In Edward and Joyce Bennett v. David Lembo,⁽¹⁾ decided today by the New Hampshire Supreme Court, the Court squarely addressed for the first time the existence of hedonic or "loss of enjoyment of life" damages under New Hampshire law absent a specific legislative authorization and held that they are available to a plaintiff as a separate component of damages in cases where there has been permanent impairment.

The Court recently addressed the recoverability of hedonic damages in a wrongful death suit in the context of New Hampshire's wrongful death statute.⁽²⁾  Marcotte v. Timberlane/Hampstead School District.⁽³⁾  Based on specific statutory language allowing a jury to consider "the probable duration of life but for the injury," the Court found that the legislature intended to include a loss of life damage element in a wrongful death action and therefore held that a decedent's estate could recover hedonic damages. "If duration of life is to be considered as an element of damages, then its constitutive factors, such as quality of life can also be considered in assessing such damages."⁽⁴⁾  The Marcotte Court specifically declined to determine whether hedonic damages would be recoverable absent such specific legislative authorization.

The trial judge in Bennett had allowed recovery of hedonic damages as part of the award for permanent impairment but not as part of an award for pain and suffering. The Supreme Court analyzed the basis for an award of permanent impairment stating that an award for permanent impairment "compensates the plaintiff for the permanent 'loss resulting from complete or partial disability in health, mind or person'." The Court stated that as permanent impairment damages are intended to compensate a victim for the inability to function as a "whole person, [citations omitted] . . . we agree with those courts that have found damages for loss of enjoyment of life to be a component of permanent impairment." Although there is no specific legislative authorization for hedonic damages in cases where death does not occur, the Court noted that a failure to find such damages compensable would be "inconsistent with the underlying purpose of compensatory damages, which is to make the plaintiff whole again." The Court declined to address the issue of whether an injured plaintiff can obtain a hedonic damage award for a non-permanent impairment injury.

Notes:

1.   97-087 (N.H. October 5, 2000)

2.   N.H. R.S.A. 556:12

3.   143 N.H. 331, (1999)