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Intentional torts like assault and outrage (a.k.a. infliction of emotional distress), or for that matter, dignitary torts (e.g., invasion of privacy, or alienation of affection) don't have readily measurable damages. (Except perhaps what a defendant can contrive as the costs of therapy and medication to address the psychological damage inflicted.)

Are there any broad conventions or theories on how damages should be assessed for such torts? Do precedents weigh heavily, or do damages awarded always come down to what a jury can be convinced is appropriate? Or, if brought in small-claims court (as would be more likely except for the most wealthy or sympathetic plaintiffs), do any jurisdictions have guidelines or precedents that apply?

(How are emotional distress damages quantified? turned up a report on how that particular tort was been compensated in various contexts. I'm interested in whether there is any broad custom or case law that applies across jurisdictions, or if any jurisdiction has more clear guidelines for assessing damages.)

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  • 1. Case law. That report you cite contains a chunk of case law. By state. (I don't think it's limited to California). 2. To apply across jurisdictions, you'll need either a federal case or a SCOTUS ruling. If it's a federal case, it would need to apply to a federal statute (e.g., anti-descrimination). Most of the torts you describe are governed by state law. So, answering this question might be challenging for those reasons. Commented May 27, 2016 at 19:03
  • @Mowzer - Good point, but I don't see anything in that report that claims those awards are precedential. I thought they were just provided as illustrations. Are you saying that state law may address how damages can/should be calculated for these torts? Can you provide an example? I was assuming that since these are generally common-law instead of statutory torts that there would either be a convention or maybe some "model code" that is widely used or referenced (if anything). Commented May 27, 2016 at 21:23

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Are there any broad conventions or theories on how damages should be assessed for such torts?

Not really. Sometimes one discusses how much per day it would take to compensate for it, or how much money it would take to make not experiencing it worth it.

Do precedents weigh heavily, or do damages awarded always come down to what a jury can be convinced is appropriate?

Precedents have essentially no impact. It always comes down to what a jury can be convinced is appropriate.

A jury listens to suggestions from the plaintiff and makes a decision on its own. There is no real guidance. Some states have a cap on the maximum amount that can be awarded for non-economic damages (which generally isn't disclosed to the jury).

Lawsuits for emotional distress damages are almost always brought in a general jurisdiction court with the case presented to a jury. It would be very uncommon for this kind of suit to be brought in small claims court, or to be sought in a bench trial.

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The non-pecuniary losses a claimant suffers are indeed difficult to assess for the reasons you state. The impact will mean different things to different people, depending on their sex, age, hobbies, etc. As you speculate, precedents are particularly important, although this is complicated due to the range of relevant factors listed non-exhaustively above. As such, practising lawyers will often consult specialist texts and guidelines to determine the range of possible damages.

I will now use the example of personal injury (which includes psychiatric injuries) to make this more precise.

Note 1: Everything below relates to a combination of the subjective pain, suffering, and loss of amenity experienced by the claimant. This does not include any objective costs (in line with what your question asks for; these pecuniary damages would be awarded separately from what is discussed below).

Note 2: The principles from below illustrate how non-pecuniary damages are calculated. Similar texts will be used for other types of harm (eg other emotional distress, invasion of privacy, etc.)

Personal injury lawyers refer to practitioner texts (such as Kemp & Kemp: Quantum on Damages) and the Judicial College Guidelines for the Assessment of General Damages in Personal Injury Cases. The former usually contain the facts of thousands of personal injury cases and the damages awarded. The latter contains the usual range of damages awarded for non-pecuniary losses in personal injury cases based on the type of injury and the severity. Of course, I have just used personal injury cases as an illustrative example. Similar texts are available for many other cases.

Using an example, let's say that the victim of a workplace accident ("Bob") has:

  • suffered minor PTSD

  • with treatment costs of £3,000

  • and £5,000 of lost income due to a temporary inability to work.

If his claim is successful, he will be entitled to the combined figure of £8,000 of pecuniary damages plus any non-pecuniary damages. These can be found using the Judicial College Guidelines (10th edition), which suggest he would ordinarily be entitled to an additional £2,600-£5,400 for minor PTSD. However, on more facts, similar cases could be found in Kemp to clarify the exact figure.

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