Thailand Law Journal 2013 Spring Issue 1 Volume 16

Non-pecuniary damages in injury causing to bodily harm

In the case of injury causing bodily harm, the physical pain and suffering damages are generally recognized as personal damages in personal injury cases, and thus the complaint does not need to allege pain and suffering in order to present evidence of it.²⁹ Apart from the physical pain and suffering damages, most states also enable the injured party, although different in a different kind of damages, to separately claim other non-pecuniary damages such as the mental pain and suffering, loss of enjoyment, disfigurement, disability see Richarson v Chapman, 676 N.E.2d 621,626.(111.1997), Frankel v United States, 321 F.Supp 1331.

Regarding the third party claim, the derivative action for loss of consortium is widely available for spouses. Loss of consortium is defined in Gate s v Foley, 247 So.2d 40 (Fla.1971) that "the companionship and fellowship of husband and wife and the right of each to the company, cooperation and aid of the other in every conjugal relation.  Consortium means much more  than mere  sexual relation  and consists,  also  of that affection, solace, comfort, companionship, conjugal life, fellowship, society and assistance so necessary to a successful marriage." For other family relationship, however, it is not consistent among the jurisdictions about the scope of loss of consortium claim. Some jurisdictions does not recognize a child's right to. recover consortium damages for injured parent while other jurisdiction does. By the same token, some jurisdictions grant parents for the consortium claim, or loss of society against those who injure their child while others do not.³⁰

In addition the loss of consortium, the third party, in some states, may claim the mental distress once she is suffered by witnessing an accident involving a loved one, or once she is terrorized by a situation threatening serious injuries but none results.³¹ The general rule is that the third party can claim for negligently caused distress on condition that there must be a physical injury and the third party must be in the zone of danger, although in a few states the zone of danger is not required.³²

Non-pecuniary damages in injury causing to death

In the case of injury causing death, although there are a lot of discussions against pain and suffering in the case of death, it is generally recognized that the claim for the decedent's pain and suffering prior to death is allowed through two major Acts.

Firstly, the Survival Acts generally have provided that certain of a decedent's causes of action survive the death and become the claims of the estate which the decedent's personal representative may pursue. This Act is designed for preventing the situation in which a decedent had initiated a legal action but, due to the death of the plaintiff, the case would be dismissed.³³ This practice was unfair to the decedent and her heirs and resulted in an undeserved windfall to the defendant.³⁴ The application of survival statutes to cases handles this problem by which the subsequent death will not affect the pre-existing claims for pain and suffering. Damages under these survival acts have ranged from medical expenses resulting from the injury, lost income pain and suffering prior to death as well as, in some jurisdictions, loss of enjoyment of life.³⁵ Despite the fact that most states widely recognize the claim for the pain and suffering damages prior to death, with the exception in few states, most of them do not recognize the non-pecuniary damage claim subsequent to death due to the fact that the injured is already dead and the granting such damages to the decedent's heir is undeserved windfall.³⁶

Secondly, regarding the third party claim, the Wrongful Death statutes have provided a cause of action for those injured by the death of the decedent, usually the spouse and children.³⁷ Under this Act, Damages are consisted of lost support-income of the decedent which would have benefitted the plaintiff-and loss of consortium. However, the scope and kind of damages may be varied in different states. Like the case of injury causing to bodily harm, the third party also can claim for the mental distress from witnessing an accident involving a loved one under above-mentioned condition.

Assessment of Non-pecuniary damages

It is very difficult to assess the pain and suffering damages due to the fact that it is subjective, fact dependent with no reference on the market value.³⁸ The extent of the pain and suffering damages seems to rely on how much the injured feel or perceive the pain. A lot of discussion is made to find out the most reliable methodology to assess such damages. In the US, the assessment of the pain and suffering damages is assigned to the jury. The plaintiff's counsel may show the evidence of pain and suffering through the testimony of the victim's loved ones or sometimes the expert testimony for future physical pain. She may convince the jury by using arguments about the activities that the plaintiff will never again be able to engage in, or the pain she will feel, minute by minute, hour by hour, and day by day fee Richardson v Chapman, 676 N.E.2d 621,626 (111.1997), Frankel v United States, 321 F.Supp 1331. Consequently, the jury's assessment of damages will be based upon the credibility of the victim, her family, and expert witnesses called by the parties.³⁹   

However, in many jurisdictions, the courts have refused two kind of non-pecuniary assessment. Firstly, the court does not permit the golden rule in which the assessment based on asking jury to award damages in an amount they would want for their own suffering or its avoidance in the disability, disfigurement, physical pain, and mental suffering.⁴⁰ Secondly, the court of many jurisdiction also decline the per diem argument in which the plaintiff's attorney propose a certain amount per day of suffering and then have the jury multiply that amount by the total number of days the plaintiff has endured suffering.⁴¹

In fact, the jury is given with no instruction and guideline for making the assessment of damages. The fact that the court provides jury with the jury instruction is unhelpful for jury's assessment of damages.⁴² The typical jury instruction for pain and suffering simply reads as follows:

"The guide for you to follow in determining compensation for pain and suffering, if any, is the enlightened conscience of impartial jurors acting under the sanctity of your oath to compensate the plaintiffs with fairness to. all parties to this action."⁴³

When jury give the verdict on damages, it is in practice conclusive due to the fact that the constitution prohibits courts to make a revision on factual finding by jury. The sole exception is that the court can disturb jury verdict only based on the fact that such award is "excessive" or "shock the judicial conscience", or "is obviously the result of passion or prejudice see Goulthard v Cossairt, 803 P.2d 86,92 (Wyo.1990). The reviewing court has two methods in disturbing the jury verdict based upon the concept of addititur and remittitur. In remittitur, if the excessive award is found, the reviewing court will provide the plaintiff with option to accept the remitter of verdict or seeking a new trial on damages.⁴⁴ On the other hand, in addititur, the plaintiff can seek review of a damage award if she believes that a jury verdict is inadequate. However, the reviewing court will disturb jury verdict only if the verdict fails to include an element of damage that was specifically proven in an uncontroverted amount or if, viewing the evidence in the light most favorable to the defendant, the verdict fails to award the plaintiff a substantial amount of compensation for pain and suffering See Hewett v Frye, 184 W. Va. 477, 401 S.E.2d 222(1990). If inadequacy of damages is proved, the court has authority to order an addititur, increasing the verdict by the amount necessary to render an adequate verdict.⁴⁵

The problems on the current mechanism of non-pecuniary damages

As mentioned above, since the non-pecuniary damages has no monetary equivalent and no clear guideline is given, a jury's asessment of non-pecuniary damages seems to be unavoidably arbitrary.⁴⁶ This arbitrariness of jury is normally happen considering that the assessment of non-pecuniary damages falls on the group of layman's shared common senses and opinion on the damages. However, the main problem based on the nature of jury arbitrariness is the consistency of the amount of damages. The cases with similar fact pattern may be granted by jury the different amount of non-pecuniary damages, which brings the issue of equity and fairness. In addition, such inconsistency of the assessment of non-pecuniary damages also leads to the following problems. First of all, the current assessment of non-pecuniary damages leads to the increasing administrative costs such as lawyer fee or other court expenses. Once the jury has no prior experience in assessing the non-pecuniary damages as well as the absence of clear rule or methodology in guiding jury how to make the non-pecuniary assessment, it is unsurprised that the administrative cost is higher because the jury needs more time to learn and understand the case prior to granting the verdict on the damage award.⁴⁷ Another problem permeated from the current assessment is the improper extent of the non-pecuniary damages. The jury, when given with no clear rule and guidance, is easily induced to determine the large amount of non-pecuniary damages. This may lead to the situation that the amount of damages is so much that the insurance company is unable to cover it and put the burden on the consumer in the future by increasing the insurance premium or refuse the insurance.⁴⁸ Such situation may arguably have the potential negative effect on the health cost of people due to likelihood that if the doctor is at risk to be liable with the large amount of non-pecuniary damages in the malpractice case, she will increase the treatment cost or more adversely decline for treatment.⁴⁹ Lastly, the current approach of the assessment of non-pecuniary damages may bring about the unpredictability.⁵⁰ Due to the assessment of damages relying heavily on the jury common sense, the amount of non-pecuniary damages is likely to be varied even in. the case with the similar fact and degree of injury. Such unpredictability may obstruct the concept of the optimal deterrence. Under the economic sense, the individual who know exactly the benefits and cost of every action they are going to undertake will weigh them to determine whether the intended action is advantageous for their utility.⁵¹ For example, assuming that A is late to attend the most important meeting, she can choose to drive the car very fast to attend the meeting in time. However, as a reasonably behaving person, she would predict how much damages she has to pay in case of her driving causing injury to someone and, she would weigh the damages with the benefit that she will gain in case of attending the meeting in time. Thus, unless rationally behaving person can foresee that how much she is compelled to pay for tort liability, she cannot compare and contrast the benefit and cost in order to take a proper caution which constitutes the optimal deterrence.⁵² Nevertheless, the concept of optimal deterrence is often criticized that it is so focused on the aspect of efficiency that it may more or less abandon the aspect of morality or justice which is the most crucial purpose of law. Assuming that A can predict the damage she would be liable, she would persist to drive very fast regardless of her liability, for example, in case that her father is in need for emergency. However, despite such critic, the concept of optimal deterrence also keeps; its value if the aspect of efficiency can be considered along with the concept of justice and morality. In addition, the unpredictability of non-pecuniary damages results in the difficulty in settlement between plaintiff and defendant. Since the non-pecuniary damages are so varied, the parties fail to estimate how much damages jury will grant, which leads the different expectation on the amount of damages. For example, the-plaintiff who expects the granted amount of damages much more than the amount offered by the victim may be reluctant to make the settlement. The difficulty of settlement will later result in the cases load of the court and the increasing judicial administrative costs.

29.Supra note 20 p.527.

30.Ibid p.528.

31.Ibid p.688.

32.Ibid p.689.

33.Wex S. Malone.1965. "The Genesis of Wrongful Death", 17 Standard Law Review 1043.

34.Ibid.

35.Ibid.

36.Supra note 18 p.6-2.

37.David W. Leebron.1989."Final Moments: Damages For Pain and Suffering Prior to Death" 64 New York University Law Review 256.

38.Ibid.

39.Ibid.

40.Richard W.Wright.2010. Basic Principles of Liability "Chapter 9: Damages" p.698.

41.Ibid.

42.Supra Note 18 p.6-5.

43.G. Douthwaite.1981., Jury Instructions on Damages in Tort Actions 274 referred in Supra Note 31.

44.Supra Note 20 p. 556.

45.Ibid p. 557.

46.Harry Zavos.2009. "Monetary damages for nonmonetary losses: An integrated answer to the problem of the meaning, function, and calculation of non-economic damages" 43 Loyola of Los Angeles Law Review.

47.Supra Note 18 p.6-7.

48.Ibid p.6-8.

49.Ibid.

50.Ibidp.6-11.

51.paure Michael.2009. Tort Law and Economic 2nd edition Cheltenham: Edward Elgar Publishing Limited p.218.

52.Supra Note 18 p.2-32.