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Doing Away with Inequality in Loss of Enjoyment of Life

Detail Summary
Date 16 February 2009
Time 11:45 - 13:15

Doing Away with Inequality in Loss of Enjoyment of Life

Abstract

On both sides of the Atlantic in the preceding decades we have witnessed an escalation in the monetary amounts awarded for the non-pecuniary component of damages in cases of personal injury. As a result of this escalation, the countries referred to have embarked on a shrill debate in trying to decipher a definition of their concrete notions of non-pecuniary damages and on their awarding methods.
Broadly speaking, in our view, non-economic damages for personal injury are essentially an attempt to offer compensation for "limitations on the person's life created by the injury." However, this attempt at pinpointing the role of non-economic damages has resulted in a distinction within the domain of traditional non-pecuniary loss, that is, between loss of enjoyment of life and pain and suffering. These two types of damage redress diverse, intangible losses in personal injury cases. The latter (pain and suffering) attempts to restore entirely subjective non-economic damages for intangible loss, while the former (loss of enjoyment of life) relies upon an "objective" basis for evaluation: the existence of an ascertainable medical condition. In several jurisdictions -especially the European ones- this outlined distinction echoes the constitutional choice of protecting health nd bodily integrity as a reaffirmed social value (e.g. in Italy or Germany) which deserves tort
damages compensation in order to grant a minimum level of protection. No such clear reference to the constitutional protection of health exists in the US in awarding damages for non-pecuniary loss. The main objective of this paper is, to offer a quick overview of the awarding systems for non pecuniary loss in Europe. Alongside this, it is intended to highlight the potential benefits an adoption (or adaption) of one of the various European systems by the US would realize, in particular for the assessment of loss of enjoyment of life.
It is important to stress from the outset that such a maneuver would not subtract from the traditional tort feature of individualized justice but alternatively would l serve better both horizontal and vertical equality.
In part II we will briefly discuss the evolution and actual state of the art of the awarding methods for loss of enjoyment of life in four European countries, thereby obtaining some challenging suggestions for the American experience. Finally, in part III we will discuss how the European solutions can be adapted to fit the American system while simultaneously promoting individualized justice and more predictability in the awarding system for loss of enjoyment of life.
Vice versa in part IV we will discuss more in length the potentials and danger of using in Europe assessing criteria often defended in the USA such as the VSL approach or the willingness to pay approach.

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