Towards a Better Assessment of Pain and Suffering Damages

Abstract

Abstract: Even though there is general consensus that pain and suffering damages for personal\ninjuries should primarily be based on the severity and duration of the impairment to health,\nthe amounts granted differ greatly between and within countries. There is no legal\nframework to assess the correctness of the damages because a yardstick is lacking. The authors\nargue that the concept of Quality Adjusted Life Years (QALYs) from the field of health\neconomics is able to provide the required framework. The primary legal objective of damages\nis to restore the victim as closely as possible to the position he would have been in without the\naccident. Besides compensation, satisfaction and prevention are also regularly mentioned as\ngoals of pain and suffering damages. Whatever the goal, the authors’ view is that pain and\nsuffering damages must be based on the impact of the health impairment on the victim. The\nconcept of QALYs allows pain and suffering damages to be based on the impact of the health\nimpairment. AQALYexpresses the value of living one year in a certain health condition. The\nhealth economics literature allows an assessment of the impact of different health conditions\non quality of life. By subsequently monetizing QALYs, this impact is expressed in monetary\nterms, which provides a systematic basis for pain and suffering damages. The authors compare\npain and suffering damages in several European countries with the amounts that would result\nfrom a conservative estimate of the monetary value of a QALY for specific types of personal\ninjuries. They show that the amounts that are currently awarded are too low when compared\nto this assessment of the impact of the injury on quality of life.