Pain and Suffering Damages Based on QALYs: Circumventing Victims' (and Juries') Hedonic Misperceptions

Abstract

Insights from psychology have recently found their way into tort law, suggesting that both victims and juries suffer from hedonic misperceptions which are attributed to the psychological phenomena of hedonic adaptation neglect and the focusing illusion, causing victims to exaggerate their physical and emotional harm, and juries to award excessive damages for pain and suffering. This article argues that a framework based on the measure of Quality Adjusted Life Year from the domain of health economics, is better suited to aid juries in the assessment of pain and suffering damages because it can allow hedonic adaptation to be reflected in the amounts to the extent (and if) it occurs and can deal with the problem of focusing illusion. In doing so, the proposed framework does not compromise its other important qualities, namely its ability to yield amounts corresponding to the severity and duration of the physical and emotional harm.