Jurisprudencia de la Cámara de Apelaciones en lo CAyT de la C.A.B.A.: EMPLEO PÚBLICO – REMUNERACIÓN – INDEMNIZACIÓN – DAÑO MORAL

SÍNTESIS.- La Cámara por mayoría confirmó la sentencia de grado, en cuanto hizo parcialmente lugar a la demanda interpuesta por la parte actora y reconoció la indemnización de $ 7.000.- en concepto de daño moral.
En cuanto a la acreditación del perjuicio moral, es dable destacar que, debido a su naturaleza, no resulta posible probar el daño en forma directa. Por ello, la prueba indirecta, es decir los indicios y las presunciones, cobra especial relevancia y pueden resultar suficientes para acreditar los padecimientos sufridos (conf. PIZARRO, RAMÓN DANIEL, Daño Moral. Prevención, Reparación. Punición, Buenos Aires, Hammurabi, 2004, 2º ed., p. 62).
Por su carácter subjetivo, es difícil determinar la dimensión económica como respuesta al daño moral. Su entidad se traduce en vivencias personales del afectado y en general no se exterioriza fácilmente. Para fijar su cuantía, el juzgador ha de sortear las dificultades de imaginar el dolor que el evento produjo en la esfera íntima del actor, y que no ha experimentado por sí mismo, para luego transformarlo en una reparación en dinero que compense el dolor y el trastorno espiritual sufrido; motivos éstos por los que el magistrado, más que en cualquier otro rubro, debe atenerse a una prudente apreciación y a las características particulares de la causa (CNCiv., Sala «L», “Espinosa Jorge c/ Aerolíneas Argentinas”, J.A., 1993-I-13, del 30-12-91).
En ese sentido, corresponde considerar las características del hecho dañoso, su duración, las circunstancias personales de la víctima y las secuelas permanentes padecidas.
En el caso, la actora se vio privada de su fuente de sustento por varios meses. Los testigos fueron contestes al señalar el estado de angustia y los padecimientos físicos que la demora en el pago de sus haberes le provocó.
El principal criterio para evaluar la razonabilidad de la estimación es, en definitiva, la propia práctica judicial y, en el caso, no advierto que el a quo se haya apartado de ella. Por lo tanto, atento a las dificultades que importa establecer una suma indemnizatoria en concepto de daño no patrimonial, así como que no se ha demostrado un apartamiento sustancial de la práctica judicial, ni se advierte una arbitrariedad manifiesta, cabe estar a lo establecido por el Juez de primera instancia.

GUNTHER ERICA GRACIELA c/ GCBA, Cámara de Apelaciones Contencioso, Administrativo y Tributario, 17/03/17

Fuente: Departamento de Biblioteca y Jurisprudencia del Consejo de la Magistratura de la Ciudad de Buenos Aires

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