Thailand Law Journal 2013 Spring Issue 1 Volume 16

In term of injury causing bodily harm, only the four following types of damages can be recovered: the expenses and the damages for total or partial disability to work, for the present as well as for the future⁸, compensation for the third party for loss of the injured party's services⁹, and non-pecuniary damages.¹⁰ The "expenses" is broadly defined and include any expenses that injured party had paid due to the injury. Significantly, the plaintiff normally claims for the medical expenses that have been incurred from the wrongful act, including the medical expenses in the future in the case that continuous medical treatment is needed.¹¹ However, other necessary expenses are claimable such as the expenses for hiring the person taking care of the injured, traveling expenses of care takers.¹² Nevertheless, the Supreme Court of Thailand rejected the claim for parent's lost earning due to taking care of their son and held that such expenses were out of the scope of "the expenses."¹³ In terms of the damages for total or partial disability to work, it means the loss of earning that the injured party is suffered from the injury.¹⁴ This type of damage may be totally lost in a case that.the injured is unable to get back to work such as in the case of quadriplegic.¹⁵ Because of the name of the damages, it may be confused with the disability that is non-pecuniary damages, but, in fact, it is distinct damage in which the injured party can claim both separately.¹⁶

The non-pecuniary damages in wrongful act

In Thailand, non-pecuniary damage is granted only for some injuries, namely bodily harm and deprivation of liberty.¹⁷ As mentioned, the scope of this article is devoted to the personal injury case; the non-pecuniary damages for injury to the liberty are thus reserved for the next study. This part will explain the definition and types of non-pecuniary damages, and the method of assessment. Then, it will present the problem resulting from the current mechanism of the non-pecuniary damages in Thailand. This part eventually will give the example of the decision of Thailand court regarding the case of wrongful act causing injury to death and bodily harm in order to provide comprehensive understanding on the non-pecuniary damages in Thailand.
The meaning of the non-pecuniary damages is still controversial due to the fact that the Civil and Commercial Code does not identify the exact definition and types of the non-pecuniary damages. However, many scholars define the non-pecuniary damages as the damages that cannot be calculated in the monetary value.¹⁸ In addition, the decision of the Supreme Court of Thailand can broaden the understanding of non-pecuniary damages because it names many types of non-pecuniary damages such as the damages regarding loss of emotional feeling and enjoyment due to the disability caused by wrongful act¹⁹, pain and suffering²⁰, disfigurement.²¹ Each type of non-pecuniary damages can be claimed separately. For example, the plaintiff who got disability caused by the wrongful act can claim both the pain and suffering and the loss of enjoyment.²²

In assessment of damages, the plaintiff generally has the burden of proof to show the damages sustained, both pecuniary and- non-pecuniary damages. The court will determine the damages according to the evidence of damages shown. However, although the plaintiff is unable to prove the damages or show the extent of damages sustained, the court, pursuant to section 438, has discretion to determine the damages according to the circumstance and gravity of the wrongful act.²³ The failure of plaintiff to show damage sustained is more aggravated in the case of non-pecuniary damage than pecuniary damages due to the fact that it is very hard and subjective to assess to what extent the injured party sustained. This problem in the current mechanism merits consideration in the subsequent part.

The problems with the current mechanism of non-pecuniary damages

Liability for non-pecuniary damages is the area of damages which attracts a lot of critics from not only scholars in Thailand but also worldwide. The critical issue on the non-pecuniary damages where the scholars have spent a lot of time and effort for discussion is the issue whether the non-pecuniary damage should be granted. This article will take care, of such issue in the last part subsequent to comparative study on non-pecuniary damages in both US and Thailand. For this part, the article will delineate the current distinct problems found in the case of non-pecuniary damages compensated on the personal injury causing death and bodily harm in Thailand.

First of all, non-pecuniary damage, according to section 446, is entitled to the party only in the case of bodily harm but negated in the case of death. The absence of non-pecuniary damages in the case of injury to death brings about the situation that the injured party is left unfairly uncompensated. An anomalous outcome may arise due to the fact that the damages in the case of bodily harm are likely to be greater than the damages in the case of death. This will distort the motivation of people to utilize the proper care because the reasonable people will lack the motivation to take more care to avoid death than to avoid bodily harm.²⁴

Secondly, in the case of death where the injured party is not immediately dead, he may be inflicted with pain and suffering prior to death. Nonetheless, Thailand Civil and Commercial law does not provide the injured party with the right to claim such pain and suffering damages prior to death. This may constitute the unfairness to the injured party and similarly, in economic sense, lead to the distortion of proper motivation.

Thirdly, the death or bodily harm of the injured person may cause serious emotional harm to the spouse, child, or other person in close familiar relationship with the deceased. However, the Civil and Commercial code stipulates the non-pecuniary damages solely to the injured person but does not allow others to claim for non-pecuniary damages they suffer from the beloved's or the family member's death.²⁵ This seems to be unfair for them suffering without compensation.  

Finally, the problem of the assessment of non-pecuniary damages is also immense. The non-pecuniary damage is evaluated by the court's discretion which basically is utilized to determine such damage according to the circumstance and the degree of wrongful act; however, the amount of damage is circumscribed by the requested amount in the plaint by the injured party. The result that the amount of the granted non-pecuniary damages is incongruent among the courts, despite similar fact patterns, and sometimes insufficient to adequately compensate the injured, is unavoidable due to the fact that each judge has different opinion and experience and has scope of authority to fully grant damages only at the requested amount.

Thailand Supreme Court decisions regarding wrongful act causing death and bodily harm

To be more comprehensible on the non-pecuniary damages in Thailand, this section will compare two court decisions on the wrongful act causing death and bodily harm respectively. For the sake of easier understandability, the two cases both involve the same fact of a car accident resulting in bodily harm in one case and death in the other.

The decision of the appeal court No.1011/2549 is the most recent notorious case regarding the wrongful act causing death. In this case, Piyada, the deceased, studying in the last year of the faculty of management, Assumption University, was waiting for the defendant's omnibus at the bus stop. The bus later approached and took Piyada; however, the driver, the defendant's employee negligently drove off hastily without shutting the automatic door. As a result of the propulsion of the omnibus, Piyada fell off the car and her head was violently crushed against the street, subsequently causing her death. Her father brought the lawsuit against the defendant claiming for such statutory damages as funeral, other necessary expenses, medical expense, and loss of the legal support in Piyada's life expectancy of 20 years. The total claiming damages is 12,081,211 baht. The trial judge held that the defendant was negligent and granted the total damages to plaintiff 10,747,000 baht. This amount of damages came mainly from loss of the legal support in which the trial court determined as 46,000 per month in 20 years, totaling 11,040,000 (46,000x12x20), plus funeral or other necessary expenses and medical expense! prior to death, reduced the paid insurance compensation 750,000 baht. The defendant appealed. One of the appealed issues is that the loss of legal support was excessive. The appeal court opined that the deceased is! well educated, knowledgeable in both English and Japanese language, and had a plan to study in Japan, which, if she succeeds in her plan, she can earn money at least 46,000 baht a month. Therefore, the Appeal court affirmed the trial court's decision that the loss of legal support should be 46,000 baht a month in 20 years. This case is now pending in the Supreme Court.

8.Section 444 " In the case of an injury to the body or health, the injured person is entitled to receive reimbursement of his expenses and damages for total or partial disability to work, for the present as well as for the future

If at the time of giving judgment it is impossible to ascertain the actual consequences of the injury, the Court may reserve in the judgment the right to revise such judgment for a period not exceeding two years."

9.Section 445 of Thailand Civil and Commercial code.

10.Section 446 "In the case of injury to the body or health of another, or in the case of deprivation of liberty, the injured person may also claim compensation for the damage which is not pecuniary loss. The claim is not transferable, and does not pass to the heirs, unless it has been acknowledged by contract, or on action on it has been commenced.

11.The Decision of the Supreme Court No.4859/2538.

12.The Decision of the Supreme Court No.3345/2538.

13.Ibid.!

14.The Decision of the Supreme Court No.516/2551.

15.Ibid.

16.The Decision of the Supreme Court No.6303/2547.

17.Supra Note 11.

18.Suphanit, Susom.2007. "Tort law" Bangkok: faculty of law, Chulalongkorn University p.265.

19.The Decision of the Supreme Court No. 247/1995.

20.The Decision of the Supreme Court No. 3344/1990.

21.The Decision of the Supreme Court No. 128/1979.

22.The Decision of the Supreme Court No. 247/2538, 75/2538.

23. Section 438 "The court shall determine the manner and the extent of compensation according to the circumstances and the gravity of the wrongful act.

Compensation may include restitution of the property of which the injured person has been wrongfully deprived of its value as well as damages for any injury caused."

24.Thailand Development Research Institute .2010. "Economic Analysis of Law: the Assessment of Damages in Wrongful Act" the proposal to the office of judiciary of Thailand p.6.

25.The Decision of the Supreme Court No.780/2502.