Pain and Suffering: Damages in Search of a Sounder Rationale

Abstract

Compensation for non-pecuniary losses is one of the most controversial components of tort liability. Newspaper headlines routinely feature occasionally extreme awards, such as the $2.9 million award to the women who spilled a hot cup of McDonald's coffee on her lap.1 In contrast, small awards or accident victims who are unsuccessful in their suits receive negligible press coverage. Notwithstanding the salience of outlier award anecdotes, it is also clear that people suffer from accidents in more than financial ways. Lost earnings and medical costs often are not even the most consequential implications of an injury. The loss of one's life, the welfare effects of permanent disability, and the grief experienced by family members as the result of the death of an accident victim are among the many other consequences that distinguish personal injuries from events that simply involve monetary transfers. There are also consequences of accidents other than these itemized damages components, such as legal fees and the personal investment in the litigation process. These expenses make tort liability suits less of a windfall proposition than is frequently assumed. While it is clear that there are effects of accidents that are not monetary in nature, exactly what the court should do about these losses remains a matter of substantial controversy. There are a variety of approaches one could take to pain and suffering damages. The reason for this diversity of viewpoints is that the manner in which one should quantify the pain and suffering damages depends in large part on the rationale for these damages. One possibility is to establish damages that would provide appropriate incentives for the injurer to avoid injuring the plaintiff in such accident contexts. A possibly related objective is to make the plaintiff whole and restore the plaintiff to the same level of welfare as would be experienced if there had been no injury. Alternatively, is the objective of these damages to provide the victim with the same level of insurance that the victim would have chosen had pain and suffering insurance been available? Whereas these three approaches may lead to identical compensation levels for monetary losses, they usually will have quite different implications for pain and suffering for personal injuries. This article will be concerned with these and other possible rationales for pain and suffering damages and their differing implications for how damages awards should be set.