FullCompensation: pain and suffering damages shouldn’t be a lottery

by: in Law

Suppose that you get injured in an accident. In that case, you are entitled to damages. Damages are money that the injurer (or their insurer) must pay to you to make you ‘whole’. The aim of damages is, basically, to fully compensate you. Sounds easy? Believe me, it’s not!

Ecomomic vs non-economic damages: what’s the problem? Damages can be either economic or non-economic:

Economic damages are usually easy to determine. Think of the money you spend to get medical treatment or to fix your car after an accident.

Non-economic (non-pecuniary) damages regard losses that do not have a price. These include pain and suffering and loss of enjoyment of life. As such, non-pecuniary damages are more subjective and unpredictable than economic damages. This is problematic:

  • It is unfair: different damages are often awarded for similar injuries.
  • It is inefficient: it makes it harder for the injurer and the injured to settle their dispute out of court.

In several EU countries, guidelines have been developed to help judges quantify non-pecuniary damages. These range from simple collections of cases to more sophisticated schedules of monetary values. Despite this, damages remain highly variable. All in all, compensation of non-pecuniary damages seems to remain a lottery that is unfair and inefficient.

Tackling the ‘damage lottery’: the FullCompensation project
As a Marie Skłodowska-Curie Fellow, I will tackle this issue with my MSCA project FullCompensation - Rationalising Full Compensation of Non-Pecuniary Damages to Reconcile Equal Treatment and Personalisation. I will conduct my research at METRO from 1 April 2022 to 30 September 2023.

In particular, FullCompensation aims to develop guidelines for adjudicators and a model legislative proposal for EU Member States that reconcile equal treatment and personalisation of non-pecuniary damages. Please note that the aim is not to make sure that injuries get the same monetary amount across the EU. Rather, the aim is to develop a procedure that reduces bias and inequality in the full compensation of non-pecuniary damages.

To this end, the project will look at how guidelines actually work in selected EU countries by reviewing cases and interviewing adjudicators of damages. Draft guidelines will then be discussed in focus groups with stakeholders, including victims, judges, insurers, and policymakers.

Interested in this project? Then follow this blog for updates! 

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