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Choctaw Maid Farms5/30/2002
ing it was "approving a standard of measurement which, had it been applied in earlier cases, would have led . . . to reduced awards."
After Benham, English courts began awarding nominal, standardized sums for lost expectation of life. Thus, in Gammell v. Wilson, [2 All E.R. 557 (C.A.)(1980)]the court of appeals held that an award of $1,250 (In British Currency) was proper for a decedent's lost expectation of life in all cases, to be changed only to take account of inflation. The court reasoned as follows: This figure has to be a conventional figure. It is important that there should be uniformity. Accordingly, when the question of the amount is raised in this court, we must do our best to give guidance. It is not one of those cases where this court can properly say: "This is a matter for the trial judge. We will not interfere."
The law has since changed in England. In the appeal of Gammell [App. Cas. 27, 74 (1982)] , the House of Lords expressed dissatisfaction with damages for the lost expectation of life and called upon Parliament to take action to clarify the amount of damages that should be awarded in wrongful death cases. In the Administration of Justice Act of 1982, [ch. 53 ยง 1(1)] Parliament responded to this call and abolished damages for lost expectation of life. Andrew J. McClurg, It's a Wonderful Life: The Case for Hedonic Damages in Wrongful Death Cases, 66 Notre Dame L. Rev. 57, 106-09 (1990)(emphasis added & internal footnotes references omitted).
In Rose v. Ford, App. Cas. at 859-62, Lord Roche, though agreeing that hedonic damages were appropriate in that case, expressed his concerns over this new element of damages in a wrongful death action:
Nevertheless, it is this question of the assessment of damages which gives me more anxiety than any other part of the case . . . I am conscious that this discussion leads into paths of abstruse thought and technicalities of law far remote from the practical directions which judges will have to give to themselves and to juries for the purposes of determining questions of amount.
I would add that I confess to some apprehension lest this element of damage may now assume a frequency and prominence in litigation far greater than is warranted in fact, and becoming common form may result in the inflation of damages in undeserving cases . . ..
E. Hedonic Damages as a Measure of the Value of Life.
. If Hailey's hedonic damages were not based on anything he actually experienced, then they must derive from some other basis. Professor McCurley argues that an analysis of hedonic damages based solely on what the decedent experienced prior to death is too limited - - that there should be a damages award for the intrinsic worth of the life lost. See generally McClurg, supra. While I strongly agree that all life has intrinsic worth, I strongly disagree that society is served by attempting to put a dollar value on a life that was not lived, and awarding that money to a third party. That would be totally at odds with the compensatory nature of our tort system.
. My final concern is the highly speculative and subjective nature of assessing damages for the life that cannot be lived. In expressing the inherent subjective nature of hedonic damages, the House of Lords wrote in Rose v. Ford, "for the happy and contented no damages would be adequate; for the man on the point of suicide any damage would be excessive." Rose, App. Cas. at 830. Loss of the pleasures of life can never be properly compensated by money damages. The emotional nature of the loss makes defining and quantifying damages difficult, if not impossible, and may lead to disproportionate awards. Appellate court
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