Thailand Law Journal 2013 Spring Issue 1 Volume 16

The Illinois court decision on the wrongful act causing to bodily harm and death

This part will give clearer understanding of the non-pecuniary damages in the US through examining the court decision on the wrongful act causing to bodily harm and death. However, as mentioned, the non-pecuniary damages are varied among the states; thus, for the sake of easiness, the cases below are extracted from only the court of Illinois state. These two cases are based on the infringement of the driver similar to the cases in Thailand referred above. The first case is related to injury causing to bodily harm while the second case is related to the injury causing to death.

In Richardson v Chapman, 676 N.E. 2d 621, 627(111.1997), plaintiff, Keva Richardson, at the age of 23, and Ann McGregor, were injured when the car in which they were riding, which was stopped at a red light at the intersection, was smashed from behind by a semi-trailer truck driven by defendant Jeffrey Chapman, who was an employee of the defendant corporation. Keva Richardson, the driver of the car, was severely injured and rendered quadriplegic. Ann McGregor, the passenger, sustained only slight injuries and returned to work a couple of weeks later. At the time of accident, both of them worked as a flight attendant with American Airline. The jury awarded Keva Richardson the total damages $22,4 million. This figure stands for $12.2 million for economic damages subdivided up to $ 0.3 million for past medical expenses, $ 11 million for the future medical expenses, and 10.2 million for non-economic damages subdivided to $ 3.5 million for disability, $ 2.1 million for disfigurement, and $ 4.6 million for past and present pain and suffering. The Illinois Supreme court affirmed the non-economic damages but ordered a $ 1 million reduction in the award through remitter, reasoning that awarding the medical cost was too great to be entirely attributable to such unqualified costs and represented too great a departure from the trial testimony.⁵³

In Garcia Clarke v Medley Moving and Storage Inc. 885 N.E.2d 39, in May 2002, the truck driver negligently struck the decedent, at the age of 83, while crossing the street. The decedent died of his injuries shortly after he was transported to a hospital. The plaintiff as the executor of the victim sued defendants, vehicle owner and driver, alleging for damages sustained by the decedent's estate under the Illinois Wrongful Death Act and under the Survival Act. In other words, the plaintiff claims for compensation for the decedent's four adult children in loss of gifts, benefits, goods, services and society Under the Wrongful Death Act, and the compensation for decedent's estate in pain and suffering under the Survival Act. The record showed that the driver was negligent crushing victim, and the victim's death lead to the four adult children damages for deprivation of the support as well as deprivation of the companionship, guidance, advice, love and affection of the deceased. Also, the decedent was inflicted with the pain and suffering prior to death. Based on the evidence, the jury rendered a verdict for the plaintiff heirs and against defendants in the amount of $1,725,000, reduced by 1% for the contributory negligence of Clarke to  $1,707,750. The award damages were as follows: $ 275,000 for the pain and suffering experienced by Clark; $ 250,000 for the loss of past and future gifts, benefits, goods and services of Clarke; and $ 1,200,000 for the loss of past and future society of Clarke. The appeal court affirmed.

It should be noted that in the first case, the plaintiff claimed separately the non-economic damages, that is, disfigurement, disability, and past and present pain and suffering. In assessing each type of non-economic damage, both plaintiff and defendant's attorney suggested the jury the range of the suggested amount of each item of damages and let the jury independently decided the amount of damages, which may be out of the range suggested by the parties.

In the second case, it is good to notice that plaintiff in this case is four adult children at the age of each over 50 years old. Also, the decedent, at the time of death, was 83 years old and was proved infliction with pain and suffering in the short period during the accident till he was dead at the hospital. Nonetheless, the jury granted thei damages for his four children under the Wrongful Death Case up to $ 250,000 for the loss of past and future gifts, benefits, goods and services, and $1,200,000 for the loss of past and future society, as well as the pain and suffering experienced by decedent at $275,000. It is doubtful that if this case arose in Thailand, how much Thailand court granted damages on the plaintiff.

COMPARATIVE ANALYSIS

From the information presented above, the non-pecuniary damages in the US and Thailand seems to be distinct and merit the consideration in more detail. This section will make a summary on the differences of the non-pecuniary damages in both systems and find out such differences should be harmonized to provide the better improvement.

The differences of non-pecuniary damages in Thailand and US

The differences of non-pecuniary damages in Thailand and US can be divided up to four categories as follows.

1. Types of non-pecuniary damages for the case of injury to bodily harm This type of non-pecuniary damages is actually similar between both countries. In other words, the law allows the injured party to claim for the non-pecuniary damages sustained from injury to bodily harm. However, both of them are different in degree and the depth of court treatment. In Thailand, the law allows the injured party to claim both pecuniary and non-pecuniary damages. However, in term of non-pecuniary damages, although the injured party differentiates the type of non-pecuniary damages she thought she is eligible such as pain and suffering, loss of enjoyment, disfigurement, the court, in fact, grants the concluding amount of such damages in total sum. This treatment can be viewed in the Keerati case in which the court granted the total sum of non-pecuniary damages at 6,900,000 baht. Unlike Thailand, the injured party in most states in the US can claim for each type of non-pecuniary damage separately and the jury will award the verdict based on each type of non-pecuniary damages. The Richardson case is the good example of the treatment of most courts which granted non-pecuniary damage separately on disability, disfigurement, and past and present pain and suffering.

2.Types of non-pecuniary damages for the case of injury to death The non-pecuniary damages in the case of injury to death is substantial different between both countries. In fact, Thailand does not allow the injured party to claim for any non-pecuniary  damages in the death case. The concept of pain and suffering  prior to death as well as the loss of enjoyment is ubiquitous in many states in the US but such concept does not have the place in Thailand's tort law. The example of Piyada case clearly shows that she does not allege the non-pecuniary damages in the plaint because she knew exactly the law does not allow the non-pecuniary damages in the case. On the contrary, the example of Clarke case shows that the Illinois court recognized the pain and suffering prior to Clarke's death under Survival Act.

3.The third party claims on non-pecuniary damages
Damages for the third party, the person who suffered from victim's injury or death, are the other subject that is very different between Thailand and the US. In this regard, the US is much more broadening scope for the third party's damages than Thailand, especially in the area of the non-pecuniary damages. For example, most states in the US law enable the spouse to claim for the loss of society or the loss of consortium from the tortfeasor who causes the injury to bodily harm or death. Many states also extend this type of damages covering child and parent. The Clarke case is the good example showing that even the adult children with the age above 50 years can claim the loss of society from the defendant. More broadening, the third party may claim for the mental distress once she is suffered by witnessing an accident involving a loved one although the condition that there must be physical injury must be met.

Turning to Thailand, the third party, no matter how close relation with the injured party, is not entitled to the non-pecuniary damages. Only pecuniary damages such as the loss of legal support, loss of service can the third party claim under the law of tort liability. The Piyada case obviously shows that Piyada's father can claim for the legal support and nothing else. Also Keerati's mother can claim only Keerati's damage but cannot claim anything for her damages due to the law does not allow the claim for the legal support in the case of the injury to bodily harm.

4. The assessment of non-pecuniary damages
Both systems have the substantially different assessment of damages. In Thailand, the plaintiff is, according to Section 142 of the Civil Procedure law, bound to identify the type and the amount of damages in the plaint and the court is unable to grant the type and the amount of damage exceeding those identified in the plaint. This stipulated condition lead to the situation that the amount of the granted damages in one case sometimes are much less than the other case with the similar fact due to that the plaintiff in the former case may leave out some kind of eligible damages or dentified the inadequate amount of damage, which leads to the plaintiff improperly uncompensated. For example, assuming, based on the evidences enunciated in the court hearing, Keerati suffered or will suffer amount of damages much more than the requested damages, the court, subject to the law, can grant the greatest at the plaintiff's requested amount of damages, which unavoidably constituted inadequate compensation. This problem seems not to be the case in the US in which the plaintiff is not limited to identify a kind and the amount of damages in the plaint. Rather, the plaintiff's attorney can suggest the jury the range of possible amount of each type of damages. The jury in fact can compare the suggested, range of the plaintiff and defendant's amounts of damage to reach the granted amount of damages which may be out of the range proposed by both parties. The Richardson case shows the mentioned assessment of non-pecuniary damages in the US.

53. Supra Note 34 p.699.