Once one gets beyond the concrete medical bills and replacement costs for lost items chargeable in a tort action, assessing damages can be profoundly difficult. The core idea of tort is to make a deserving plaintiff whole again, and money is the vehicle by which to do it.
Lost wages might be clear in some cases, and speculative in others. What amount to account for a lifetime’s labor for a ten-year-old girl who has been wrongfully killed? A one-day-old baby? Should the answer vary depending on the existing circumstances of the plaintiff? If the same automobile accident on a sidewalk injures both a high-income patio diner and the low-income waiter serving her meal, depriving each of a livelihood, is the customer due more money to be restored to her prior position than the waiter?
Beyond lost income, if someone’s wrong has caused pain and suffering, that’s a negative to be offset by the positive of compensation. But how should a jury assess pain and suffering? Sometimes this can be thought of as a question of evidence: what may be brought before the jury as fact by one party, subject, as always, to challenge by the other? At other times it may fall to jury instructions, or to what a lawyer may be permitted to say in opening or closing argument.
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