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Sebok, A J --- "Using comparative torts materials to teach first-year torts" [2008] LegEdDig 35; (2008) 16(3) Legal Education Digest 18


Using comparative torts materials to teach first-year torts

A J Sebok

57 J Legal Educ 4, 2007, pp 562–78

The damages section of a torts course is a necessary part of every student’s first year, since, as Richard Epstein writes, ‘proof of damages is an essential element of plaintiff’s case in most civil litigation. When the liability is clear, both sides will judge their success by the size of the verdict.’ Epstein is clearly correct when he says that the most elegant and well-argued theory of liability is worth very little if the question of damages is ignored and a deserving plaintiff is awarded a fraction of what he or she should have received. This insight should put every law student on alert that he or she must think about damages at every stage of a case, and not just as an afterthought.

Epstein’s comment also highlights potential pitfalls in damages pedagogy. First, although all damages must be proven, the focus of a torts class on damages should not be on technical issues better handled by an evidence class. Students need to understand the role of experts in developing admissible evidence of proof of loss in a case involving loss of income or hedonic damages, for example. A damages class that focused on the problem of proof to the exclusion of a discussion of how damages categories are defined would miss an opportunity to review some basic concepts of tort law.

The question of how the presentation of evidence and witnesses influences the size of a damage award is a fascinating one, which law students ought to consider from both a practical and theoretical point of view. But a class on damages should not be devoted to techniques designed to generate the largest or smallest award possible, unless the arguments employed have some relationship to the more general concepts of tort law.

Materials on damages can be tricky to teach. Simply listing a catalogue of rules — which States keep the collateral source rule or which States cap damages for pain and suffering — invites rote memorisation, which I would think is the opposite of what most professors hope to achieve when they teach topics such as proximate cause or the concept of intent in battery. The real challenge is to find a way to use the central, practical problem posed by a demand for damages to teach concepts that play an important role in other parts of the torts syllabus.

Comparative materials judiciously paired with domestic cases and materials on damages can help bring out these concepts. There are many themes that can be illuminated by the use of comparative materials; here I will suggest three.

In truth, rules about damages are never contained only in the chapter on damages. For example, every torts casebook has to deal with the question of the negligent infliction of emotional distress (‘NIED’); the main question for casebook authors is whether to fold it into the main chapters on duty or whether to teach it in a section dedicated to emotional distress arising from intentional and negligent acts. Wherever these cases are placed, they pose the same problem to the students — the definition of the grounds of liability for conduct that causes emotional distress. In the context of those cases in which the defendant was negligent, this question can be framed as one of duty. It is easy to overlook this point because the issue of duty in the context of foreseeable physical injury is equally easy to overlook in most cases. But, the question of pure negligent infliction of emotional distress is hard to discuss in class without grappling early on with the duty question: was the defendant obligated to be vigilant of the possibility of emotionally harming the plaintiff in this way?

The answer to the duty question in NIED cases is not answered by simply extending the defendant’s duty to include all foreseeable emotional distress proximately caused by the defendant’s unreasonable conduct. Courts have had to draw lines, whether by adopting a zone of danger rule, a bystander rule, or a physical injury rule. From a pedagogical perspective, the problem of arbitrary line-drawing provides wonderful teaching opportunities as students confront judges who argue that ‘arbitrary lines [must] limit the class of potential plaintiffs if emotional injury absent physical harm is to continue to be a recoverable item of damages in a negligence action.’ Some professors may go no further than to use damages to illustrate the limits of legal analysis and the inevitability of raw politics in the evolution of tort doctrine. Nonetheless, I suspect that there are professors, like myself, who believe that, notwithstanding the inevitable penumbra of ad hoc line-drawing that attends this area of tort law, there are tort concepts—sometimes competing, sometimes complementary—that drive judges to draw the lines where they do. The question is how to bring these concepts out in teaching cases like Dillon or Buckley.

Using comparative materials can help students see something that is easily missed. Emotional distress is conceptualised under what John Goldberg and Ben Zipursky call the ‘equivalence-of- harms’ thesis (or the ‘equivalence’ thesis): ‘It asserts that, to the victim who experiences the harm, the type of harm — as opposed to its magnitude or severity — is irrelevant.’ This thesis reflects the intuition that ‘there is no essential difference between traumatic physical injury, illness, or psychic distress. Simply put, harm is harm is harm.’ But as every torts professor knows, the intuition is honoured more in its breach than its observance.

There are numerous reasons why a civil liability system might depart from the equivalence thesis, and one can imagine that a professor might be hard-pressed to thoroughly present those reasons drawn from domestic cases. Most standard explanations, such as the need to guard against fraud or the need to balance the costs of the negligence system against its benefits, whether they be in the form of corrective justice or deterrence, can be presented analytically, although they would need to be supported by empirical evidence, not anecdote. An explanation based on the idea that certain relationships or interests ought to be protected through negligence law is hard to argue for in the abstract. What, if anything, is it about the relationship of marriage (or its partnership equivalent) that privileges the emotional distress compensated under loss of consortium compared to the emotional distress that foreseeably occurs when a son or daughter is injured or killed? Furthermore, consider the sharp disagreement in the United States over the position adopted in Buckley. Is that because the interest in not being exposed to the risk of a serious disease is itself worth protecting or because the relationship between the defendant and plaintiff in these cases imposes special duties of care?

Comparison with various European approaches to emotional distress reveals an interesting set of similarities. First, as in the United States, European tort systems (including British doctrines) have experienced a widening of the grounds under which damages for emotional distress can be recovered.

The great difference between European systems (other than Britain) and American tort law in the matter of emotional distress is found not so much in the formal structure of the menu of damages offered to victims, but in the reasoning that lay behind that menu and, of course, in the amount of money awarded.

In contrast to the American style of common-law reasoning, most European tort systems, because they are code-based, approach the questions discussed above in a very different way. Damages for emotional distress are generally not available unless specified in the relevant code, and often the relevant code sections are quite restrictive. But the distinction between sources of law can easily be overstated, since students can easily see that the judicial elaboration of code sections over time looks a lot like common law adjudication. The code sections are not highly specific laundry lists of legislative choices, but general principles made concrete by judicial interpretation in specific cases. The un- derlying principles contained in the code provisions can be contrasted with principles drawn out from the American case-law.

For example, the German code is based on the idea that private law damages should ideally restore to the plaintiff what she had lost (Naturalrestitution). This explains the original structure of the German code, where, from a formal perspective, compensation for non-pecuniary losses was prohibited unless provided by statute. If we ignore, for the moment, the ultimate reality of non- pecuniary damages in German law — that ‘the technical relation of rule and exception is virtually converted into its opposite’ — we see that the German doctrine of ‘compensation as restitution’ that developed was a response to the problem of damages from pain and suffering that looks different from the American one. The use of the term ‘restitution’ alerts us to the fact that German courts begin, at a theoretical level, strongly opposed to the equivalence thesis: ‘The primary method of compensation is restitution in kind .... Restitution in natura (Naturalrestitution) is thought to protect best the victim’s rights ... .’

This article is not the appropriate place to analyse the idea of non-pecuniary damages as satisfaction for civil wrongs. Instead, it should suffice to point out that the idea of non-pecuniary damages as satisfaction can be raised with first-year torts students to illustrate alternatives to the equivalence thesis. The highest German civil court suggested that the obligation of securing restitution for non- pecuniary loss is independent of the defendant’s actual ability to secure that goal, and the courts fulfilled their duty by basing their decisions on the former, regardless of the latter. The court noted that the fact that restitution is a ground for creating in the defendant an obligation ‘to make good’ and that ‘non-pecuniary losses concern “assets not to be valued in money terms”’ does not mean that all efforts to make good civil wrongs through tort law are doomed to failure, just that success cannot be measured in terms of the ‘amenities and comforts’ purchased by the defendant’s payment. Instead, in situations where non-pecuniary damages have been inflicted, ‘the function of making good underlines that the injurious act has created a certain personal relationship between the tortfeasor and the victim.’ There is a lot here for students to think about in the context of the cases they have read on pain and suffering damages in American law. What is the connection between the defendant’s conduct and circumstances and the victim’s non-pecuniary loss (or the contours of the non-pecuniary damages awarded)? Why, if actual restitution is not possible in the case of non-pecuniary harm, does the focus shift towards using money as a proxy for achieving a rebalancing of the normative relationship between the defendant and the victim? The German linkage between damages for pain and suffering (Schmerzensgeld) and the function of satisfaction avoids the problem of treating all injuries as equivalent only by treating all non-pecuniary losses as rights violations. On the other hand, the language of private rights is not completely foreign to American tort theory, and it certainly was a dominant way of speaking about common law tort law in Blackstone’s time.

The German concept of satisfaction damages is one conceptual response to explain the role money damages play in compensation for of non-pecuniary injuries. In Italy, as in Germany, there had been a strict separation between pecuniary loss, known as patrimonial damages (danni patrimoniali) and non-pecuniary loss, known as moral damages (danno morale). As in Germany, this demarcation was based in part on the functional distinction between damages that could be measured economically and those that could not. Like Germany, the courts’ decision to allow victims to receive compensation for damages in the latter category was associated with certain characteristics of the defendant’s conduct. Under article 2059 c.c., originally moral damages could be demanded only if the defendant’s injurious conduct could be linked to a crime. However, due to a gradual expansion of the circumstances under which they are awarded, moral damages are now typically translated as ‘pain and suffering’ and are available for torts that are not necessarily crimes. Like German satisfaction damages, the amount that a defendant must pay is scaled according to the defendant’s culpability and the financial circumstances of both the defendant and the victim.

However, unlike the German system, in Italy most of the losses that Americans would think of as non-pecuniary are not channelled through the category of moral damages. Italian courts have moved towards the idea that many non-pecuniary interests have standard or objective value independent of the subjective value of that interest to the victim and thus ought to be categorised under patrimonial damages. While out-of-pocket losses are still compensated under patrimonial damages, so are losses of certain aspects of the victim’s health that may have no effect on her earning capacity or financial circumstances in general.

This new form of patrimonial damage, often referred to as danno biologico or danno alla salute, resembles the sort of damages awarded for non-pecuniary losses associated with a physical injury, and have been compared to the British concept of ‘loss of amenities of life’ or hedonic damages.

Comparative torts scholars have noted that the German and Italian approaches to non-pecuniary damages have begun to drift apart as they have expanded the possibility of recovery within their respective systems. The German courts held that damages for non-pecuniary losses had a ‘double function,’ which included the idea that money could be used to purchase substitute pleasures and thus remain faithful to the formal concept of in-kind restitution. The Italians and other European nations have rejected the ‘functional’ role of monetary compensation for non-pecuniary loss without rejecting the rationale of in-kind restitution.

Given the emphasis in American casebooks on the challenge of proving damages in the context of an individual’s own losses, the various European approaches to pain and suffering provide a useful contrast. European explanations do not obviously undercut or criticise American doctrine, since, as this section illustrates, non-pecuniary damages are expanding just as they have in the United States and are often available in many of the same circumstances as in the United States. Instead, the European approaches offer competing rationales for similar doctrinal outcomes, and these approaches can be used to help deepen American students’ critical understanding of the rationales behind our own damages law.

In almost no Western European system are damages for pain and suffering set by the legislature. European judges use a variety of methods to determine damages other than the presentation of testimony of trial.

In England courts refer to ‘brackets’ or ranges of amounts for different headings of damages. These brackets are set by an independent body called the Judicial Studies Board. It is up to the individual trial judge and the courts of appeals to place the victims’ injuries within the range of the appropriate bracket. In Germany, there is no official body setting out brackets or ranges, but private groups such as ADAC, the German equivalent of the American Automobile Association, publish biannual summaries (Tabellen) of a large number of reported personal injury awards in Germany, with brief summaries of the injuries found by the court and the damages awarded. Both France and Italy have used two methods to achieve standardisation. In both nations courts require parties to present their claims for pain and suffering in terms of a standardised ‘point system.’ The scales used by the parties before the court are based on expert opinions from medical scientists and psychologists and form a standard by which the severity of an impairment can be measured.

It is an interesting question whether these efforts at harmonisation of non-pecuniary damages — which have accelerated in recent years — are a result merely of differences in the organisation of the European courts and features of European civil procedure or whether they are the consequence of certain theoretical commitments being played out as more courts handle an increasing number of non-pecuniary damages claims.

I discussed above the rationales that have been offered in various European tort systems for granting monetary damages under certain conditions. It should be obvious that these ideas fit into the debate among torts scholars over larger themes of tort law.

Finally, discussing damage awards in a comparative context will remind students of the social welfare functions that tort damages perform in the American system. For example, tort damages are often justified in the American context because of their critical role in securing medical care and minimal welfare for the victims of accidents and their families. These basic needs are secured by other social welfare mechanisms in the United Kingdom and Western Europe. Furthermore, damage awards — especially non-pecuniary damages — are viewed as a substitute for legal fees that every successful plaintiff must pay in the United States, given that unlike Europe, ours is a not a ‘loser pays’ system for compensating the lawyers of the winning side, and there is no system of English- style legal aid in this country and no German-style legal insurance. Raising this point helps students appreciate the interrelationship between principles of tort law and the business of tort law — concerns that will affect their clients, if not the students themselves.

The theoretical claims may be persuasive in the preceding section but will not be of much use unless I can describe some practical steps that can be taken to implement the comparative approach I am recommending. There is a wealth of comparative material about European tort doctrine and damages available that would be useful to professors who seek background material, and they might be useable if reproduced as a coursepack.

Ideally, a professor ought to be able to teach much of the comparative materials out of edited cases just as she teaches much of the material for the rest of the semester. The reality is that this is not easy to do. First, while there are resources for translations of European tort decisions in an edited format, few are edited with an eye for use in an introductory torts class. Second, many tort decisions from civilian courts are not written in a style that necessarily lends itself to the sort of Socratic dialogue that many professors can generate with a well-chosen common-law decision.

I hope that I have stressed sufficiently that the only reason for using comparative materials in the first year — in my opinion — is to illuminate domestic tort law, not to send students off onto a mini- enrichment course based on the thinly veiled conviction that comparative law is good in itself. To the extent that I may have gotten teachers of first-year torts engaged in the idea of using comparative torts materials to teach concepts in American tort law, I will view this article as a success.


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