El daño corporal Una crítica a la jurisprudencia colombiana en materia de indemnización de daños extrapatrimoniales

Abstract

Despite the fact that our damage right is inspired in the principle of restitutio in integrum, positively incorporated in the article 16 Law 446, 1998, our judges and magistrates only recognize as extra-patrimonial indemnity payment for damage the traditional pretium Moris and the novel physiological damage or damage to a relation life. Based on this, our jurisprudence ignores a reality: the physical damage (regarded as a pure phenomenon, not bearing in mind its patrimonial and non-patrimonial consequences) which affects human beings, so there should be a corresponding indemnity to body damage.

 

Consequently, a concept of body damage as damage-event which is created by the damage to the victim, a damage that in spite of the fact that it cannot be economically estimated should be sufficiently compensated by a "replacement" satisfaction fairly determined by a judge (arbitrium judias).