Thailand Law Journal 2013 Spring Issue 1 Volume 16

The Non-Pecuniary Damages in Wrongful Acts Causing Bodily Harm and Death:
The Comparative Study on U.S. and Thailand Laws

By Worrawong Atcharawongchai*

Liability for non-pecuniary damage is one of the most controversial areas of tort law that attracts a lot of discussion. There are many academic literatures discussing whether this non-pecuniary damage should be granted. The proponents claim that non-pecuniary damages should be given because it is real damage sustained by the victims while opponents claim that this damage is not justified due to the fact that the loss has no monetary equivalents and such damages do not return the victim to his pre-injury position. There are disagreements in this area of law among countries. Most countries recognize non-pecuniary damages but differ in the kind and the degree of damages. This article is designed to explore non-pecuniary damages in Thailand and the US. The comparative study will be used intensively throughout the article in order to find out the differences between both countries and examine the possibility of applying and adjusting some strength of the US non-pecuniary damages to Thailand. To do so, the first section of this article will delineate the concept of tort law in Thailand and narrow it to the personal injury, both bodily harm and death, which is the focus of this article. This section also explores in detail the kind and the assessment of non-pecuniary damages, as well as the problem of the current system. To get more understandable, the example of the Thailand Supreme Court decision on the injury causing bodily harm and death will be shown. Secondly, the US non-pecuniary damages will be examined in the same way as above. In other words, the -kind and assessment of non-pecuniary damages plus the problem of the existing system will be depicted with the example of the cases on injury to bodily harm and death at the end of the section. Next, the differences of non-pecuniary damages of both systems will be described, and the comparative analysis on whether and to what extent Thailand should adopt some concept of the US non-pecuniary damage will be addressed. Lastly the conclusion of this article will be provided.

NON-PECUNIARY DAMAGES IN THAILAND

The overview of Tort liability in Thailand

This section will be dedicated to the explanation of tort liability that will be useful for comparative study in the following section. This section will firstly show the quick overview about what kind of basis is required for the tort law claim and how the injured party brings the tort law claim against the tortfeasor. It will then turn to the goal and the concept of tort law claim for personal injury, especially the injury resulting in bodily harm and death that is the center of this article. Finally, it will show what kind
of damages can be requested in personal injury claim.

Tort liability

In general, the tort liability is established when all three factors are met, that is, damages, causation and wrongful act. In Thailand, the concept of tort law liability is determined in section 420 as follows.

Section 420 "A person who, willfully or negligently, unlawfully injures the life, body, health, liberty, property or any right of another person, is said to commit a wrongful act and is bound to make compensation therefore."

According to section 420, the elements of tort liability are 1) negligent or willful 2) Unlawful act 3) Damages 4) Damages caused by such unlawful act. If the injured parties would like to bring the tort law claim against the tortfeasor, they have to show all of these elements. The tort liability is established only when such all elements are met, and the defendant will be responsible for compensation. There are subtle issues about each mentioned element of the tort law liability that are controversial and would need a lot of time and space to deal with. However, this article focuses on the issue of damages.

When the tort liability is established, the next question is what kind, to what extent and how damages will be given. In this regard, the plaintiff has the burden of proof to show damage he sustained through adducing evidences about the circumstances and seriousness of the tort. However, although the plaintiff is unable or inadequate to adduce evidence that he has been actually injured, or he is unable to show how much he should be given damages, the court, according to section 438, can award the plaintiff damages as is proper for the circumstances and seriousness of the tort.¹

Personal injury claim

Personal injury is defined as the legal term for an injury to the body, mind or emotion as contrary to the injury to property.² It may include all kind of injuries that happen to the injured person such; as death, bodily harm, defamation, loss of liberty etc. However, this article will focus solely upon the injury causing death and bodily harm. Unquestionably, the tort law of Thailand, according to section 420, protects people from wrongful act causing death and bodily harm. The injured person can bring the lawsuit against the tortfeasor whose action causes death or bodily harm. The plaintiff can claim for damages if they can show the elements of tort law e.g. the wrongful action, causation, and damages. The question often asked is what kind of damages the injured person can claim for his injury. In this regard, damages can be divided to two types, pecuniary damages and non-pecuniary damages. The pecuniary damages are the-damages covering the actual monetary expenses and losses in economic value resulting from the tortious act such as lost earnings, medical expenses, and the reduction in the market value of property. On the; other hand, the non-pecuniary damages are the damages covering psychic consequences of the injury and cannot be calculated or reduced to the monetary value such as pain and suffering, disability, disfigurement, loss of enjoyment. However, the damages injured parties can claim are different for bodily harm and death.

In the case of death, the types of damages are the following: funeral or other necessary expenses, medical expense and loss of earning prior to death³, compensation for the third party for loss of the injured party's services⁴, compensation for the third party for loss of the legal support.⁵ Since the civil and commercial code provide only these six types of damages in the injury causing death, the granted damages may not cover all the harms that the decedent or the person in relationship with the decedent have sustained.

For example, the damages sustained by the decedent such as decedent's loss of earning in the future or the pain and buffering from the injury prior to death are not included in the actionable Slamages⁶. Also, some damages sustained by the person in relationship with the decedent such as pain and suffering or losses of consortium are unable to claim under the Thailand law.⁷

* Judge of Phuket Provincial Court: LL.B (Thammasat University), Thai Barrister at law, LL.M. in International Trade and Commercial law (University of Durham, UK), LL.M. in Intellectual Property and Technology law (National University of Singapore, Singapore) funded by Microsoft Scholarship, LL.M. in International and Comparative law with Honors (Chicago-Kent College of Law, US.) funded by the Office of Judiciary of Thailand.

1.Section 438 of Thailand Civil and Commercial Code.

2.Wikipedia see http://en.wikipedia.org/wiki/Personal_injury.

3.Section 443 "In the wrongful act causing to death, compensation shall include funeral and other necessary expenses If death did not ensue immediately, compensation shall include particular expenses for medical treatment and damages for the loss of earning on account of disability to work If on account of death any person has been deprived of his legal support, he is entitled
to compensation therefore.

4.Section 445 "In the case of wrongful act causing death, or causing injury to the body or health of another, or in the deprivation of liberty, if the injured person was bound by law to perform service in favor, of a third person in his household or industry, the person bound to make compensation shall compensate the third person for the loss of such service.

5. Section 443 of Thailand Civil and Commercial Code.9.Section 445 of Thailand Civil and Commercial code.

6.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.4-15.

7.Ibid.