Martin- ric Racine
asked in the comments to my previous
mini-essay on crime-related damage compensation about how immaterial losses, such as pain and suffering, are given monetary value in court.
In this essay, which is again part of
my essay series on Finnish criminal justice, I will try and sketch an answer. As usual,
I am not a lawyer and this is not legal advice, and this is not an exhaustive treatise on the subject.
Finnish law is very vague about how immaterial damage is compensated. It basically only gives a list of the forms of immaterial loss for which compensation can be ordered by a court. The main categories related to physical injuries are kipu ja s rky (usually translated somewhat inaccurately as pain and suffering) and pysyv haitta (permanent handicap). Kipu refers to the instant pain suffered when the injury is created, and s rky refers to the longer-term but not permanent pain present after the kipu has ended until the injury is healed.
A new act of parliament will amend this at new year, specifying these in greater detail. It amends the existing
Damage Compensation Act by defining a list of things that are to be given special weight when measuring the monetary value of personal damage. For pain and suffering, those things are the type of the injury, the type and duration of medical treatment it required, and how long the pain and suffering lasted or is expected to last. For permanent handicap, however, the list is a little different: the type and extent of the injury, and the age of the injured person at the time of injury. This is basically just writing out the existing legal praxis.
There is currently no specific standard against which the courts compare individual cases. However, since one is desperately needed, the courts generally use a substitute. There is a governmental board whose job is to set a standard monetary valuation for different types of injuries sustained in traffic accidents. That standard is intended to be used by insurance companies, but in practice, courts also use them as a guide when considering injuries caused by criminal acts. In relation to pain and suffering, the standard categorizes injuries as follows:
- Category A (petty injury)
- will heal fully leaving no marks in a week or two, requires no hospitalization, causes at most two weeks’ inability to work – scratched skin, small cut, minor bruises etc.
- Category B1 (minor injury)
- requires no resuscitation nor intensive care, requires up to a week of hospitalization without surgery, causes at most two months’ inability to work, causes only insignificant permanent disability – significant bruising, loss of few teeth, simple bone fractures etc.
- Category B2 (medium injury)
- may require resuscitation but not intensive care, requires one to three weeks of hospitalization, no complications in treatment, no need for reconstructive surgery in later care, causes at most seven months’ inability to work, causes only minor permanent disability – simple fractures of the long bones, fractures of facial bones, etc.
- -Category C1 (major injury)
- requires cardiovascular or pulmonary resuscitation, requires short-term respirator use or tracheostomy, in the case of a limb injury, requires demanding surgery, requires reconstructive surgery in later care, requires up to eight weeks of hospitalization, causes up to eight months of inability to work, causes significant permanent disability – loss of all teeth, complicated bone fractures etc.
- Category C2 (especially major injury)
- requires long-term mechanical respiration or resuscitation, major complications in treatment, requires extensive surgery, requires hospitalization for longer than eight weeks, causes a year of inability to work, causes major permanent disability – loss of limb, significant brain damage, loss of fertility, severe burns etc.
- Category C3 (extraordinary injury)
- extraordinary complications in treatment, long-term hospitalization, causes complete disability, causes helplessness – extreme brain damage causing dementia, loss of both upper limbs or both lower limbs, causes permanent pain, permanent quadriplegia, causes complete blindness
As you can see, all categories are described both by the treatment required and by listing sample injuries. These descriptions are complementary, and not identical. In categories A and B, the treatment-based descriptions are conjunctive (all requirements must apply), and in C, they are disjunctive (at least one must apply). I did not translate the descriptions completely; see
the Finnish original source if you need more detail.
The traffic injury standard currently specifies the following monetary values for each category:
| Category |
Compensation |
| A |
see below |
| B1 |
200–1,000 |
| B2 |
1,000–2,900 |
| C1 |
2,900–7,300 |
| C2 |
7,300–16,700 |
| C3 |
at least 16,700 |
Due to a quirk in the traffic injury ccompensation system, Category A is not compensated in the case of traffic injuries. This does not apply in criminal cases, where Category A is usually taken as “up to 200 ”.
Of course, the specifics of the case will sometimes require departing from this standard in criminal cases (the aggravation in the crime often is taken as a reason to up the monetary damage estimate).
Permanent damage is similarly handled by courts by referring to the standard set for the statutory employee’s accidental injury insurances (see the Finnish sources
1 and
2 for details).
I already mentioned above a new act of parliament. That act, which will enter into force January 1, 2006, creates a new Personal Damage Advisory Board (
henkil vahinkoasiain neuvottelukunta), which will follow legal praxis and give recommendations, much like the above-described standard, which courts and other instances deciding on compensation for personal damage can take as a base standard against which individual cases can be measured. The advisory board’s recommendations are likely to supplant the traffic damage standard described above in the future.
Also, I think I have six months worth of new books to read, combining Christmas with my birthday last month. <boggle>
