Beginning in the mid-twentieth century, one can identify a continuing chorus of skeptics on the prospect of awarding damages for intangible loss in cases of accidental harm. The skeptics range from a law and economics scholarship that puzzles over the question of why prospective injury victims should be, in effect, forced to purchase a form of insurance (pain and suffering) that has not been sufficiently valued to be offered in the market, to a leftist critique that objects to the commodification of misfortune. Indeed, it recently has been argued that from any widely-accepted perspective on the goals of tort law – compensation, deterrence, corrective justice and fairness, administrative cost concerns, and the like – pain and suffering recovery ought to be eliminated and recovery should be granted exclusively for economic loss suffered as a consequence of personal injury.
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.