How Much is Enough? Full Compensation and the Standardisation of Non-Pecuniary Damages

Abstract The tort or civil liability system plays an important role in the global economic landscape, affecting the lives of individuals and organisations by requiring transfers of money to injured persons as damages. Rooted in the principle of full compensation, the objective is to make injured persons whole again. However, quantifying non-pecuniary damages, the aim of which is the compensation of non-economic losses, presents significant challenges due to their lack of market prices. Consequently, various approaches have emerged, proposing different degrees of admixture of formalised guidance for adjudicators and room for discretion. Drawing also on qualitative interviews with adjudicators from Belgium, Ireland, Italy, and Sweden, this article argues for the standardisation of non-pecuniary damages, contending that they can promote horizontal and vertical equity in awards more effectively than more discretionary approaches. Potential objections to the standardisation of damages that may question its desirability (regarding human dignity, judicial independence, and the role of lobbies) are also discussed. Finally, the argument is made that, even if it became technically possible to accurately measure the actual amount of money that is needed to make an individual injured person feel that they have been made whole again, the standardisation of damages would still be preferable over perfect personalisation for principled reasons related to the rule of law and human dignity.