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The question of whether a tortfeasor should compensate non-pecuniary losses is not answered unambiguously in Law and Economics. On the one hand, to provide tortfeasors incentives for deterrence, damages should fully reflect the extent of immaterial loss. On the other hand, it is argued that to achieve optimal loss spreading, the victim should not receive damages for non-pecuniary losses if he would not self-insure against such losses. In our view, however, such insurance decisions cannot provide guidance on whether non-pecuniary losses should be included in tort damages nor on how to assess them. We argue that ‘ex antedetermined damages’, which are based on the resources a victim would have been willing to spend to avoid the non-pecuniary loss, form the correct basis for pain and suffering damages.

Non-Pecuniary Losses in the Economic Analysis of Torts: a Plea for Ex Ante Determined Damages