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Pain and Suffering and Beyond: Some Thoughts on Recovery for Intangible Loss
Abstract
Beginning in the mid-twentieth century, one can identify a continuing chorus of skeptics on the prospect of awarding damages for intangible loss in cases of accidental harm. The skeptics range from a law and economics scholarship that puzzles over the question of why prospective injury victims should be, in effect, forced to purchase a form of insurance (pain and suffering) that has not been sufficiently valued to be offered in the market, to a leftist critique that objects to the commodification of misfortune. Indeed, it recently has been argued that from any widely-accepted perspective on the goals of tort law - compensation, deterrence, corrective justice and fairness, administrative cost concerns, and the like - pain and suffering recovery ought to be eliminated and recovery should be granted exclusively for economic loss suffered as a consequence of personal injury. These persistent qualms seem to establish good grounds for locating pain and suffering damages more precisely on the spectrum of tort claims for redress of intangible loss, and considering whether the reservations about pain and suffering recovery are context-bound to scenarios of accidental harm or have wider applicability. In thinking about pain and suffering from this broader perspective on compensation for intangible loss, I will suggest commonalities that firm up the base for recognizing the legitimacy of pain and suffering recovery. I begin with some thoughts on context internal to the pain and suffering claim in an accidental harm case. Then, I turn to a broader historical overview of intangible loss that leads, in turn, to a look at the present landscape from a wide-angle perspective. Finally, in view of the many byways that intangible loss has taken, I reassess and question the coherence of a "make-whole" foundation for pain and suffering.
... In the literature, the incommensurability of monetary compensation with pain and suffering is generally regarded as the starting point of the arbitrariness (Geistfeld, 1995;King, 2004;Rabin, 1993Rabin, , 2006Sunstein, 1994). To begin with, money payments cannot be equated with worldly suffering (Abel, 2006). ...
Compensation for pain and suffering damages has been a focal point within legal academic debate. The difficulty of placing a monetary value on such damages and the lack of well-defined guidelines have been claimed to result in widely varying compensatory awards, making them random and unpredictable. Variability may arise from victim labels depicting who is deserving, and who is not. In this study, regression analysis is employed to assess whether compensation can be predicted, and what role victim labels play in the judicial decision-making. The empirical strategy is informed by notion of the ideal victim. Results show that compensation for pain and suffering damages can be predicted, and that by including victim labels the prediction significantly improves. Although they are not the predominant predictors, victim labels of blamelessness play a role in awarded compensation. The main driver in judges’ decision is the claim put forward by the victim.
Many jurisdictions award pain and suffering damages, yet it is difficult for judges or juries to quantify pain. Several jurisdictions, such as California, cap pain and suffering damages or other noneconomic damages, and legal scholars have proposed ways to control such damages. Reforms and proposals, however, have been based on limited empirical evidence. It remains an open question whether components of economic damages explain pain and suffering damages. This study employs a unique data set of Taiwan district court cases and uses detailed information on the components of pecuniary damages. Pain and suffering damages highly correlate with the plaintiff’s medical expenses, level of injury, and the amount requested by the plaintiff. The association with the amount requested by the plaintiff persists when one accounts for the likely quantifiable influences on pain and suffering damages, evidence of a possible anchoring effect. The strong correlation between economic damages and noneconomic damages persists in a large U.S. dataset of judge and jury trials, in which the noneconomic fraction of total damages is no greater than the pain and suffering fraction of total damages in Taiwan. Judges and juries consistently produce coherent patterns of noneconomic damages.
Many jurisdictions award pain and suffering damages, yet it is difficult for judges or juries to quantify pain. Several jurisdictions, such as California, cap pain and suffering damages or other noneconomic damages, and legal scholars have proposed ways to control such damages. Reforms and proposals, however, have been based on limited empirical evidence. It remains an open question whether components of economic damages explain pain and suffering damages. This study employs a unique dataset of Taiwan district court cases and uses detailed information on the components of pecuniary damages. Pain and suffering damages highly correlate with the plaintiff's medical expenses, level of injury, and the amount requested by the plaintiff. The association with the amount requested by the plaintiff persists when one accounts for the likely quantifiable influences on pain and suffering damages, evidence of a possible anchoring effect. The strong correlation between economic damages and noneconomic damages persists in a large U.S. dataset of judge and jury trials, in which the noneconomic fraction of total damages is no greater than the pain and suffering fraction of total damages in Taiwan. Judges and juries consistently produce coherent patterns of noneconomic damages.
This chapter explores the relationship between law and suffering. It considers whether suffering is recognized by law, what particular meaning the law ascribes to suffering, and, further, whether law includes as one of its objectives, the relief of suffering, and if so how this relief is obtained. The effectiveness or otherwise of current legal measures in dealing with suffering are also examined. Definitions of suffering are also be compared and contrasted as different interpretations of suffering would inevitably give rise to different methods of dealing with suffering. Can there be one right definition applicable at all times or does the meaning of suffering change along with changes in society in tandem with evolving rights and obligations? In the case of different interpretations and perspectives of suffering, such as that between law and medicine, the similarities and differences need to be understood since without this, any tentative discussion between medicine and law and each discipline’s approach to the alleviation of suffering might not be beneficial (or acceptable) whether to either discipline or the society at large. Certain challenges that could arise in attempting to find a workable solution or even a common objective in relieving suffering as a result of vastly different perceptions of suffering are also identified. Law’s approach to suffering is complex and its ability to alleviate suffering is not necessarily achieved at all times. Perhaps there might be grounds for a different approach towards law-making and law-enforcement so that human suffering may be better addressed.
Most jurisdictions in the United States award pain and suffering damages to spouses of victims in wrongful death cases. In several East Asian countries, spouses, parents, and children of the victim can all demand pain and suffering damages. Despite the prevalence of this type of damages, and the oft-enormous amount of compensation, there has been no large-scale empirical study on how judges achieve the difficult task of assessing pain and suffering damages. Using a unique data set containing hundreds of car accident cases rendered by the court of first instance in Taiwan, with single-equation and structural-equation models, we find the plaintiffs' ad damnum has a statistically significant influence on the court-adjudicated pain and suffering damages. That could be evidence for the anchoring effect. Nevertheless, courts are very sensitive to the possibility of pushing defendants into financial hardship. When defendants' out-of-pocket payments of pecuniary damages, divided by defendants' income, are positive, this amount has a negative effect on the amount of pain and suffering damages, whereas when they are negative (this could happen because the amount of compulsory insurance payment had to be deducted), the amount in absolute value has a positive effect. Not all next-of-kin received the same amount. Spouses of the victim received more than other next-of-kin, and adult children received the least among eligible relatives. Parents, however, tended to be awarded a high amount of pain and suffering damages when they were the only familial group suing the defendant.
Een robuuste onderzoeksbevinding is dat letselschadeslachtoffers niet alleen financieel maar ook relationeel willen worden gecompenseerd. Aan de hand van acht interviews met letselschadeslachtoffers die hebben doorgeprocedeerd tot de Hoge Raad laten wij allereerst zien dat ook zij op zoek zijn naar beide vormen van compensatie. Ten tweede maken wij duidelijk dat dit niet betekent dat de inspanningen in verband met de behoefte aan financiële en relationele compensatie in de praktijk ook eenvoudig verenigbaar zijn; integendeel. Financiële compensatie vraagt om rationeel calculerend handelen door partijen die tegengestelde belangen najagen, terwijl relationele compensatie vraagt om een verzoenende houding waarbij beide partijen proberen de relatie te herstellen die is verstoord door het berokkende letsel. Voorts leiden wij uit ander onderzoek af dat niet alleen claimanten, maar ook aangesprokenen en hun advocaten en verzekeraars kampen met de dilemma’s die de omgang met beide behoeften met zich meebrengen. Bovendien formuleren wij de verwachting dat de spanning tussen beide handelingsprincipes verder zal toenemen als gevolg van maatschappelijke trends die gelijktijdig optreden. Of het mogelijk is om de spanning te reduceren tussen de handelingen die nodig zijn in verband met de behoefte aan financiële en relationele compensatie is twijfelachtig, aangezien beide partijen een sterke prikkel hebben om zich calculerend op te stellen en, mede hierdoor, de neiging hebben om te twijfelen aan de oprechtheid van de intenties van de andere partij om te willen verzoenen.
When we talk about tort law, we should start with the premise that it is designed to protect [human] dignity and promote social equality and social justice. Our causes of action and remedies should be tailored to…achieve those ends. Introduction: According to proponents of therapeutic jurisprudence, legal rules and actors (lawyers, judges, etc.) can have either therapeutic or anti-therapeutic effects. Law is a social force with the potential to impact either positively or negatively the emotional life, psychological well-being and sense of social citizenship of legal subjects. Remedies for vindicating rights provide a conceptual lens for ascertaining how the interest at stake is valued. Therapeutic or anti-therapeutic effects may result from the valuation of a plaintiff’s losses and his/her human capital, especially when compared with others in similar circumstances. Personal injury can have a particularly devastating impact on the lives of victims — physically, psychologically, financially, socially, etc. It is therefore important that personal injury law, in particular the assessment of losses, should seek to improve therapeutic outcomes for victims and minimize the potentially harmful effects of engagement with the legal system that may result from focusing on social identity. As Cassels notes, “It is hard to use the word justice to describe a system that replicates injustice and ensures that the disadvantaged remain disadvantaged.” The underlying premise of this paper is that although the structure of tort law is generally informed by corrective justice, that is, consideration is given only to the relative positions of the injurer and victim in a dispute, the tort system often reflects distributional considerations or broader societal interests. Thus, tort law principles, in particular those relating to the determination of liability, are rarely conceived solely in terms of correlativity and hence a bilateral engagement between the victim and tortfeasor. Rather, courts often consider broader issues such as the impact of a finding of liability on particular relationships and on the availability of certain social goods. These considerations can result in denial of an otherwise “legitimate” claim. Thus, notwithstanding how compelling a plaintiff’s claim might be from a moral and corrective justice standpoint, liability may be considered morally objectionable or socially undesirable. Viewed in this light, tort law is utilitarian because it reflects broader societal interests and a willingness to sacrifice individual interests for the greater good of society. Emphasis on broader societal considerations in determining the nature and limits of tort liability underscores the fact that the administration of justice, and in particular tort law, is a human and social institution designed to respond to the needs of society.Courts frequently make policy decisions and choices in their decision-making. As Professor Luntz argues, reliance on legal principles alone will often be insufficient to decide cases that come before the courts and it is important for courts to use policy in making decisions. Courts sometimes openly acknowledge that legal principles or aspects of their decision-making process reflect particular policy choices, values and distributional considerations, whereas others do not and even disavow reliance on policy. This confirms the observation that law, in particular the role of courts, is not simply declaratory of pre-determined rules or naturally constitutive social relations, what has been referred to as the “fairy tale view of law.” Rather, courts and legislatures actively construct, structure and maintain social relations. One of the benefits of this process is the ability to structure tort law to respond to the changing needs of society and to reflect contemporary conceptions of social mores, values and justice. Courts make particular policy choices that reflect their perception of social reality and human interactions, including assumptions about the place and role of persons in society, which may be gendered, racialized, classed, ableist, etc. Luntz argues that the fact that judges can have multiple reasons for a particular outcome, even if they concur in the result, and the frequency of dissenting judgments show the latitude available to judges. These varied outcomes cannot result merely from the application of legal principles; judges are bound to be influenced by values and policy considerations in making their decisions. Many tort theorists and courts reject a purely monist and non-instrumental view of tort law. While tort law is seen as an instrument for shaping society and hence promoting broader societal interests with respect to liability, distributional considerations are rarely adopted at the remedial stage. Rather, courts resort to formal legal principles and the need for “principled” outcomes that accord with law and justice between the parties when providing remedies for tort victims. Specifically, courts rely on the principle of restitutio in integrum — restoring the plaintiff to her status quo ante as far as money can do — as justification for the formalistic approach. Broader societal interests are deployed in remedial considerations usually in relation to intangible interests (non-pecuniary damages) and non-compensatory damages, such as punitive damages. However, there is reluctance to infuse broader policy considerations into compensation for tangible interests, such as impaired working capacity, in ways that will promote social justice, fairness and the equal moral worth of all plaintiffs. This reinforces historical patterns of discrimination, and projects these inequalities into the future, sometimes contrary to changing social realities.This paper adopts a consequentialist approach that focuses not only on substantive principles of tort liability but also considers how general principles of tort remedies are applied to victims, especially claimants from marginalized backgrounds. I explore the implications of the principle of corrective justice on the tort system, noting its inadequacy to fully explain the workings of that system and arguing that distributional considerations necessarily intrude. Remedies for personal injury can be a site for reinforcing and exacerbating the vulnerability and devaluation of members of marginalized groups. Discrimination is pronounced in the assessment of pecuniary losses, specifically in trust awards and damages for impaired working capacity. The paper will focus on these issues because the traditional legal principles informing this area reveal the unfairness to claimants from marginalized backgrounds and could leave the impression that it is cheaper to injure persons from such backgrounds compared to those from more favourable socio-economic situations. Damages for impaired working capacity and in trust awards also present unexplored opportunities to creatively assess victims’ losses in ways that will not reinforce their socially constructed marginalization and devaluation. This also reflects our commitment to equality and the Canadian Institute for the Administration of Justice’s (CIAJ) theme of using remedies to give content to substantive legal rights and to reflect “contemporary trends in law and society.”
In the era of globalization and of information technology, the conduct of states is the subject of numerous reports published routinely throughout the world by various sources, primarily the mass media and non-governmental organizations. Those reports shape the reputations of states in the eyes of individuals, publics, organizations, and governments. While most reporting may be presumed accurate, disinformation inevitably finds its way into the international public domain and does injustice to the states concerned. Nevertheless, states normally do not enjoy a legal, actionable right of reputation, nor is the option of endowing them with such a right seriously considered in the political and academic international debates. Against this background, my Article seeks to conceptualize states' interest in their reputation as a legal right.As general principles of law recognized by national legal systems constitute a source of inspiration for international law, the Article draws an analogy from domestic laws of defamation, which are prevalent worldwide, and calls for establishing a parallel normative framework in international law. Based on insights drawn from the areas of political science, international relations, sociology, and communications studies, the Article contends that the principal rationales of defamation law, which typically concern natural persons and private legal entities, are relevant to states as well. As it explains, given the prominence of mass media reporting and of the public opinion in today's international arena, false defamatory statements harm substantial interests of states, especially the weaker ones. This is so particularly when states are accused of violating international law. The harm suffered by states also generates side-effects that are often felt by their individual nationals. Furthermore, defamatory falsehoods are harmful from the perspective of the international community as a whole, especially in light of the crucial and complex role played by information in contemporary life. Thus, such publications reduce states' incentive to comply with international law, and render the global decision-making processes less informed and consequently less efficient. Arguably, they also undermine the individual right of the citizens of the world to be properly informed and to take a meaningful part in global governance.Taking into account the needs of states, practical constraints, and considerations pertaining to the freedom of speech, the Article concludes by portraying basic parameters for designing an international law of libel.
At present, no well-defined legal standards exist for assessing tort damages for nonmonetary injuries such as pain and suffering. As a result, jury awards for pain and suffering vary widely for similar injuries. In response, many states have enacted legislative reforms that limit pain-and-suffering awards. Meanwhile, many tort-reform advocates call for eliminating pain-and-suffering damages altogether. This Article argues that pain-and-suffering awards are desirable and proposes a method for calculating nonmonetary injuries that could be implemented without resort to radical reform measures. After a thorough survey of the approaches used to compute pain-and-suffering damages and current reform proposals the author demonstrates that full compensation is desirable since eliminating or reducing nonmonetary damage awards would create significant inefficiencies and inequities. Applying well-accepted economic principles, this Article recommends that juries assess damages from an ex ante perspective that asks how much a reasonable person would have paid to eliminate the risk that caused the pain-and-suffering injury. The author shows that this methodology is appropriate for all tort cases; that it would yield reasonably accurate results despite data limitations; and that it can and should be implemented within the current system. For these reasons, the ex ante full-compensation award is a dramatic improvement over the current approaches to calculating pain-and-suffering damages.