In the Supreme Court decision No.6303/2547, the fact in this case is similar to the previous one. It is the case regarding the wrongful act of the omnibus driver who negligently drove off the bus stop so abruptly that Keerati, at the age of 6, fell of the bus and was run over by the omnibus, causing him disability and serious injury. His father brought the lawsuit against the driver and his employer claiming for damages of 12,626,200.38 baht, composed of the medical expenses and the damages for total or partial disability to work, for the present as well as for the future, and non-pecuniary damages. In the respect of non-pecuniary damages, the court reasoned that, according to the expert's testimony, Keerati will be disabled forever and he even cannot excrete himself. This harsh result ruined his life and future. The plaintiff, therefore, is eligible for, according to section 444, for the damages for pecuniary lost earnings and the pain and suffering caused by such disability. These damages are not overlapping and plaintiff is entitled for both of them in aggregate of 6,900,000 baht. Plus the medical and other expenses, the total amount of damages in this case is 8,611,370.50 baht.
It should be noted that the first case involving death is the Appeal Court decision while the second case involving bodily harm is the Supreme Court decision. The reason to raise these two cases as the example is that these cases are similar in fact pattern and they are some of the most recent decisions on non-pecuniary damages. The first case; does not deal with the non-pecuniary damages due to the fact that such damage cannot be claimed by law; therefore, the plaintiff does not request it on the claim and the court does not need to mention it in its decision. The second case, on the other hand, raised the issue of non-pecuniary damages as the law permits. However, it should be noted that the Supreme Court granted both the damages for lost earnings and pain and suffering caused by such disability in total amount of money, 6,900,000 baht. Notice should also be added that the Supreme Court in the second case granted non-pecuniary damages through the discretion but it is not obvious in the decision about how the Supreme Court reached such amount of pain and suffering. The court only reasoned that due to the fact that the disability will last forever and ruined Keerati's life, so such amount of pain and suffering should be granted. The last notice should be given that most of the cases of bodily harm is normally granted more total damages than the case of death because the former provides more types of claimable damages than the latter. It also requires more continuing medical expenses than injury involving death which involves solely in claiming for the medical expense prior to death. For this reason, the first case seems to be irregularly high compared to other cases with the same fact. However, in my view, the substantial amount of damage is caused by defendant's egregious wrongful act. The fact that the accident is related to the omnibus that is regarded as the major public transportation of people in Bangkok, Thailand attracted a lot of public criticism about badly negligence of the driver, and raised the concern about the safety of the everyday bus commuters. Furthermore, the deceased is the innocent student with future prospect if she can live longer. Consequently, although the precedents show that the courts have been reluctant to grant the high amount of loss of legal support in the case that the deceased is only student and has no job at the time of death, the Appeal court in this case indirectly and enormously increase such loss of legal support, in order to impliedly punish the defendants for their negligently egregious act.
This method of increasing loss of legal support may be viewed as the implied punitive damage. Nonetheless, this case still has to wait for the review of the Supreme Court.
NON-PECUNIARY DAMAGES IN THE US
Before exploring the concept of the US non-pecuniary, damage, it should be noted at the outset that there is a huge difference between Thailand and US legal system, which may bring about conflicting idea about the concept and method of the non-pecuniary damages. Firstly, it should be noted that the US law on the non-pecuniary damages is, unlike Thailand, not uniform rule throughout the states. Different states have their own rule
04 the non-pecuniary damages. For example, some states may allow recovering loss of consortium while others may not. Therefore, this article will provide the general concept about the non-pecuniary damages, and if possible, will delineate the difference of each concept of non-pecuniary damages among the states.
Another notice that should merit our consideration is that the US legal system is so distinctive in that the jury, as the trier of fact, plays a key role in determining the damages. The judge may give the jury instruction about how to impose each kind of damages and has limited power to decrease or increase amount of damages granted by jury, except for the case that such amount is so much or little that it shocks the conscience.26 The role of jury in determining the damages in the US is much different from Thailand where the judge has the sole power to grant damages. As a result, when the problem of assessment of non-pecuniary damages is mentioned, it should be kept in mind that a group of lay man, so called jury, is the determiner of the damages, which may constitute the different problem as it will later be discussed.
Lastly, the procedural rule on the damage claim is also different in Thailand and US. In Thailand, as mentioned, the injured party will be granted the amount of non-pecuniary damages not exceeding their request on the claim. On the other hand, in the US, based on the research on a variety of cases, the injured party's lawyer can introduce the range of the possible amount of non-pecuniary damages; however, the jury is not circumscribed on that amount and can independently grant more or less than that. This difference in some situations may influence on the amount of granted damages.
In this section, I will focus on non – pecuniary damages in the injury causing bodily harm or death. To do so, I will divide the non-pecuniary claims into two parts, bodily harm and death, and further divide into the claim by the injured party and the third party. The article will later explain how the assessment of non-pecuniary damage is made. Then, it will propose possible problems in the US current law on non-pecuniary damages. For the sake of comparative study, the cases with similar facts to the above-mentioned Thailand case will be shown.
Non-Pecuniary damages
Non-pecuniary damages can be defined as a loss which is intangible and which lack the market value.27 In the US, each state has their own state common tort law, which may have the different concept of the non-pecuniary damages. In fact, each state may describe or identify the different types in different ways. Given the literature, court decisions
and scholar opinions, the non-pecuniary damages in many states are collectively called as pain and suffering; however, other states provide the non-pecuniary damages in broad sense where the pain and suffering is regarded as merely one of the non-pecuniary damages. There are many categories of pain and suffering; however, Viscusi divides them into four following categories.
"1) Tangible physiological pain suffered by the victim at the time of injury and during recuperation, a period that may be lengthy but that is more often brief.
2) The anguish and terror felt in the face of impending injury or death, both before and after an accident.
3) The immediate emotional distress and long-term loss of love and companionship resulting from the injury or death of a close family member, so known in the US as "loss of consortium"
4) Most important, the enduring loss of enjoyment of life by the accident victim who is denied the pleasures of normal personal and social activities because of his permanent physical impairment, a loss of which may not be perceived by individuals who suffer brain damage."28 |
