Pain and Suffering and Beyond: Some Thoughts on Recovery for Intangible Loss
These persistent qualms seem to establish good grounds for locating pain and suffering damages more precisely on the spectrum of tort claims for redress of intangible loss, and considering whether the reservations about pain and suffering recovery are context-bound to scenarios of accidental harm or have wider applicability. In thinking about pain and suffering from this broader perspective on compensation for intangible loss, I will suggest commonalities that firm up the base for recognizing the legitimacy of pain and suffering recovery. I begin with some thoughts on context internal to the pain and suffering claim in an accidental harm case. Then, I turn to a broader historical overview of intangible loss that leads, in turn, to a look at the present landscape from a wide-angle perspective. Finally, in view of the many byways that intangible loss has taken, I reassess and question the coherence of a "make-whole" foundation for pain and suffering.