Compensation for Pain: A Reappraisal in Light of New Medical Evidence

The theory that a primary causal link exists between the victim’s pain and the tortfeasor’s acts provides considerable appeal for the proposition that the wrongdoer should compensate for the victim’s pain. However, recent investigations of the phenomenon of pain by disciplines of the health sciences have challenged the medical theory upon which recoveries for pain and suffering are based. The results of that work are of obvious interest to the legal profession, for the new view of pain suggests that the tortfeasor’s acts bear only a tangential relationship to the pain that some victims experience. The results thus raise questions of how well the recognition given pain and suffering under existing law serves the interests of society in general and of tort law in particular. An improved understanding of the phenomenon of pain can be put to immediate and practical use by lawyers and judges working with cases that involve damage claims for pain and suffering.