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