice of the illegal act by the other party that has caused the damage of the offended party (be it personality, image, honor or privacy), and, in this way, the damage will be configured.

As this is a topic that always fosters new discussions, the Superior Court of Justice (STJ), is constantly analyzing and updating a list, a mere exemplary list, of cases in which it understands in which the damage will be presumed.

This constant study of the STJ is of paramount importance for the whole society, since the vast majority of cases listed by the superior Court as “hypotheses of presumed harm” are very common in the lives of Brazilians.

Recently, in October 2022, the STJ released a series of hypotheses in which the STJ recognized the application of the presumed damage, also explaining why this decision and how it can affect the lives of Brazilians. We will talk about some of them below:

Moral damage in the hypothesis of a foreign body in the food, without the need for it to have been ingested: the second section unified the jurisprudence of the private law classes of the STJ and considered the actual ingestion of the food contaminated by a foreign body – or the foreign body itself – irrelevant for the characterization of moral damage, since the purchase of the unhealthy product is potentially harmful to the consumer.

For the minister rapporteur Nancy Andrighi, “the distinction between the hypotheses of ingestion or not of unhealthy food by the consumer, as well as the swallowing of the foreign body itself, in addition to the hypothesis of effective impairment of their health, is of undeniable relevance at the time of quantification of compensation, having no effects, however, with regard to the characterization, a priori, of moral damage”.

Damage by the refusal of the health plan to authorize emergency medical treatment: the private law classes of the STJ have the understanding that the improper refusal of emergency medical treatment, by the health plan operator, causes compensation for moral damages, as it aggravates the situation of psychological distress and anguish of the beneficiary, being characterized the moral damage “in re ipsa”.

Damage by improper use of trademark: the STJ’s jurisprudence also understands that compensation is due for property damage (to be determined in settlement of judgment) and for off-balance sheet damages in the event that trademark infringement is perceived, regardless of concrete proof of material damage and moral upheaval resulting from illicit use.

With this understanding, the fourth class of the STJ maintained at R$ 15 thousand the compensation for moral damages to which the company” Sonharte Brasil” was condemned for the improper use of the trademark of another company in the same branch, “Sonhart”.

The original instance recognized that “Sonharte “used the expression for the dissemination of its services, so that the conclusion of the violation of the industrial property right of”Sonhart” was reached.

In this case, it was proven that there was unfair competition with the use of a name “practically identical” to that registered by the competitor “in the same field of economic activity, in order to mislead the consumer”.

Damage by the commercialization of personal data in a database: for the Third Class of the STJ, the availability or commercialization of personal information of the consumer in a database, without his knowledge, configures the hypothesis of moral damage “in re ipsa”.

In a recent judgment, the ministers kept in R$ 8 thousand the compensation due to a consumer who had his data disclosed by a company of solutions in credit protection and fraud prevention.

In this case, in addition to the maximum protection of the Consumer Protection Code, it is also necessary to observe and apply the LGPD – General Data Protection Law.

In an excerpt from the judgment we have the following: “the consumer has the right to be aware that information about him is being archived/marketed by a third party, without his authorization, because of this right two others arise that are guaranteed to him by the legal system: the right of access to stored data and the right to rectify incorrect information.”

According to the rapporteur Minister, failure to comply with the duties to process consumer data – including the duty to inform – gives rise to the right to compensation for the damage caused and to immediately cease the offense to the rights of the personality.

The discussion about the presumed damages is, in addition to being necessary, constant within our legal system, due to the necessary updating of the hypotheses for its configuration, reducing the duration of the processes, as well as guaranteeing greater legal certainty.

Giovanna Luz Carlos, – lawyer, graduated in law, from Centro Universitário Padre Anchieta (2019), enrolled in the Brazilian Bar Association, São Paulo Section (OAB/SP) (2020). Postgraduate in Civil Procedure from Faculdade Damásio De Jesus. Lawyer and leader of organizational and Cultural Development at TM Associados.