Happiness and Tort Damages Revisited: Evaluating the Physical/Emotional Distinction Through Survey Evidence

Abstract

Tort law has historically drawn a line between physical and emotional harms, limiting recovery on the latter through various common law doctrines. The emotional/physical distinction is often defended on practical grounds, by reference to the nebulous nature of emotional injuries, the inability of courts to effectively distinguish genuine and serious emotional harms from fraudulent ones, and the difficulty in valuing such injuries. Underlying such practical arguments, however, is an enduring suspicion – often, but not always, implicit – about the importance of emotional tranquility to our lives. This paper employs survey data on subjective well-being to compare the impact of physical and emotional health on the quality of life (and, in turn, to evaluate the differential treatment of emotional and physical harms in tort). The hedonic impact of mental and physical conditions are compared using four different pairs of survey instruments, one in each similarly-worded and scaled pair concerning emotional health and the other physical health. All four of the comparisons suggest that emotional harms impact subjective well-being to a greater extent than physical conditions that (1) entail similar losses of capability and/or (2) manifest with similar frequency and/or (3) rise to particular levels of seriousness. By employing a single metric through which to compare the impact of physical and emotional harms – and a metric that, I will argue, is germane to the compensatory goal of tort damages – this novel approach offers important insights about the relative importance of different types of health (or harm) to our lives.