Chapter 1 - Introduction

Summary

The assessment of noneconomic damages associated with personal physical injuries remains a daunting task for courts and is the subject of a longstanding and unresolved debate in legal scholarship. Personal physical injuries are closely related to human activity and may hence occur in a multitude of contexts, for instance as a result of defective products, medical errors, traffic or work-related accidents. The consequences of such injuries can be very detrimental to the lives of the victims, especially when they involve permanent disability. The numbers are quite revealing. According to the latest statistical data from the European Commission, traffic accidents occurring on the roads of the European Union in 2012 resulted in more than 28,000 fatalities. For every death it was estimated that four permanently disabling injuries, such as brain damage or spinal cord lesion, and eight serious injuries occurred. A similar situation is observed in the workplace where, based on the most recent statistical data, more than 2.8 million serious accidents occurred in 2009, resulting in 3,806 fatalities. The way in which courts assess pain and suffering damages in cases of personal physical injuries does therefore not only concern legal theory and practice, but can also potentially directly affect a large number of people. Improving the way pain and suffering damages are currently assessed in the context of tort law lies at the heart of this book.

AIM OF THE RESEARCH

On the occurrence of wrongful behavior that results in personal injury, the injured party can claim pain and suffering damages for the immaterial loss incurred. Assessing this loss is not straightforward and there are different approaches to guide the assessment across the European legal jurisdictions. In some countries, for instance, courts are assisted in their assessment by the existence of systematized tables, which report the amounts that have been awarded for specific injuries in previously adjudicated cases. In others, ranges of injury-specific amounts are stipulated, based again on awards that have been granted by courts in the past.4 Instead of using ranges, courts in some countries are guided by tables that include amounts corresponding to points of invalidity. In other countries where no system of rationalizing pain and suffering damages is in place, judges may enjoy full discretion in deciding the magnitude of the award.