Academic

Essert on Tort Law & Happiness

By Lawrence Solum

Christopher Essert (Queen's University Faculty of Law) has posted Tort Law and Happiness (Queen?s Law Journal, Vol. 36, p. 1, 2010) on SSRN. Here is the abstract:

Tort law awards so-called Hedonic Damages to compensate Plaintiff for any loss of enjoyment of life caused by Defendant?s negligence. Some have argued that Hedonic Damages should be eliminated, based on important surprising data on happiness emerging from experimental psychology research. This Happiness Data shows that people who have suffered even very serious injuries become less happy only temporarily and return to pre-injury levels of happiness after a brief adjustment period. Thus, goes the argument, the Happiness Data illustrates the lack of a normative basis for Hedonic Damages. I argue against this view. Damages in tort law are grounded in the reasons for which defendant?s behaviour is thought to be unreasonable: in Justice Cardozo?s famous words, ?the risk reasonably to be perceived defines the duty to be obeyed.? Plaintiff?s enjoyment of life is one of these reasons and thus should be protected with damages. Drawing on an example of Ernest Weinrib?s I show that Hedonic Damages, like all damages, are best thought of not in terms of all things-considered assessments of advantages and disadvantages, but in terms of Plaintiff?s right to have Defendant take due care with respect to her safety. Thus postaccident rebounds in happiness do not affect Defendant?s liability.

Full post as published by Legal Theory Blog on January 21, 2011 (boomark / email).