LA SOUFFRANCE ET L’INCOMMENSURABILITE

Abstract

In 1978, the Supreme Court in Andrews imposed a ceiling of $100 000 on compensation for the bodily non-pecuniary injury. In contrast, the Supreme Court in Snyder (1998) and Hill (1995) had decided that the ceiling of Andrews does not apply to actions in defamation and moral non-pecuniary damages. Today, this situation still appears to be unjust. How is moral suffering so different from the bodily suffering? This article starts from this unfairness to explore our intuition that suffering is incommensurable. The objective is to determine how the law could better understand suffering and compensate it more adequately and fairly. Considering the now-inevitable confusion in the methods of assessment of non-pecuniary injury, a better comprehension of the choices of incommensurability and commensurability permits us to identify a method of assessment of indemnities which is fair, consistent and predictable. The author calls this method the “personalizedconceptual approach with functional reasonableness”.