The expression pain and suffering has been bandied about great deal in recent months in news reports and public forums, in connection with attempts to lower insurance premiums. Various levels of government in Canada and the United States are being encouraged to limit awards for pain and suffering for minor or questionable injuries.
Advocates of the reforms point to the excessive sums that are being paid out for trivial sprains and strains, and how this practice can lead to higher premiums for the public at large.
Opponents of the proposed changes are voicing their concerns that deserving victims will be left without compensation for legitimate suffering, and are convinced that the insurance companies are merely seeking a way to recoup their bad investments at the expense of their customers.
Students of Jewish tradition will feel quite familiar with much of the discourse on the subject. The category of pain and suffering (tza'ar) for personal injury is dealt with in considerable detail in the classic texts of Jewish religious law.
The Talmudic rabbis taught that the obligation to compensate for pain is rooted in the Bible. When the Torah sets out that the perpetrator of an injury must give...eye for eye... burn for burn, wound for wound (Exodus 21:25), they read the each item in the list as a mandate for a different category of monetary compensation.
Thus, in order to explain why burns had to be mentioned separately, rather than subsumed under the broader category of wounds, the rabbis proposed that the expression came to include forms of pain that do not leave visible wounds or scars, such as burns on the sole of the foot. Based on this principle, they extended the rule to require compensation in such cases as, for example, where a person was burdened with a painfully heavy load.
The rabbis were well aware that the intensity of pain can vary from person to person. They noted that people with delicate habits or fragile constitutions might have a lower threshold than sturdier individuals. In the apparent redundancy of the expression a burn for a burn, the Talmud was able to find an authorization to take these individual circumstances into account when calculating the amount of compensation.
Our sages were sensitive to the difficulties involved in placing a monetary value on suffering. Other forms of reimbursement, such as medical expenses, reduction in market value or loss of salary, could be computed in a relatively straightforward manner. But how does one go about determining the appropriate payment for pain?
The Mishnah proposes that an estimate be made of how much money it would take to persuade a person of similar constitution to voluntarily undergo the same degree of pain.
The sages of the Talmud realized that this calculation could be more complicated than it appeared on the surface. For one thing, is anybody so stupid that they would consent to undergo painful injuries or suffering for any amount of money?
(But, of course, those naïve sages lived long before the days of reality television!)
How are we to imagine a case in which the pain and suffering can be isolated from the other effects for which indemnification is being sought, such as depreciation or medical expenses? This was another question that occupied the scholars of the Talmud.
After extensive casuistic argument, and the elimination of some hypothetical possibilities, they arrived at a rather cumbersome (and gruesome) formula: Imagine that a person was going to have his arm amputated by an unchangable royal decree. Now that the loss of the limb is no longer in question, the court can now make a calculation of how much this unfortunate individual would be prepared to shell out for the benefit of being anesthetized during the procedure. This is the sum that may be recovered for pain and suffering.
Jewish law recognizes that humiliation is a special class of suffering that also deserves compensation. The appropriate monetary reparation for this kind of claim was even more difficult to estimate, since there were so many variables that had to be taken into consideration.
In the stratified societies of antiquity, the degree of humiliation would normally fluctuate in accordance with the social standing of the victim. A slap on the face of an aristocrat would presumably result in a more generous award than if the same act were inflicted on a beggar.
If follows from this line of reasoning, that it is more disgraceful to be insulted by one's social inferior than by someone who stands above you in the hierarchy. Accordingly, some rabbis insisted that all these factors must be borne in mind when assessing the compensation due to the victim.
A very different approach was advocated by Rabbi Akiva. He insisted that there are no class distinctions among the Jews. As the progeny of Abraham, Isaac and Jacob, we all enjoy the status of nobility. This fundamental metaphysical truth is not altered in the slightest by the fact that some of us may have fallen on hard times.
Rabbi Akiva's principles were put to the test on one occasion when he ordered a generous award to a woman who had suffered the disgrace of having her head-covering removed in public.
The defendant subsequently devised a stratagem to place the woman in a compromising situation, after which he tried to persuade Rabbi Akiva that a person with so little self-respect was not subject to humiliation.
Rabbi Akiva would have none of this. He argued that a Jewish woman's inborn dignity is fundamental to her identity, and is not diminished by her personal conduct.
In practice, the judges of the Talmudic courts were not always called upon to work out the complex mathematical computations to determine the penalties for pain, suffering or embarrassment. Precedent and custom assigned standard price-tags to specified offenses, such as slapping faces, pulling ears, plucking hair, or spitting.
Because all these penalties were to be paid by the offenders themselves, and not by an insurance company, they usually served as effective deterrents to potential offenders. However, the deterrent value of the payment could be severely diminished if the fine was regarded as too small.
Take for example the case of a certain Hanan, a notorious scoundrel in Talmudic Babylonia.
The belligerent Hanan was once declared guilty of slapping somebody's ear. The normal penalty for this minor offense was half a zuz to cover the humiliation.
True to type, the ruffian had only a single worn-down zuz coin in his purse, and nobody was willing to give him change.
For a rogue like Hanan, the solution was a simple one:
He gave the plaintiff a second slap, and happily paid the full zuz.
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