Thailand Law Journal 2013 Spring Issue 1 Volume 16

The proposed reform of Thailand Non-pecuniary damages

The comparative study above merits the consideration on whether and to what extent Thailand tort law should recognize the concept of US non-pecuniary damages. In this part, the focus will be laid on the existing problem of Thailand non-pecuniary damages and analyze how the US tackle with such problems in order to see the possibility to extend the scope of the existing Thailand non-pecuniary damages. However, due to a lot of discussion on non-pecuniary damages, the article should firstly address the conflicting opinions based upon the non-pecuniary damage affecting the two main goals of tort liability, compensation and deterrence, before constructing to what extent the scope of Thailand tort law; should recognize the non-pecuniary damages.

The goals of tort law have been recognized in a number of different Ways. However, the major goals emphasize both compensation and deterrence. Firstly, the tort law should compensate the injured for their injuries and restore them as closely as to the condition prior to the accident. However, some disagree with the concept of non-pecuniary damages and argue that the non-pecuniary damages never restore the injured to the condition prior to injury due to undeniable fact that money neither erase the pain nor restore the plaintiff to the pre-injury status.⁵⁴ In addition, because of no money equivalent, it is difficult to establish workable standard of measurement.⁵⁵ Therefore, it should be limited or should not be recognized.
In my opinion, I am not convinced that the non-pecuniary damage should be abandoned. Although there is no monetary for such loss, the non-pecuniary damages are viewed as symbolic of the defendant's responsibility for the plaintiffs loss based upon the extent of its gravity.⁵⁶ Also, this damage is viewed as the proper atonement that the defendant has to pay respect to the plaintiff for loss.⁵⁷ Assuming that none of non-pecniary damages is actionable, the award of damages in Keerati case must be minimal because only medical expenses is granted while other monetary damage such as loss of earning is hard to quantify due to the fact that Keerati is a kid and has no earning at the time of accident. The result shall leave Keerati and his family unfairly uncompensated.

Another major goal of the tort liability is to deter unreasonable unsafe conduct.⁵⁸ In economic perspective, the tort liability can lead to the deterrent effect. The economic theory is that reasonable person knows exactly the expected cost and benefit of every action they are going to undertake and: will weigh up all related factors to estimate the intended action is beneficial for their utility and act according to this deliberation.⁵⁹ In this sense, once the individual realize that she is subject to compensation, she will .weigh the cost of compensation and benefit to estimate the intended action. If the compensation is properly granted, that is equal or more than the actual damages, it can lead to motivation to exercise the proper care and therefore deter the accident.⁶⁰ On the other hands, if the compensation is determined less than the actual damages, the benefit will
outweigh the cost of infringement and thus discourage the motivation to exercise the proper care and thus make the deterrent effect ineffective.⁶¹ Thus, if the non-pecuniary damage is not allowed, the granted damages based upon the monetary damages seem to inadequate and less cost than benefit the injurer gained that it is unable to provide the injurer the motivation to exercise the proper care and obstruct the deterrent effect.

However, some scholars disagree that the non-pecuniary damages can lead to the deterrent effect. One of the main reasons is that, the liability fail to communicate to the infringer in order to motivate the proper care due to the fact that, in most cases, based on the concept of vicarious liability, those who is compelled to pay damages is not infringer but may be the employer or insurance company.⁶² In my point of view, such situation is recognized; however, the deterrent effect by the non-pecuniary damages also plays the role. Although the third party, employer or insurance, is statutorily forced to pay the damages on infringer's conduct, that does not mean there would by no means effect on the infringer. For instance, in Piyada or Keerati case, although the employer is liable for paying large amount of damages, the driver is liable for the criminal punishment and fired from his job due to his negligence. Thus, the final result of granting the non-pecuniary damages also communicates to the infringer and implies the motivation to exercise the proper care, which results in the deterrent effect.

The above analysis can infer my opinion that the non-pecuniary damages, despite being unable to undone with money and difficult to quantify, is the real loss to the injured and essential to two major goals of tort liability. However, the scope is also questionable. In Thailand, the scope of non-pecuniary damages in personal injury is determined only in the case of the injury to bodily harm and left out for the case of injury to death. This leads to the unsatisfied result. For instance, assuming that Keerati is suddenly dead from the infringement, the defendant seems to be limitedly liable for loss of earning or legal support due to Keerati is a kid with no earning at the time of accident. Additionally, because of the sudden death, there, is none of medical expense granted. As a result, the granted damages the defendant is liable are much more less than the said case of injury to bodily harm. This result lead to the unfairness to Keeratiand his family and definitely failed to provide the motivation for infringer to exercise the proper care.

Turning to the US non-pecuniary damages for injury causing to death, the court realize the importance of such damages. According to Jordan v Baptist Three Rivers Hospital 984 SW.2d 593(Tenn.1999), Holder mentioned that, absent the wrongful death cause of action,it was cheaper for the defendant to kill the plaintiff than to injure him, and that the most grievous of all injuries left the bereaved family of the victim... without a remedy." In fact, it is well recognized among states that non-pecuniary damages such as the pain and suffering prior to death can be recovered by victim's estate under the Survival statute. However, although few states do recognize the pain and suffering of the deceased subsequent to death like the loss of enjoyment of life, or hedonic loss, most states reject it owing to undeniable fact that the deceased has no feeling, whatever happiness or misery. Granting the non-pecuniary damages subsequent to death may be over-compensation and windfall to the deceased's heir. Therefore, from the above discussion, absence of non-pecuniary damages in the case of injury causing to death is problematic and in fact, Thailand court realizes the unsatisfied result that may arise from such absence. For example, in Piyada case, although Thailand court cannot grant non-pecuniary damages but it alternatively choose to increase the loss of legal support to 46,000 baht a month in 20 years. This is very high amount of legal support given that Piyada was a college student at that time and has no earning at all. The Thailand court deals with the impasses of non-existence of non-pecuniary damages by increasing the monetary damages in order to adequately compensate Piyada's family. Therefore, based on the analysis above, it is reasonably timely for Thailand to recognize non-pecuniary damages in the case of injury causing to death.

However, the scope of non-pecuniary damage should be seriously studied before implementation. In my view, the decedent's non-pecuniary damages for the pain and suffering damages prior to death are real and should be undeniably recognized. For non-pecuniary damages subsequent to death, however, a lot of researches on its influence on the goals of tort law should be taken into consideration before enforcement.

Regarding the non-pecuniary damages for the decedent's next of kin, Thailand does not recognize the non-pecuniary damages of the third party in relation with the plaintiff. In US, many states recognize the recovery of the spouse's loss of consortium. However, the scope for other person in 'felation with the decedent is still much of controversial. For example, the Illinois Supreme Court has permitted spouses, parents of minor and adult children and sibling to recover the loss of consortium See Finley v Zemmel, 151 I11.2d 95, 276 Ill,Dec. 1, 601 N.E.2d 699(1992) and Garcia Clarke v Medley Moving and Storage Inc. and Gregory Griffin 381111. App. 3d 82; 885 N.E.2d 396;2008 111 while New York and New Jersey state expressly preclude recovery for loss of society or companionship See eg. Alexander v Whitman, 144 F.3d 1392(3d Ct. 1997).⁶³ In addition, many states recognized the mental distress caused by witnessing the injury to, the loved one. However, the rule in this kind of damages is not determinative. In other words, although general rule requires the physical harm accompanied with the mental distress, the interpretation of harm may 390(1970) and some states does not require the physical harm See St.Elizabeth Hospital v Garrard, 7:30 S.W.2d 649 (Tex.1987).⁶⁴ Consequently, although the concept of the non-pecuniary damages for the third party is real and necessary for compensation, given disparities among states about the concept of non-pecuniary loss to the third party, it is too soon to implement in Thailand. The research should be undertaken in depth about its advantages and drawbacks and influence on the goals of tort law, both compensation and deterrence before Thailand will recognize the concept of the non-pecuniary damages for the third party.

Lastly, in spite of the huge differences of the procedural law in Thailand and US,and the prominent role of jury in the US non-existent in Thailand, it should be noted that some concept of assessment in the US can be borrowed to apply and adjust in the Thailand tort law system. The most "distinctive feature is that the judge and jury in the US are not limited in the scope of the requested amount of damages. For example, in the case of  Keeva, the attorney of both plaintiff and defendant can offer the range of the possible amount of damages to jury but the jury is independently able to grant amount of damages even out of such proposed ranges. Unlike US, judges in Thailand, under Section 142 of the Civil Procedural code, is prohibited to grant the amount of damages out of the plaintiffs requested amount of damages, although the evidence will show that such damages are sustained by the plaintiff. It would be better compensation on the injured party provided that the court has more discretion to grant the amount of damages according to the shown evidence although the plaintiffs attorney unwittingly or negligently leaves out some real damages. Consequently, the proposed reform is to amend the legislation to provide more discretion to the court without the limitation only on the scope of the requested amount of damages.

53. Supra Note 34 p.699.

54.Joseph H. King, Jr (2004) "Pain and Suffering, Noneconomic Damages, and The Goals of Tort Law" 57 SMU Law Review 163 p.2.

55.Ibid.

56.Supra Note 40 p.1.

57.Ibid.

58.Supra Note 48 p.9.

59.Supra Note 21 p.218.

60.Supra Note 18 p.2-5.

61.Ibid.

62.Supra Note 48 p.10.

63.Supra Note 20 p.574.

64.Ibid p.693.