Dano existencial presumido: convergências e divergências entre as turmas do tst nos casos de jornada exaustiva dos rodoviários

Abstract

This study approaches the analysis of existential damage related to road drivers’ exhausting work journey in line with the harmony between the understandings of the classes of the Tribunal Superior do Trabalho of Brazil (TST, in Portuguese) about the configuration of this institute in presumption. Due to the social chaos caused by the strike of road drivers in Brazil, in mid-2018, this study has its relevance highlighted. It was possible to observe the evident fragility experienced by the working conditions of most workers in the transport category. This study aims to examine the institute of existential damage and verify its relation to the exhaustive journey of road drivers, as well as verifying whether the TST classes have the same understanding about the possibility of the incidence of in re ipsa damage in such cases. This research has a deductive approach, making use of premises to reach, through logical reasoning, a conclusion. And as research techniques, bibliographic research and jurisprudential research are used. Given the above, it is possible to see that there is a strong divergence between the TST groups regarding the possibility or not of configuring the in re ipsa existential damage to be indemnified as a result of the exhaustive journey carried out by the road drivers. However, it was noted that there is a tendency to consider that the employee needs to fully prove that their life project or their social relationships were affected by an unlawful act committed by the employer so that there is the possibility of configuring the aforementioned indemnifiable existential damage.