Thailand Law Journal 2013 Fall Issue 1 Volume 16

* The Complete report of Law and Economic: Calculating Tortious Damages,Rapee Pattanasak Institute, October, B.E. 2553, table 5-29

(b) Regarding Recovering Punitive Damages under the Liability for Damages Arising from Unsafe Products Act

The different between the TCCC and the Liability for Damages Arising' from Unsafe Products Act is that the Liability for Damages Arising from Unsafe Products Act expressly mentions about punitive damages²¹.

This principle resulted from the Federation of Thai Industries' request; a request for a method of calculation of damages for damage 'to mental state, but such request has died in the Council because the Council found that damage to mental state has no obvious indication by which we can made the exact method of calculation and that we can always refers to the principle of section 438 of the TCCC. But the Council agrees to put the ceiling for punitive damages to prevent the affect on the insurance premium on the business operators.²²

Nevertheless, the wording of section 11(2) suggests that in awarding punitive damages, the amount of such damages shall be based on the discretion of the Court, but not to exceed twice the actual compensation. However, without the method of calculation, the actual compensation can go up to any figure. This means that the ceiling is useless. This inconsistency can be regarded as a risk for the business operators which they will choose to buy insurance. In paying insurance premium, the additional price will be added to the product's price resulted a higher price for the same goods.²³ Moreover, as the ceiling is not consistent, insurance company will increase premium and may cause the necessary producer to terminate its operation.²⁴ In contrast, if we set the ceiling as a fixed figure then what about an injury that damages goes up over such fixed figure?²⁵

IV Compartive Studies

(a) As to the Issue of Damages for Non: Pecuniary Loss in Case of Living Claimants

The author has studied English, German, Italian and French legal system. These jurisdictions have found their ways to bypass the legal restriction in order to provide full compensation. In brief, English law moved away from the physical impact, this made the scope of protection extend to nervous shock and also those secondary victims, though with some restrictions. In brief,a damage for non-pecuniary loss under English law is recoverable if the loss amounts to recognized illness regardless of whether the injured person is a primary victim or secondary victim²⁶.

German law, in contrast, grants damages for non-pecuniary loss only where it is accompanied with injury to body, health, liberty or from the immoral act.²⁷ German law only recognizes compensation for nervous shock and psychiatric illness by the reason that it affects physical being of a person (injury to health). However, it is moving away from this old approach²⁸ anyhow, no emotion is protected under the law.

Italian law links its tort law with its Constitution. Therefore, damages for any damage can be recoverable if such damage is resulted from any injury against personal right(s) guaranteed by the Constitution; the right to health or known as "Danno alia salute"²⁹ usually applied for non-pecuniary loss cases.

Under French law, all matters that amount to a disturbance in one's living conditions may be subjected to a claim for compensation under section 1382 as long as it is direct and immediate consequence of the incident.³⁰

Concerning the product liability law, these countries are member of European Countries which follow the principle of the Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (EC Directive 85/374/EEC or hereinafter referred to as the EC Directive) that left damages for non-pecuniary loss to the domestic law of each country.

The uniform concepts pulled out of these four jurisdictions are (1) damages for non-pecuniary loss that is not accompanied with physical injury are recoverable. (The scope of protection are varied.); (2) Secondary victim, either expressly or impliedly, can claim damages for non-pecuniary loss that is not accompanied with physical injury and;(3) damages for non-pecuniary loss are recoverable under the product liability law itself but they still refer to their general tort because they already provide a very wide rangeof protection.

(b) As to the Issue of Damages for Non-Pecuniary Loss in Case of Injury to Life

With regard to the studied of English, German, Italian and French legal system, damages for non-pecuniary loss in case of death is recoverable, though different principles are applied. The right to claim damages for non-pecuniary loss of the decreased in Eng land will survive the death of the deceased by the power of the Miscellaneous Provisions Act 1934,³¹ this provision can be inferred that damages for non-pecuniary loss are not regarded as an estate if there is no specific law saying so. It means that English law regards non-pecuniary loss as the deceased's right but the law specifically inherits such right to the listed-persons because the owner cannot claim compensation as he has already died.³² Moreover, English law specially grants damages for bereavement by the Fatal Accident Act 1976.³³

German law previously did not inherit the right to claim damages for non-pecuniary loss to the listed-persons but later amended its provision in order to inherit such right. However, it does not grant damages for bereavement because it regards secondary victim as the third person which shall be able to claim damages according to the case specified by laws.

For Italy, with its revolution, the right is inheritable by claiming "danno alia salute" without amending its provision. By referring to "danno alia salute" everybody is entitled to claim damages for non-pecuniary loss if the action causes damage against the right guaranteed by the Constitution.

French legal system, does not specifically said anything on the issue, French legal system allows all claims that met the requirements of its section 1382.

The similarity of the principle of these countries is that no country automatically regards damages for non-pecuniary loss as the heritage, either put the right to claim damages as the listed-persons' right or, specifically enact a special law to inherit such right.

In product liability area, the study reviews that the principle of tortious claim is used for product-liability area as well, whether it is inheritable or not will be depends on the general principle of tort law in such country. But the common frame of European countries has directed that the person who has the right to claim compensation should not limit to only the heirs but also the life-companionship.

(c) As to the Issue of Legal Method of Calculation
          
There are several methods using to determine the amount of damages for non-pecuniary loss in foreign jurisdictions. For instance, giving a range of figure for each injury called as 'Guidelines; i.e., the JSB Guidelines of England and "Schmerzensgeldtabellen" of Germany. The Italian method is a Medio-legal scale based upon a system of percentage point of each category of physical or mental impairment. This method calculates damages for non-pecuniary loss for each injury by referred to the medical valuation and also the monetary value created by the court³⁴ which reveals in a form of table. This method was inspired by the French 'calcul au point' system.³⁵ Unlike the U.S. where the amount of damages for non-pecuniary loss is still depending on the jury's evaluation.³⁶
          
Under the product liability law, many jurisdictions have set the ceiling for the amount of damages, i.e., the EC directive allows the member countries to have the maximum ceiling for damages that will be awarded in one incident. However, the ceiling must not be less than 70 million Euros for identical items with similar type of damage.³⁷ The ceiling rule is fit for industrial countries because the business operators will be able to calculate their risk through the ceiling figure.

Notwithstanding the above methods, there is another suggestion to use the 'Scenario Method' which set scenarios for the juries, to determine the amount of damages in each scenario.³⁸ Then, compare the scenario with the case actually happened. When the case is similar, the amount of damages determined by the juries in the scenario will be used to determine the amount of damages in the actual case.³⁹ However, it is hard in practice and also expensive. Moreover the scenarios will somehow differ from the case that actually happened which anyway, will lead to discretion matter.⁴⁰

The last question should be asked is that whether punitive damages should be allowed in case of damages for non-pecuniary .loss since it can be implied that the defendant is being compensated more than what he has lost.

V Possible Solutions

(a)As to the Problems of Recovering Damages for Non-Pecuniary Loss in Case of Living Claimants
There are possible ways to solve these problems. For the TCCC, it can be either introduce the new interpretation for 'any right of another person' 'injury to body' 'injury to health' or simply amend the laws, i.e., section 446. Together with this amending, the concept of secondary victim can be introduced into the section as well. In addition, for the Liability for Damages Arising from Unsafe Products Act, the rights provided in the Act should be made to the same extent as provided by the TCCC as not to cause further confusion as mentioned in the early part of this article.⁴¹

(b )As to the Problems of Recovering Damages for Non-Pecuniary Loss in Case of Injury to Life

The problems in this area may be solved by either adding the new section that specifically grants damages for non-pecuniary loss in case of injury to life or adding 'injury to life' as a kind of injury that raises the right to compensation under section 446 of the TCCC. In part of the Liability for Damages Arising from Unsafe Products Act, the old provision of section 11(1) should be amended in order not to cause further confusion; the new section shall apply the same logic as applied in the TCCC.⁴²

 (c) As to the Problem of the Lack of Legal Method of Calculation

In principle, the Guidelines and Medio-legal scale have been created by referring to the amount of damages granted in previous decisions and to medical valuation. However, economic values of a statistical life are now part of generally accepted economic methodology which continues to dominate the 'value of life' literature⁴³ therefore, the author would like to recommend combining the economists' principles and humanity perspective in order to create a new approach using to determine the amount of damages for non-pecuniary loss including damages for loss of one's life (value of life).⁴⁴ In this regard, if the method being introduced, the goal of deterrent effect will be accomplished therefore, no punitive damage is needed in normal cases, i.e., punitive damages shall be applied only in outrageous cases.

Conclusion

Damages for non-pecuniary loss in the law of torts in case of personal injuries still have gaps to be fulfilled since damages for pure non-pecuniary loss and damages for non-pecuniary loss in case of injury to life are not recoverable under the TCCC. Moreover the Liability for Damages Arising from Unsafe Products Act which was enacted in attempt to fulfill this gap has not accomplished its goal because the wording in the Act literally leads to ambiguous meaning concerning the state of 'damage to mental state' and the right to claim damages for non-pecuniary loss in case of injury to life. In this sense, the law does not provide full compensation to the victim, the link between the right protected under the law of torts and the Constitution should be made.

Nevertheless, Thai tort legal system still lacks method of calculation for damages for non-pecuniary loss which leads to inequality for the victims in different cases sharing similar circumstances and incompetent deterrence effect thus, the system should seek to find the method of calculation, a guideline, with regard to economics and human value in order to bring equality to the victims and to balance legal and social science for the best of the society.

21. Section 11 (2) of the Liability tor Damages / Arising from Unsafe products Act (In the event the facts indicate that the entrepreneurs produced, imported, or sold the products, although aware that the products were unsafe, or that the entrepreneur was unaware, hut committed gross negligence, or had awareness that the product was unsafe after production, yet imported or sold the unsafe product without taking appropriate action to prevent damages from occurring, the court shall be authorized to order the entrepreneur to pay punitive damages in addition to the amount of actual compensation stipulated by the court, which shall be based on the discretion of the court, but not to exceed twice the actual compensation. Consideration will be given to the following circum stances including the severity of the damage sustained by the damaged party, the entrepreneur's cognizance of the damages arising from the product, the time period in which the entrepreneur concealed the danger of the product, the actions taken by the entrepreneur after becoming aware that the product was unsafe, the benefits received by the entrepreneur, the financial status of the entrepreneur, efforts to alleviate the damages that occurred on the part of the entrepreneur, and the part the damaged party had in the damages that occurred).

22. ธนิตกุล, supra note 17, at 168.

23. See Sandra A. Hoffmann, W. Michael Hanemann, Torts and the Protection of "Legally Recognized"Interests, Discussion Paper, (August 2005) available at www.rff.org.

24. The Complete Report, supra note 17, at 6-8.

25. Id. at 6-19.

26. Vivienne Harpwood, Modern Tort Law, (6th ed. 2005), p. 56.

27. จิ๊ด เศรษฐบุตร, หลักกฎหมายแพ่งลักษณะละเมิด ,(พิมพ์ครั้ง 6, 2550), van 179-180 (Jeed Seadtabud, The Principle of  Tort, (6th ed. 2007), p. 179-180).

28. See the Reasoning of the Draft (Begriindung Regierungsentwurf) BT-Drucks. (Bundestagsdruck- sache-Parliament Printed Materials) 14/7752, p. 23s. (One of the four main goals in reforming German tort law is to adapt German tort law to some extent to Europeans Standards) (quoting Ulrich Magnus The Reform of German Tort Law, working paper no. 127, (April 2003), In Dret, p.3 available at www.indret.com).

29. Basil Markesinis, Michael Coester, Guido Alpa and Augustus Ullstein, Compensation for Personal  Injury in English, German and Italian Law (2005), p. 84.

30. Michel Cannarsa, Compensation for Personal Injury in France, available at www.docstoc.com and http://www.docstoc.com/docs/3830543/Compensation-for-Personal-Injury-in-France-by-Michel- Cannarsa-Researchp3, at 17.

31. Section 1(1) of The Law Reform (Miscellaneous Provision) Act 1934 (On the death of the defendant or claimant, all causes of action shall survive against, or for the benefit of, his estate except for defamation case and a claim for damages-for bereavement. However, damages will not cover exemplary damages or damages for loss of income in respect of any period after the deceased's death); This Act is active even if either the defendant or the claimant has died before the commencement of the proceeding.

32. Miscellaneous Provision Act 1934.

33. The Fatal Accident Act 1976, available at http://www.legislation.gov.uk/ukpga/1976/30.

34. Giovanni Comande, Doing Away with Inequality in Loss of Enjoyment of Life (quoting John O.Ward, Robert I. Thornton, (2009), 91 Personal Injury and Wrongful Death Damages Calculations:  Transatlantic Dialogue Contemporary Studies in Economic and Financial Aanlysis 255, at 259).

35. Basil Markesinis, Michael Coester, Guido Alpa and Augustus Ullstein, supra note 29, at 19(It is the method that damages are measured by point system fixed by medical profession. Point 1 represents the lowest disability and point 100 represents the permanent disability. The amount given will be calculated from the point of invalidity vary according to standard factors e.g., age,
sex, etc. of the-victim).

36. Supra note 34.

37. Chantara-opakorn, supra note 13, at 154.

38. The Complete Report, supra note 17, at 6-24.

39. Id.

40. Id.

41. See Isara Lovanich, Personal Injury and Damages for Non-Pecuniary Loss in the Law of Torts and the Product Liability Law, Master Degree Dissertation, Faculty of Law, Thammasat University (on file with Sanya Dharmasakti Library, Thammasat University) (2011).

42. Id.

43. W. Kip Viscusi, The Value of Life: Estimates With Risks by Occupation and Industry, Discussion Paper No. 422, (May 2003), p. 1.

 44. See Lovanich, supra note 41.