Thailand Law Journal 2013 Fall Issue 1 Volume 16

II Problems Concerning Recovering Damages for Non- Pecunairy Loss in Case of Injury
to Life

(a) Under the Thai Civil and Commercial Code

First of all, section 446 suggests that the right to claim damages for non-pecuniary loss will die with the injured person and will not pass to the heir.

Together with the strict interpretation of section 446, 443 and 445 and the Supreme Court's decisions,¹¹ damages for non-pecuniary loss will not be granted in case of injury to life because the Court found that there is no specific compensation granted by the law and that emotion is not regarded as a state of damage guaranteed under the TCCC. In this approach, damages for bereavement and damages for value for one's life (damages for loss of life) will not be recognized. This is leading to the false impression that a life has no value to compensate whiles a property has and will be compensated, if lost.

(b) Under the Liability for Damages Arising from Unsafe Products Act

Section 11 (1) provides 'The court shall be authorized to demand compensation for damages based on the following, in addition to compensation for violations of the Civil and Commercial Code:

Compensation for damage to mental health, as well as body, health, and hygiene of the damaged party. In the event the damaged party has died, the damage party's husband, wife, children, or descendants shall have rights to compensation¹² for the damage occurring to mental health.'

This provision does not clearly mention whether the listed-persons' right to claim for damages is the inheritability of the injured person's right or it is the heir's own right to claim damages for damage to the listed-persons' mental state, i.e., damages for bereavement. There are two ways to interpret this provision (i) the right to claim damages under section 11(1) is inheritable because it is the right to claim damages that is additional to the right provided under the TCCC; the right to claim damages for non-pecuniary loss under the TCCC is inheritable. Therefore, it can be enacted separately. Yet, it will cause confusion because the right of the deceased has already provided under section 446¹³ or; (ii) the listed-persons have their own right to claim damages for bereavement resulting from the death of the deceased. (Listed-persons mean the type of persons that specifically indicated within the complying law, as the case maybe. In this section 11(1), listed-persons mean the damage party's husband, wife, children, or descendants.)

According to the note from the Council of State which suggests that the Council of State does not want damages for damage to mental state to survive the death but rather give damages for bereavement,¹⁴ Thai scholars still are not willing to inherit the right to claim damages for non-pecuniary loss because they regard non-pecuniary loss as a personal matter in which won't inherit according to the law of succession.¹⁵ Any how, the provision should be amended as to not cause further confusion.

III Problem Concerning the Lack of Legal Method of Calculation

(a) Regarding the Lack of Legal Method of Calculation

The TCCC, the Liability for Damages Arising from Unsafe Products Act and other laws or regulations in tort system have no guideline concerning the legal method of calculation for non-pecuniary loss. The Court has to apply section 438 paragraph 1 of the TCCC¹⁶ and exercise his full discretion in order to determine the amount of damages for non-pecuniary loss hence with different Judges resulted in different amount of damages even if the circumstances of those cases are similar.

The study shows that in different cases but with similar circumstances, the claimants were granted different amount of damages for instance, between the Supreme Court decision nos. 247/2538 and 4859/2538.¹⁷ The first case provides that 'defendant recklessly drove and finally caused an accident; the claimant was in the car and was seriously injured. He became crippled for the rest of his life. He was awarded 137,617 Baht for his non-pecuniary loss; The latter case provides 'the defendant was a government institution who used bare wire in public place without informing the public, the claimant who got electric shock, brain damage and became paralyzed for the rest of his life. He was not awarded any damages for his non-pecuniary loss.'

Another example, comparing the Supreme Court decision nos.2580/2544and5751/2545,¹⁸ the first case provides "The claimant was under eyes surgery. With a medical malpractice, the eyes cannot close properly, the claimant was awarded 220,251 Baht for her non-pecuniary loss' while the latter case provides 'the defendant recklessly drove a bus and crashed on the claimant whom got seriously injured, his left eye got damage and cannot be cured. The defendant was awarded only 54,682 Baht! The Court indicated the reason that the latter case received only about 50,000 Baht because he did not work and is 50 years old but in case of no. 2580/2544, she received 220,251 Baht because she was a teacher. In justice, everybody should be equally compensated regardless of his age, work or social status¹⁹.

Moreover, another fact shows that the Court tends to grant damages in case of injury to life less than other cases. The study found that the estimate amount of damages in case of injury to life is equal to 700,000 Baht but in case of crippled is approximately1.2 million Baht.²⁰

This show the wrong sign that more severe damage costs less damages than the less serious one on which might lead to the improper level of care and incompetent deterrence effect.

Example Cases: Damages in Case of Injury lo Life

Mean =700,161
Highest amount =1,818,354
 Lowest arrount = 168,380

Example Gases: Damages in Case of Living Gaimants (Cripple)

Mean = 1505.726
Highest amount =9.002358
Lowest amount = 55,063

11. See Supreme Court decision nos.2816/2528 and 7611/2542.

12. With all respect to the translation, the original wording of this section uses the terms "ชอบที่จะได้" which should be interpreted as 'entitled to' instead of 'shall have rights to compensation.

13. อนันต์ จันทรโอภากร, กฎหมายว่าด้วยความรับผิดเพื่อความเสียหายอันเกิดจากสินค้าที่ขาดความปลอดภัย, 2545, หน้า161 (Anan Chantara-opakorn, Product Liability Law, (2000), p.161).

14. ศักดา ธนิตกุล,  คำอธิบายและคำพิพากษาเปรียบเทียบกฎหมายความรับผิดต่อสินค้าไม่ปลอดภัย (พิมพ์ครั้งที่2, 2553) หน้า167 (Sakda Thanitkul, The Explanation And Comparative Decisions on Unsafe Product Liability, (2d ed. 2010), p. 167.)

15. Section 1600 of the TCCC (Subject to the provisions of this code, the estate of a deceased includes  his properties of every kind, as well as his rights, duties and liabilities, except those which by law or by their nature are purely personal to him).

16. Section 438 paragraph 1 of the TCCC (The Court shall determine the manner and the extent of
compensation according to the circumstances and the gravity of the wrongful act).

 17. รายงานฉบับสมบูรณ์ การวิเคาระห์กฎหมายด้วยวิธีการทางเศรษฐศาสตร์: การคิดค่าเสียหายในคดีละเมิด,โครงการวิจัยเรื่องการวิเคราะห์กฎหมายด้วยวิธีทางเศรษฐศาสตร์, สถาบันวิจัยรพีพัฒนศักดิ์, สำนักงานศาลยุติธรรม, สถาบันวิจัยเพื่อพัฒนาประเทศไทย,ตุลาคม, 2553, table 5-3. [hereinafter The Complete Report.] (The Complete report of Law and Economics: Calculating Tortious Damages, Rapee Pattanasak Institute, October, 2010, table 5-3).

18. Id. at table 5-4.

19. Section 4 of The Constitution (The human dignity, rights and liberties and equality of the people shall be protected.); Section 6 of the Constitution (The Constitution is the supreme law of the State. The provisions of any law, rule or regulation, which are contrary to or inconsistent with this Constitution, shall be unenforceable) and; Section 30 of the Constitution (All persons are equal before the law and shall enjoy equal protection under the law. Men and women shall enjoy equal rights. Unjust discrimination against a person on the grounds of the difference in origin, race, language, sex, age, disability, physical or health condition, personal status, economic
or social standing, religious belief, education or constitutionally political view, shall not be permitted. Measures determined by the State in order to eliminate obstacles to or to promote persons' ability to exercise their rights and liberties in the same manner as other persons shall not be deemed as unjust discrimination under paragraph three).

20. The Complete Report, supra note 17, at 5-30.