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50 Ins. Counsel J. 411 (1983)
Payment for Pain and Suffering through History

handle is hein.journals/defcon50 and id is 413 raw text is: Payment For Pain And Suffering Through History

PAYMENT FOR PAIN AND
SUFFERING THROUGH HISTORY*
JEFFREY O'CONNELL AND KEITH CARPENTER
Charlottesville, Virginia

-[ ORERUNNERS of payment for pain
and suffering as an element of dam-
ages can be traced as far back as ancient
Rome. From the XlI Tables, Rome's first
written law, evolved the Roman law of
delicts, the equivalent of our law of torts.
Two delicts concerned injuries to persons.
Iniuria encompassed injuries to free per-
sons, and damnurn iniuria datum con-
cerned   damage   to  property, including
slaves.
The crucial element of iniuria was the
intention of the injurer. The plaintiff had
to prove that the injurer was motivated by
ill will and that the plaintiff himself was
actually offended by the wrong done to
him. Because the action rested on out-
raged feeling, not on economic loss,' a
plaintiff could be compensated for pain
or distress of mind or body'2 as well as
pecuniary expenses.
For damnum    iniuria datum, the plain-
tiff had only to prove that the injurer was
negligent. Because the action was original-
ly intended for injuries to all forms of
property, the plaintiff could only recover
actual pecuniary loss, such as medical ex-
penses, and not for psychic loss. Over time,
the damnum iniuria datum statute was ex-
tended to apply to free men as well as
slaves, but still only providing compensa-
tion for pecuniary loss stemming from neg-
ligently caused injuries to any person.
Roman law, then, developed to the point
of compensating for pain and suffering
when the injury was intentionally inflicted
and compensating for pecuniary loss alone
when the injury resulted from negligence.'
*This article updates a more complete history of
payment for pain and suffering in O'Connell &
Bailey, The History of Payment for Pain & Suffer.
ing, in J. O'CONNELL S, R. SIMON, PAYMENT FOR
PAIN & SUFFERING: WHO WANTS WHAT WHEN &
WHY 83 app. V (1972), reprinted in 1972 U. ILL.
L. F. 83.
1W. BUCKLAND, A TEXTBOOK OF ROMAN LAW 591
(P. Stein 3d ed. 1963).
2M. DE VILLIERS, THE ROMANS AND ROMAN-DUTCH
LAW OF INJURIES 182 (1889).
31d. at 183.

JEFFREY O'CONNELL is the
John Allen Love Professor
of Law at the University
of Virginia. He received
his A.B. from Dartmouth
College, in 1951, and his
J.D. from Harvard Uni-
versity, in 1954.
KEITH CARPENTER received
his B.A, from Columbia
University. He graduated
summa cur laude and is
a member of Phi Beta
Kappa. Currently a stu-
dent at University of Vir-
ginia Law School, he plans
to graduate in May, 1984.
This summer, he will be
working for the Washing-
ton, D.C., law   firm  of
Heron, Burehette and
Ruckert.

Forerunners of pain and suffering com-
pensation are also found in early English
law, which allowed compensation for cer-
tain kinds of nonpecuniary loss.4 Laws en-
acted in the late seventh century, for exam-
ple, set out the compensation to be paid to
persons who were slandered or verbally
abused: If one man call another perjurer,
in another's [home] or shamefully bespeak
him with abusive words, let him pay a shill-
ing to him who owns the . . . [home], and
VI shillings to him to whom he said the
words, and XII shillings to the King.5
Later, another nonpecuniary loss or in-
jury, shame, became a common element of
damages:
Shame was keenly felt. In almost every ac-
tion before an English local court of the
13th century the plaintiff will claim com-
4Perhaps based on the influence of Roman law
on English law which is commonly underestimated.
5B. THORPE, ANCILNT LAWS AND INsTrruTIONS OF
ENGLAND 33 (1840).

Page 411

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