Assessing the incalculable damages of pain and suffering

Mohd Fuad, Husaini and Kamaliah, Salleh (2020) Assessing the incalculable damages of pain and suffering. In: International Conference on Law and Globalisation 2020, 07-08 Nov 2020.

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Abstract

The damages or remedial regime for personal injury under tort compensation is diverse and complex, in the sense that there are many branches or heads that are claimable or unclaimable and each of those heads has their own methods of computing the damages. This paper focusses on one of the heads of damages claimable in a personal injury claim; the general damages for pain and suffering. The conventional view of the tort remedial regime postulates to make the victim of a wrong whole by providing him with the compensatory damages necessary for redirecting him, economically if not physically, from his post-wrong position back to the position he occupied in the pre-wrong status quo. However, strict application of the theory in context or practice seems implausible or misconceived, as it is almost impossible to obtain or gauge exact measurement for non-pecuniary or future losses. For instance, the loss of a limb may never be completely substituted by any monetary compensation or replaced by artificial limbs as compared to damage to movable properties, which can either be replaced or repaired (but not any sentimental values attached to the property). There may be less complication in the assessment of damages if losses could consistently and constantly be calculated in arithmetical certainty. However, assessment of general damages which are non-pecuniary damages is usually based on judicial discretion short of divine revelation in determining the appropriate amount for the pain and suffering. In tort, the highest limit of damages is the whole extent of loss sustained by the claimant. Thus, damages should not exceed the 'loss', nor should it be less than the 'loss', which makes quantifying the damages an arduous process capped limited by human frugality and ability. This paper hypothesises that there is currently no applied mechanism which can reliably establish a consistent or standard rate for a particular loss, i.e. a specific item of pain and suffering and loss of amenities. There is a presupposition of law that each item of pain and suffering and loss of amenities are distinct and unique, and thus, the judges have the unfettered discretion to determine the rate of loss based on the distinct individual cases characteristics.

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