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Personal injury and damages for non-pecuniary loss in the law of torts and the product liability law1
By Isara Lovanich
1. Introduction
Under the law of torts, there are state of damage and state of compensation. As per such consideration, before granting damages one act must firstly qualify as a state of damage or so called "tortious act" Otherwise, the state of compensation may be applied in order to grant damages only where specially indicated by the law. That is where the law has made loopholes in
case of recovery damages for non-pecuniary loss that is not accompanied with injury to body, health or liberty since section 446 of the Thai Civil and Commercial Code (TCCC) does not specifically indicate non-pecuniary loss, not accompanied with injury to body, health or liberty, as a state of compensation. Also, it does not mention compensation for non-pecuniary loss in case of injury to life. Nevertheless, for those already mentioned within section 446, there is no device provided by the law in order to calculate damages for non-pecuniary loss. These issues bring about our present concern as follows:
I Problems Concerning Recovering Damages for Non-Pecuniary Loss in Case of Living Claimants
(a) Under the Thai Civil and Commercial Code
Under Thai tort law, the section that deals with the evaluation whether the act is a tortious act or not is section 420 of the TCCC which provides:
"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 this provision, damage that falls into the type of a violation of the individual's rights are of those which concern personal integrity and property in which section 420 clearly states that they are (1) injury to life (2) injury to body and health (3) injury to liberty (4) injury to property and (5) injury to any right of another person. The ambiguous interpretation still remains for wording 'any right of another person' whether it shall mean only 'absolute rights' guaranteed by the law or 'any right of a person' existing and guaranteed by any law which need not be only absolute rights.
Then, according to Thai Court's present approach,2 if the injury is not qualified as a state of damage under section 420, one will be able to claim damages for non-pecuniary loss only as per section 446 paragraph 1#3
of the TCCC i.e., in case such non-pecuniary loss is accompanied with injury to body, health or liberty.
Yet, after the new Liability for Damages Arising from Unsafe Products Act is enacted, the case of Dr. Jermsak's has shown the intention of the Court in trying to move away from the old interpretation4, i.e., to grant damages for non-pecuniary loss which is not accompanied with injury to body, health or liberty by referring to the definition provided in the Liability for Damages Arising from Unsafe Products Act. However, it might not be the right solution since Dr. Jermsak's loss is only emotions where law does not aim to compensate. In any event, the interpretation and future approach should be certain otherwise it will be an obstacle for the claimant because section 142 paragraph 1 of the Thai Civil Procedure Code (TCPC)5 made, referring to this article, it the claimant's duty to make a proper request since the Judge cannot rule in favor more than what the claimant has requested in the motion
(b) Under the Liability for Damages Arising from Unsafe Products Act
The Liability for Damages Arising from Unsafe Products Act section 46 has specifically defined damage to mental state as another head of damage along with its definition and, according to the Council of the State explanation, the purpose of indicating the definition of damage to mental state is to make this type of damage be absolutely recognized in which to guide the Court of the enforcement for this kind of injury7.
From the explanation of the Council of the State, it can be inferred that the status of damage to mental state in section 4 of the Liability for Damages Arising from Unsafe Products Act is similar to section 420 of the TCCC because the reason for including damage to mental state in the definition of damage is to guarantee that damage to mental state is qualified as another state of damage. However, section 4 of the Liability for Damages Arising from Unsafe Products Act is only the definition. It does not constitute the right to compensation. Whether damage to mental state in the Liability for Damages Arising from Unsafe Products Act is recoverable, the claimant has to refer to section ll (l) of the Liability for Damages Arising from Unsafe Products Act. It then raises a question whether damages for damage to mental state in section 11(1) of the Liability for Damages Arising from Unsafe Products Act has the same status as damages for non-pecuniary loss in section 446 of the TCCC. Or does it share the same status with 'any right of another person' in section 420 of the TCCC?
In addition, the survey of Thai Supreme Court's decisions8 reveals that damages for non-pecuniary loss that are recoverable under section 446 of the TCCC are those of loss of ability, loss of beauty, loss of good health, loss of good personality, loss of organ, pain and suffering. In the other hand, section 4 of the Liability for Damages Arising from Unsafe Products Act provides that 'Damage to mental state means pain, suffering, fear, anxiety, sorrow, shame or other similar mental damage.9
With regard to section 11 paragraph 1 which states that 'in addition to compensation for violations of the Civil and Commercial Code...the Court is empowered to award damages for damage to mental state. This leads to the interpretation that section 420 of the TCCC does not include damage to mental state as a state of damage therefore damages for damage to mental state in the Liability for Damages Arising from Unsafe Product 's Act which was enacted to fulfill the gap in section 420 of the TCCC does not accomplish its goal because the Liability for Damages Arising from Unsafe Products Act itself determines as if damage to mental state is outside the scope of protection under section 420 of the TCCC. It also can lead to the interpretation that damage to mental state is wider than non-pecuniary loss without any justification.
In trying to identify the definition of non-pecuniary loss that is recoverable, under section 446 of the TCCC, we must refer to the survey of Thai Supreme Court's decisions10, the author found that damages for non-pecuniary loss which is recoverable under section 446 of the TCCC are losses that affect the well being of a person, regardless of whether it affects mental state of a person or not. The Court always rejects claims which refer to damage to mental state of a person but the Court has always granted damages for the damage that cause detriment to the living, a well being of a person. This is different from damage to mental state in the Liability for Damages Arising from Unsafe Products Act because such Act pays attention to damage to mental state instead of damage to the well being of a person as defines in its section 4 which also includes emotions such as fear, sorrow and shame. If the intention of the Council of State is to use the definition of the Liability for Damages Arising from Unsafe Products Act as a guideline to grant dam ages for non-pecuniary loss under the TCCC, it must be inferred that the TCCC is ready to grant damages for emotions as well. |
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1. This article is submitted in partial fulfillment of the requirements for the degree of Master of Laws in Business Laws (English Program), Faculty of Law, Thammasat University,2011.
2. See Supreme Court decision nos.7611/2542, 1550/2518, 477/2514, 292/2502 and 789/2502.
3. In case of injury to the body or health of another, or in the case of deprivation of liberty, the injured person may also claim compensation for the damage which is not a pecuniary loss. The claim is not transferable, and does not pass to the heirs, unless it has been acknowledged by contract, or an action on it has been commenced.'
4. Consumer black case no. 1/2551 (the claimant successful in claiming damages for pure
non-pecuniary loss as he suffered nervous during his flight because the airline service omitted to search its passengers by the defective detect automatic machine according to the airline regulations)and(Manager Newspaper Report)available at http://www.decha.com/main/show Topic.php?id=3047.
5. A judgment or order of a Court disposing of a case shall decide on every claim in the plaint, but no judgment or order shall be given for anything in excess of or not included in such plaint
6. Damage' means damage arising from an unsafe product, regardless of whether the damage is to
life, body, health, hygiene, mental state, or assets. This shall not include damage to the unsafe
product.
"Damage to mental state' means pain, suffering, fear, anxiety, sorrow, shame or other similar
mental damage."
7. เอกสารประกอบการพิจารณา ร่างพระราชบัญญัติความรับผิดต่อความเสียหายที่เกิดขึ้นจากสินค้าที่ไม่ปลอดภัย พ.ศ.... จัดทำโดยสำนักงานคณะกรรมการกฤษฎีกา,สิงหาคม, 2550,หน้า 10 [hereinafter The Council of State's Minute] (Document preparing in the drafting of the Liability for Damages Arising from Unsafe Products Act B.E. ..., the Council of State, August, 2550, p.10.
8. Supreme Court decision, supra note 2.
9. Anan Chantara-opakorn, Personal Injury and Damages for non-pecuniary loss in the Law of Thailand, Law in The Changing World (Presented at the 4th international conference on "Law in the Changing world" organized by Faculty of Law, Thammasat University) (9th December 2009) available at law.tu.ac.th/news/2552/Nov/News.pdf.
10. Supreme Court decision, supra note 2. |
