Towards a Better Assessment of Pain and Suffering Damages for Personal Injuries

Abstract

Even though there is general consensus that pain and suffering damages for personal injuries should primarily be based on the severity and duration of the impairment to health, the amounts granted differ greatly between and within countries. There is no legal framework to assess the correctness of the damages because a yardstick is lacking. The authors argue that the concept of Quality Adjusted Life Years (QALYs) from the field of health economics is able to provide the required framework. The primary legal objective of damages is to restore the victim as closely as possible to the position he would have been in without the accident. Besides compensation, satisfaction and prevention are also regularly mentioned as goals of pain and suffering damages. Whatever the goal, the authors' view is that pain and suffering damages must be based on the impact of the health impairment on the victim. The concept of QALYs allows pain and suffering damages to be based on the impact of the health impairment. A QALY expresses the value of living one year in a certain health condition. The health economics literature allows an assessment of the impact of different health conditions on quality of life. By subsequently monetizing QALYs, this impact is expressed in monetary terms, which provides a systematic basis for pain and suffering damages. The authors compare pain and suffering damages in several European countries with the amounts that would result from a conservative estimate of the monetary value of a QALY for specific types of personal injuries. They show that the amounts that are currently awarded are too low when compared to this assessment of the impact of the injury on quality of life. * Vaia Karapanou is a PhD student in the European Doctorate in Law and Economics (EDLE) and is attached to the Rotterdam Institute of Law and Economics (RILE) of the Erasmus School of Law; Louis Visscher is Associate Professor in Law and Economics at RILE. 1 We exclude fatal accidents from our analysis, because this requires different economic concepts (the so-called value of a statistical life and value of a statistical life year) than that applied in this paper.

Language-bound terms—term-bound languages: the difficulties of translating a national civil code into a lingua franca

“…39 See the Company Act 2006, the Partnership Act 1890 and the Limited Liability Partnership Act 2000. 40 See Part III (Companies) of Book 3 (Legal Persons) of the HCC. and again on the embeddedness of the law in the language and vice versa: on the embeddedness of the (legal) terms in the law; in other words, on their interwoven and interdependent cohesion.…”

“…In the UK, companies and partnerships (even those with limited liability and being recognised as a legal entity) are clearly distinctly treated categories, regulated in different parliamentary acts 39 without an umbrella term that would cover all of them, while the HCC treats both of these entities under a single, rigid and specific cover-category (gazdasági társaság). 40 The Hungarian translation finally chose to follow the practice and used the closest functional equivalent of companies, instead of the earlier term business associations, which could not be accommodated. This approach is fully in line with what Šarčević submits: approximate equivalents should-if possible and they are not misleading-be favoured over neologisms [5: 262].…”

Non-pecuniary Losses in the Economic Analysis of Torts: a Plea forEx AnteDetermined Damages

“…3 See the literature referred to in footnote 43. 4 Also see Karapanou and Visscher, 2010;Karapanou, 2014. 5 Bovbjerg, Sloan & Blumstein, 1989Magnus, 2001;Rogers, 2001;Markesinis et al, 2005, 16ff.…”

“…72 The amounts in this section are expressed in Euros from 2014 by using the annual average inflation rates published by Eurostat. For more examples, see Karapanou &Visscher, 2010 andKarapanou, 2014. In England, the amounts that have been awarded as pain and suffering damages for amputation of one leg below the knee range between £81,259 and £110,320 (approximately €100,800 -€136,800). 73 In the Netherlands, a 31 year old motor driver whose lower leg was amputated received about €64,446 in a settlement, whereas a 54 year old woman whose leg was amputated just above the knee received €49,937.…”

Feasibility of a Health‐Utility Approach to Quantifying Noneconomic Losses from Personal Injury

“…Several others have made the connection (Miller ; Ubel & Loewenstein ; Noah ; Avraham ). Karapanou and Visscher have explored the idea in some depth (Karapanou & Visscher , ; Visscher & Karapanou ; Karapanou ). On the whole, this emerging body of scholarship is optimistic about potential to turn health‐utility measures to this use, but the technical feasibility has not been empirically demonstrated to date.…”