Pecuniary Damages Research Articles

Pain and Suffering Damages in Wrongful Death Cases: An Empirical Study

Most jurisdictions in the United States award pain and suffering damages to spouses of victims in wrongful death cases. In several East Asian countries, spouses, parents, and children of the victim can all demand pain and suffering damages. Despite the prevalence of this type of damages, and the oft‐enormous amount of compensation, there has been no large‐scale empirical study on how judges achieve the difficult task of assessing pain and suffering damages. Using a unique data set containing hundreds of car accident cases rendered by the court of first instance in Taiwan, with single‐equation and structural‐equation models, we find the plaintiffs' ad damnum has a statistically significant influence on the court‐adjudicated pain and suffering damages. That could be evidence for the anchoring effect. Nevertheless, courts are very sensitive to the possibility of pushing defendants into financial hardship. When defendants' out‐of‐pocket payments of pecuniary damages, divided by defendants' income, are positive, this amount has a negative effect on the amount of pain and suffering damages, whereas when they are negative (this could happen because the amount of compulsory insurance payment had to be deducted), the amount in absolute value has a positive effect. Not all next‐of‐kin received the same amount. Spouses of the victim received more than other next‐of‐kin, and adult children received the least among eligible relatives. Parents, however, tended to be awarded a high amount of pain and suffering damages when they were the only familial group suing the defendant.

Les vicissitudes du préjudice d’agrément

The fate of the loss of amenity has always been related to the right of recourse of the third-party payers against the person in charge of the damage. The loss of amenity has been recognized by Law of the 27 December 1973. It was at that time that it was excluded from the recourse of the third-party payers. It was not the case of the physiological injuries which had always been submitted to the recourse of the third-party payers. At first, these injuries had included the disorders in the conditions of existence. But in 2005, the Dintilhac nomenclature adopted a restrictive conception of the loss of amenity. This damage is now defined as the impossibility to practice regularly a specific activity of sport or leisure. In addition, the Law of 21 December 2006 imposed on third-party payers to exercise their action only on pecuniary damage. The physiological injuries were therefore excluded from this action. The strict definition of loss of amenity is both adopted in Civil Law and Social law. But in these two areas, the analysis of the judicial practice reveals that it is undermined the right for the full repair of the victims under their loss of amenity. Accordingly, the question of the opportunity to widen once more the definition of the loss of amenity arises today.

The Dearest Price: A Comprehensive Analysis of the Commercial Aviation Accident Exception to the Death on the High Seas Act and the Corresponding Legislative Process

This paper is a comprehensive review and analysis of the political process undergone by the Commercial Aviation Accident Exception to the Death on the High Seas Act, from inception to the modern day, and the effect that political processes had on the Commercial Aviation Accident Exception itself.The Commercial Aviation Accident Exception amended the Death on the High Seas Act, a federal statute that had largely remained un-amended since 1920. The Commercial Aviation Accident Exception allows for decedents’ beneficiaries to receive non-pecuniary damages, such as those for loss of companionship, when the decedents’ death results from a "commercial aviation accident" on the high seas. This is significant because DOHSA, which applies to any wrongful death occurring on the high seas, only allows for pecuniary damages, i.e. economic damages such as loss of financial support. The paper consists of four relatively distinct sections. The paper begins with the first section, by examining the events which placed the need for the legislation on the legislative agenda. The paper then moves on to examine the legal background establishing the need for the legislation, examines the policy considerations brought before Congress, and ultimately explains Congress’s policy decisions in reaction to the policy considerations before it. The paper then moves on to examine the legitimation process that the legislation underwent, and briefly provides the author’s preliminary thoughts on that process. Finally, the paper describes how the Commercial Aviation Accident Exception has been implemented by the judiciary and generally received by the public, industry, and the bar. I conclude by critically examining the successes and failures of the political process that produced the Commercial Aviation Accident Exception.

Non-pecuniary damages for wrongful dismissal

One of the consequences of wrongful dismissal is the damage sustained by the unlawfully dismissed person. It may occur in two forms: as material damage and as non- non-material damage. In the event of a wrongful termination of employment, material damage is reflected in loss of earnings and other income that could have been received if there had been no wrongful dismissal, as well as in failure to pay contributions for mandatory social insurance. The compensation for material damage (pecuniary damages) for wrongful termination of employment is not a matter of controversy in Serbian theory and practice. Besides material damage, wrongful dismissal may also cause non-material damage. In the spirit of Serbian law, it may be reflected in sustained mental pain (for the violation of dignity and reputation, and/or violation of one's personality rights) and sustained fear. The right to claim compensation for non-material damage (non-pecuniary damages) is a subject matter of debate particularly in legal practice. The major issue of dispute in wrongful dismissal cases is the question whether it is necessary to award non-pecuniary damages for sustained mental pain or distress (in addition to pecuniary damages), or whether the rendered court decision (establishing that the dismissal has been wrongful and that the employee shall return to work) is a sufficient satisfaction. Inter alia, the same question has been posed in respect of the cases involving the unlawfully dismissed judges and prosecutors. The authors advocate the standpoint that a wrongful act cannot be fully remedied in all cases only by awarding declaratory relief and returning the employee to work. Hence, non-pecuniary damages should be awarded as compensation for non-material damage caused by wrongful termination or dismissal whenever it is justified by the circumstances of the case.

Group litigation reaches Mexico: Revisiting Mexico's system of collective actions as a vehicle to ensure efficient implementation of environmental justice

This Note analyzes the decision of the Mexican legislature to allow for a system of group litigation to redress a particular set of environmentally based legal problems. The laws of Mexico, as they currently read, do not comport with the legislative intent of the authors of the legislation to allow for group litigation. This is primarily an effect of the economic incentives imposed by the new system of group litigation on institutional interests and corporate actors in Mexico. The argument advanced by this Note is that either judicial or legislative clarifications must be made to this legislation to effectuate the intent of the acts of the Mexican Congress. This may be achieved through Juris-prudencias, Ejecutorias, expansive judicial interpretation in the coming years, or through additional legislative amendments; all of which could provide additional parameters to ensure the unassailable environmental and constitutional rights of Mexican citizens. However, this Note advances the idea that the most effectual vehicle for implementing such change is through the introduction of additional pecuniary damages with regard to group litigation. In the coming years, the system of group litigation in Mexico is certain to come under heavy criticism and scrutiny from citizens, legal scholars and politicians alike. The arguments proposed herein must be addressed by the Mexican Congress to ensure that the environmental rights of citizens, guaranteed by the Mexican Constitution, are not subordinated to institutional economic interests.

The Death of Slander

Technology killed slander. Slander, the tort of defamation by spoken word, dates back to the ecclesiastical law of the Middle Ages and its determination that damning someone‟s reputation in the village square was worthy of pecuniary damage. Communication in the Twitter Age has torn asunder the traditional notions of person-to-person communication. Text messaging, tweeting and other new channels of personal exchange have led one of our oldest torts to its historic demise. At common law, slander was reserved for defamation by speech; libel was actionable for the printed word. This distinction between libel and slander, however, rests on a historical reality that is no longer accurate. Originally, permanence and breadth of dissemination always coincided. Slander carried only as far as one‟s voice. Because of slander‟s presumed evanescence, common law required plaintiffs to plead special damages—proof of economic harm—in order to recover for slander. The advent of broadcast technology, with its ability to amplify the spoken word, challenged the traditional division of defamation and forced courts and legislatures to reconsider old classifications. Jurisdictions split in their decision to characterize broadcast speech as libel or slander, largely because of divergent views about which aspect of the speech—permanence or breadth of dissemination—was more important. Postbroadcast technology has further complicated the defamation arena, leaving parties unsure of how best to plead their defamation case. In the past decade technology has again changed the way we communicate. The digital communication revolution has created instances of widespread dissemination through quick, nonreflective and often passing statements. This past year, for example, Wael Ghonim‟s tweet to join him in an Egyptian village square lead to the downfall of Egypt‟s political powers. His fleeting comments to those willing to listen caused an entire nation to fall. This Article considers how courts should rule when these tweets, or text messages, not quite printed, not quite spoken, are defamatory. This Article argues that the advent of text messaging, tweeting and other forms of digital communication, which I call “technospeech,” renders the medieval tort * Professor of Law, Pace University School of Law. B.A. 1982 Univ. of Fla. J.D. 1985 Univ. of Fla. I am most grateful to Bridget Crawford, Donald Doernberg and Noa Ben Asher for their helpful comments and conversations, and to Joanna Karlitz and Meghan Quinn for their outstanding research support. (2) Garfield Death of Slander 1/13/2012 5:06 PM 18 COLUMBIA JOURNAL OF LAW & THE ARTS [35:1 of slander irrelevant in today‟s technological world. The article provides new support for the contention that courts and legislatures should treat libel and slander uniformly and should abolish the archaic requirement of proof of special damages, a burden traditionally reserved for the spoken word. Maintaining slander in the Twitter Age, with its requirement of proof of economic harm, vitiates the common law purpose of defamation. Treating all defamation similarly promotes fairness for plaintiffs seeking to rehabilitate their damaged reputation and provides predictability to those bringing defamation claims. A thoughtful and orderly treatment of technospeech mandates that courts and legislatures put the proverbial final nail in the coffin of slander.

Group Litigation Reaches Mexico: Revisiting Mexico's System of Collective Actions as a Vehicle to Ensure Efficient Implementation of Environmental Justice

This Note analyzes the decision of the Mexican legislature to allow for a system of group litigation to redress a particular set of environmentally based legal problems. The laws of Mexico, as they currently read, do not comport with the legislative intent of the authors of the legislation to allow for group litigation. This is primarily an effect of the economic incentives imposed by the new system of group litigation on institutional interests and corporate actors in Mexico. The argument advanced by this Note is that either judicial or legislative clarifications must be made to this legislation to effectuate the intent of the acts of the Mexican Congress. This may be achieved through Jurisprudencias, Ejecutorias, expansive judicial interpretation in the coming years, or through additional legislative amendments; all of which could provide additional parameters to ensure the unassailable environmental and constitutional rights of Mexican citizens. However, this Note advances the idea that the most effectual vehicle for implementing such change is through the introduction of additional pecuniary damages with regard to group litigation. In the coming years, the system of group litigation in Mexico is certain to come under heavy criticism and scrutiny from citizens, legal scholars and politicians alike. The arguments proposed herein must be addressed by the Mexican Congress to ensure that the environmental rights of citizens, guaranteed by the Mexican Constitution, are not subordinated to institutional economic interests.

The Death of Slander

Technology killed slander. Slander, the tort of defamation by spoken word, dates back to the ecclesiastical law of the Middle Ages and its determination that damning someone’s reputation in the village square was worthy of pecuniary damage. Communication in the Twitter Age has torn asunder the traditional notions of person- to-person communication. Texting, tweeting and other new channels of personal exchange have led one of our oldest torts to its historic demise. At common law, slander was reserved for defamation by speech; libel was actionable for the printed word. This distinction between libel and slander, however, rests on a historical reality that is no longer accurate. Originally, permanence and breadth of dissemination always coincided. Slander carried only as far as one's voice. Because of slander’s presumed evanescence, common law required plaintiffs to plead special damages - proof of economic harm in order to recover for slander the advent of broadcast technology, with its ability to amplify the spoken word challenged the traditional division of defamation and forced courts and legislatures to reconsider old classifications. Jurisdictions split in their decision to characterize broadcast speech as libel or slander, largely because of divergent views about which aspect of the speech - permanence or breadth of dissemination - was more important. Post-broadcast technology has further complicated the defamation arena leaving parties unsure of how to best plead their defamation case. In the past decade technology has again changed the way we communicate. The digital communication revolution has created instances of wide-spread dissemination through quick, non-reflective and often passing statements. This past year for example, Wael Ghonim’s tweet to join him in an Egyptian village square lead to the downfall of Egypt’s political powers. His fleeting comments to those willing to listen caused an entire nation to fall. This article considers how courts should rule when these tweets, or texts, not quite printed, not quite spoken, are defamatory. This Article argues that the advent of texting, tweeting and other forms of digital communication, which I call technospeech, renders the medieval tort of slander irrelevant in today’s technological world. The article provides new support for the contention that courts and legislatures should treat libel and slander uniformly and should abolish the archaic requirement of proof of special damages, a burden traditionally reserved for the spoken word. Maintaining slander in the Twitter Age, with its requirement of proof of economic harm, vitiates the common law purpose of defamation. Treating all defamation similarly promotes fairness for plaintiffs seeking to rehabilitate their damaged reputation and provides predictability to those bringing defamation claims. A thoughtful and orderly treatment of technospeech mandates that courts and legislatures put the proverbial final nail in the coffin of slander.

The Elastic Typicality Deep Inside the Prism of the Non-Pecuniary Damage

This article concerns the Italian element of the “tipicita” of non-pecuniary damage (used to limit the non pecuniary damages payable by those who are not) and the thesis argues that today, in the context of a European Italy, (especially after the Treaty of Lisbon and so after the Nizza Charter of the fundamental rights of the EU) the limitation that seems to have been introduced by the case law in the Italian system of civil liability is not a true problem but rather a useful tool designed to achieve the full protection of the person and so the full compensation of the damages occurred. Under this perspective the excluding element of “tipicita” has not functions of limitation but rather only illustrative and explanatory. Otherwise it should be recognized that the Italian system is contradictory with himself which, on the one hand, demands the fullness of the compensation of the losses and, on the other, limits this full compensation principle.

Culpa in contrahendo - metodološki ogled

Application of generally accepted categories, such as the category of contracts, to facts like negotiations, shows that negotiations can also be recognised as a contract. This is not the contract being negotiated, but a contract to negotiate, i.e. a contract deriving obligations to: 1) give a statement reacting to a statement received or provided in an inappropriate form; and 2) an obligation to restrain from causing damage to one's negotiator. Agreement of wills on negotiations is reached, as in other contracts, in one of the ways recognised by law as a manner of giving statements of will (orally, in written forms or conclusively). Without an agreement of wills, persons cannot act in negotiations, so a unilateral statement fulfilling the conditions to be even qualified as an offer, will not constitute commencement of negotiations if the other side does not state its will accepting to negotiate. Liability for damages incurred during negotiations is a contractual liability, unless it was incurred as a consequence of an intent, and if that is the case, it is a liability in tort. Damages for which the liability is established can be pecuniary of non-pecuniary and within pecuniary damages - real damages or ceased gain. There are also two specific forms of damages - damages in the form of the so-called negative contractual interest and damages in the form or the so-called positive contractual interest. A negative contractual interest is a form of real damages, but one caused by an act of the damaged negotiator him or herself, meaning that it should be distinguished from damages caused by an act of the other negotiator causing damages. A positive contractual interest is a form of ceased gain, namely due to loss of benefits from another possible contract, not the same as the one negotiated. Analysis has shown that the one who gave an offer cannot be liable for ceased gain, not for positive or negative contractual interest. On the other hand, liability for ceased gain, as well as for positive contractual interest, can be caused only from the moment the offer was given and exclusively lays upon the addressee of the offer, not the offerer. The article also aimed to demonstrate that application of the method guarantees the correct conclusion. By selecting characteristic attitudes on liability for negotiations, application of the method shows that it can be a guarantee of correct results. The correctness relates to consistency of position, here on liability for negotiations, as well as equity and fairness of the solution. The method applied is the method of category analysis, i.e. subsuming the facts under categories which are undisputed and do not depend on the will of the legislator, i.e. the legal system. The legislator can regulate something opposite to the results which are methodologically guarantees as correct, but that does not dispute the correctness of results. On the contrary, it can be expected that this kind of legislative violence would have negative effects in the reality, which cannot be justified. This was only an experiment aimed to investigate the possibilities for methodology to guarantee the correctness of results. If it is shown that no mistakes were made, the method can be developed and applied to other legal issues, which would offer correct solutions to the legislator and the practitioners. A side result is the explanation of the category of liability for negotiations, as well as rules for application of norms for liability for negotiations.

Time Valuation as an Alternative to Lost Enjoyment of Life in Determining Wrongful Death Damages

In a wrongful death case1 the task of the jury, if liability is found, is to award those pecuniary and non-pecuniary damages to the decedent’s survivor(s) that would make them whole. Steven Shavell (2004) defines pecuniary and non-pecuniary losses as follows: Pecuniary losses are those that either are monetary or are losses of goods that can be purchased in markets, in which case the measure of the losses comprises the replacement costs. Non-pecuniary losses correspond to the losses in utility suffered when irreplaceable things have been destroyed, such as family portraits or other unique objects. Making the survivors of a decedent whole, of course, is impossible and, in practice, testimony by a forensic economist on wrongful death damages is usually limited to calculations of lost earnings support and household work services the decedent could have provided survivors. There are other compensable pecuniary damages suffered by survivors of a decedent such as the advice, counsel, instruction, supervision, and care a decedent may have provided survivors for which a replacement cost might be calculated. Finally there are the usual non-pecuniary losses of pure companionship, consortia, love, affection, the loss of the enjoyment of the decedent’s life and bereavement suffered by survivors which are usually categorized as intangibles and left to a jury to decide or are prescribed by statute. The fundamental difference between pecuniary and non-pecuniary damages is that pecuniary damages are associated with a productive use of time (such as work, offering advice and counsel, or giving care, support, or assistance) while non-pecuniary damages derive from the pure utility of relationships alone. Schwartz and Thornton (1989) suggest that economists should approach damages from a utility base which would incorporate both the tangible (pecuniary) and intangible (non-pecuniary) losses suffered by survivors of a decedent. Such a holistic approach to damages is beyond the capacity of traditional means of calculating wrongful death damages by economists. A number of states, over the past two decades, have attempted to

Hedonic Damages – One More Time: A Symposium

On January 5, 2008, the National Association of Forensic Economics (NAFE) sponsored its third symposium on “hedonic damages,” this time entitled “Hedonic Damages – One More Time.” The first symposium on hedonic damages was presented at the December 1989 Allied Social Sciences meetings in Atlanta, Georgia with the title “Hedonic Damages and the Value of Life.” Papers from that session by W. Kip Viscusi, Ted R. Miller, Stan V. Smith, and William T. Dickens were published in Volume 3, No. 3 of this journal (1990). The second symposium on hedonic damages was presented at the January 2000 Allied Social Sciences meetings in Boston, Massachusetts with the title “Hedonic Damages Ten Years Later.” Papers from that session by W. Kip Viscusi, J. Paul Leigh and Jorge A. Garcia, Ted R. Miller, Stan V. Smith and Thomas R. Ireland, along with an introduction by Peter Marks and Thomas R. Ireland were published in Volume 13, No. 2 of this journal (2000). W. Kip Viscusi and Ted R. Miller returned as presenters for a third time at the January, 2008 symposium, along with Brian McDonald and John O. Ward. Thomas Ireland acted as the organizer of the 2008 symposium and Peter Marks served as its chair. The term “hedonic damages” first entered general public consciousness on December 12, 1988 with a front page story in the Wall Street Journal by Paul M Barrett on “The Price of Pleasure,” featuring Stan V. Smith and his successful presentation of hedonic damages testimony in the case of Sherrod v. Berry (1985, 1987, and 1988). Two federal judges in Illinois had commented favorably about Smith’s testimony in the original opinion and one of the appeals decisions before the case was reversed on other grounds in 1988. The NAFE symposium in December of 1989 was designed to explore this interesting new development in the field of forensic economics. As of the 2000 symposium hedonic damages testimony had enjoyed several successes in individual states, but had been rejected by the courts in a number of reported decisions, particularly at the federal level. The threat of Daubert and Frye standards for admission of expert testimony being applied negatively to hedonic damage testimony had become one of the central features in the debate over this concept. As of 2008 hedonic damages testimony had become much more specialized. Because hedonic damages testimony had been rejected in a number of legal decisions, fewer and fewer forensic economists were involved, but Stan Smith, Robert Johnson, Brian McDonald, as well as several other economic experts

Loss of Enjoyment of Life Damages in New Mexico

Since 1994 New Mexico state courts have allowed monetary compensation for the non-pecuniary value of life itself in both personal injury and wrongful death cases. In Romero v. Byers (1994) the New Mexico Supreme Court held that the value of life itself is compensable under the New Mexico Wrongful Death Act (1989) as fair and just compensation. In Sena v. New Mexico State Police (1995) the New Mexico Court of Appeals extended this precedent to personal injury cases: “Consistent with the rule in Romero, we think it is clear that New Mexico permits proof of non- pecuniary damages resulting from the loss of enjoyment of life in tort actions involving permanent injuries.” (471 at 478; 604 at 611) This paper discusses the issue of loss of enjoyment of life damages 1 in New Mexico from the perspective of a forensic economist who has been practicing in New Mexico for over 28 years. The concept and purposes of economic damages in New Mexico are first outlined through the relevant case law, providing the context for the award of loss of enjoyment of life damages. The allowable scope of expert economic testimony on loss of enjoyment of life damages is then discussed for both state district court and the federal court in New Mexico. Finally, typical arguments raised in a motion in limine to exclude expert economic testimony on loss of enjoyment of life damages are outlined along with a response.

Non-Pecuniary Remedies in ICSID Arbitration

ICSID tribunals have almost always granted relief in the form of pecuniary damages. Is this due to a limitation contained in the ICSID Convention? Is it due to a limitation inherent in litigation against sovereign states? Can ICSID tribunals issue injunctions and order specific performance, or are they restricted to granting monetary awards?

Hoge Raad, Judgment of 22 February 2002 – On compensation for psychiatric injury and emotional distress suffered by close relatives

Abstract: The decision of the Hoge Raad was based on the following facts: On 9 April 1992, the Plaintiff allowed her five-year-old daughter to play outside. Whilst playing in the residential area in front of the Plaintiff’s property, the daughter was hit on the head by a taxi-bus reversing illegally. A neighbour saw the incident and immediately informed the Plaintiff who, at this time, was in the house and had not witnessed the accident herself. After notifying the emergency doctor, the Plaintiff then attended the victim who was lying on her stomach with her face towards the ground. At first, the Plaintiff believed there to be a pool of vomit beside her child. As she attempted to turn its head with her hand, however, she realised that the “vomit” was in fact her child’s brain and that, at this point, her hand was completely inside its skull. In consequence, the Plaintiff suffered severe psychological trauma. Despite undergoing therapy a number of times, the Plaintiff remains in a stagnating process of grief. She suffers serious depressions and a post-traumatic disorder which causes her to relive the confrontation with her dead daughter time and again. The Plaintiff demanded compensation from the insurance company of the taxi bus driver, who had since been convicted in criminal proceedings. She claimed both pecuniary damages (costs of therapy, medical expenses and legal costs) amounting to 5,800 gilders (approx. 2,600 euros) and appropriate compensation for non-pecuniary loss amounting to 100,000 gilders (approx. 45,000 euros). The claim was dismissed by the Rechtbank Alkmaar. By contrast, the Gerechtshof Amsterdam admitted the claim in principle but set damages for pain and suffering at 30,000 gilders (approx. 13,500 euros). The Hoge Raad upheld this judgment dismissing the appeals both of the Plaintiff (i.e. the refusal to award damages for pain and suffering amounting to 70,000 gilders) and of the Defendant. In its judgment, the court drew a distinction between the damages (pecuniary and non-pecuniary) granted in respect of the psychiatric injury inflicted on the plaintiff by her direct perception of the situation described, and rejected so-called “emotional distress” (also called “injury arising from close ties of love and affection”), insofar as it was “merely” grief following the victim”s death. With regard to pecuniary compensation (5,800 gilders) and non-pecuniary compensation for psychiatric injury (30,000 gilders), the Court held that this loss had to be compensated in its entirety according to the law on delict (cf. Article 6:162 BW). As to whether psychiatric injury was recoverable, the Court said the following: “If a person causes a serious traffic accident by infringing safety or road traffic regulations then that person acts unlawfully not only towards the person who, in consequence, (1) is killed or injured but also towards the person who, (2) having witnessed the accident or directly perceived its aftermath, (3) suffers a violent emotional shock which, in turn, leads to psychological impairment. This can mainly occur in cases where (4) there are close ties of love and affection with the person killed or injured in the accident.” The court took the view that non-pecuniary loss in the form of psychiatric injury was recoverable in accordance with Article 6:106 (1) (b) BW, which, inter alia, allows compensation for pain and suffering in respect of physical injury by reference to the fact that the plaintiff displays symptoms of a recognised psychiatric illness. Compensation for pain and suffering in respect of non-pecuniary psychiatric injury was fixed at the 30,000 gilders awarded, as seemed fair and reasonable. By contrast, the Court did not award damages for pain and suffering in respect of loss in the form of emotional distress, i.e. for the Plaintiff”s grief over the loss of her daughter. In this respect, the Hoge Raad stated that Article 6:108 BW conclusively determined who the

Lustig-Prean and Beckett v. The United Kingdom (Article 41) Smit and Grady v. the United Kingdom (Article 41)

In the area of non-pecuniary damages, the “especially grave” interferences with the private lives of the applicants were profoundly destabilising events in their lives which had and continued to have a significant emotional and psychological impact on each of them, justifying a significant award of non-pecuniary damages. In the area of pecuniary damages, a judgment in which the Court finds a violation of the Convention imposes on the respondent State a legal obligation to make reparation for its consequences in such a way as to restore as far as possible the situation existing before the breach. The question to be decided was the level of just satisfaction, in respect of both past and future pecuniary loss, which it was necessary to award to each applicant.

Treaties—Warsaw Convention—international air transportation—recovery of damages—loss of society—death in air crash—Death on the High Seas Act—maritime and admiralty law: Zicherman v. Korean Air Lines. 116 S.Ct. 629

Petitioners Marjorie Zicherman and Muriel Mahalek sought damages from respondent Korean Air Lines (KAL) under the Warsaw Convention governing international air transport, for loss of society of a family member killed aboard a commercial airliner downed by a Soviet warplane. In a cross-petition, KAL requested a determination that the Death on the High Seas Act (DOHSA) prescribed damages recoverable under the Convention and did not allow damages to be recovered for loss of society. The Supreme Court (per Scalia, J.) affirmed in part and remanded in part and held unanimously that the Convention did not permit family members to recover loss-of-society damages because (1) Article 17 of the Convention provides for carrier liability in passenger deaths or injuries but leaves the crucial definition of legally cognizable harm to be determined by domestic courts; (2) in the United States, DOHSA prescribes the substantive law covering air crashes on the high seas; and (3) DOHSA permits only pecuniary damages.

Lingens Case

Human rights — Freedom of expression — Freedom of opinion — Right to impart ideas — Freedom of the press — Journalist convicted of defamation — Whether necessary to protect reputation of others — Possible conflict between freedom of expression and right to respect for private life — Whether wider limits of criticism acceptable as regards politicians — European Convention on Human Rights, 1950, Article 10Damages — Compensation for breach of treaty obligation — Pecuniary damages — Fine and costs awarded against applicant in domestic proceedings — Legal costs and expenses of applicant before domestic courts and Convention institutions — Whether reasonable as to quantum — European Convention on Human Rights, Article 50

Bönisch Case

184Human rights — Fair trial — Constituent elements — Right to a fair hearing — Equality of arms — Equal treatment of witnesses for prosecution and defence — European Convention on Human Rights, 1950, Article 6International tribunals — Procedure — European Court of Human Rights — Jurisdiction to entertain matter not raised before European Commission of Human Rights — Costs — Whether unreasonably high fees an impediment to protection of human rightsDamages — Human rights violation — Pecuniary damage — Loss of opportunities — Non-pecuniary damage — Whether finding of violation and pardon adequate compensation — Legal costs and expenses — Whether reasonable — Equitable basis of assessment — European Convention on Human Rights, 1950, Article 50

Sramek Case

1Human rights — Fair trial — Right to a hearing by an independent and impartial tribunal — Regional Real Property Transactions Authority of the Austrian Tyrol — Decision on appeal on the approval of a contract for the purchase of land — Whether an independent and impartial tribunal established by law — Length of members’ term of office and possibility of removal — Procedure and appointment of members — Composition — Rapporteur a civil servant subordinate to one of the parties — European Convention on Human Rights, 1950, Article 6(1)Damages — Human rights violation — Pecuniary damage — Legal costs and expenses — European Convention on Human Rights, 1950, Article 50