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164 Vol.4No.1:2012
The Non-Pecuniary Damages in Wrongful ActsCausing Bodily Harm and Death:
The Comparative Study on US and Thailand Laws
Worrawong Atcharawongchai1
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
victimswhileopponentsclaimthatthisdamageisnotjustifiedduetothefactthatthe
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.Thecomparativestudywillbeusedintensivelythroughoutthearticleinorderto
findoutthedifferencesbetweenbothcountriesandexaminethepossibilityofapplying
andadjustingsomestrengthoftheUSnon-pecuniarydamagestoThailand.Todoso,
1 Judge of the Chiang Mai 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-KentCollegeofLaw,US.)(OfficeoftheJudiciaryScholarship)
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thefirst sectionof this articlewilldelineate theconceptof tort law inThailandand
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
exampleoftheThailandSupremeCourtdecisionontheinjurycausingbodilyharmand
deathwillbeshown.Secondly,theUSnon-pecuniarydamageswillbeexaminedinthe
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
analysisonwhetherandtowhatextentThailandshouldadoptsomeconceptoftheUS
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
usefulforcomparativestudyinthefollowingsection.Thissectionwillfirstlyshowthe
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.
166 Vol.4No.1:2012
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.
Section420“Apersonwho,willfullyornegligently,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.
Whenthetort liability isestablished, thenextquestioniswhatkind, towhat
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.2
2 Section 438 of Thailand Civil and Commercial Code
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Personal injury claim
Personalinjuryisdefinedasthelegaltermforaninjurytothebody,mindor
emotion as contrary to the injury to property.3 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
monetaryvaluesuchaspainandsuffering,disability,disfigurement,lossofenjoyment.
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 death4, compensation for 3 Wikipedia see http://en.wikipedia.org/wiki/Personal_injury4 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.
168 Vol.4No.1:2012
the third party for loss of the injured party’s services5, compensation for the third party for
loss of the legal support.6Sincethecivilandcommercialcodeprovideonlythesesixtypes
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 suffering from the injury prior to death are not included in the actionable damages.7
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.8
In term of injury causing bodily harm, only the four following types of
damagescanberecovered:theexpensesandthedamagesfortotalorpartialdisability
to work, for the present as well as for the future9, compensation for the third party for
loss of the injured party’s services10, and non-pecuniary damages11. The “expenses” is
5 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.
6 Section 443 of Thailand Civil and Commercial Code7 Thailand Development Research Institute .2010. “Economic Analysis of Law: the Assess-
mentofDamagesinWrongfulAct”theproposaltotheofficeofjudiciaryofThailandp.4-158 Ibid 9 Section 444 “ In the case of an injury to the body or health, the injured person is entitled to
receive reimbursement of his expenses and damages for total or partial disability to work, for the present as well as for the future
If at the time of giving judgment it is impossible to ascertain the actual consequences of the injury, the Court may reserve in the judgment the right to revise such judgment for a period not exceeding two years.”
10 Section 445 of Thailand Civil and Commercial code11 Section 446 “In the case of injury to the body or health of another, or in the case of depriva-
tion of liberty, the injured person may also claim compensation for the damage which is not pecuniary loss. The claim is not transferable, and does not pass to the heirs, unless it has been acknowledged by contract, or on action on it has been commenced.
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broadlydefinedandincludeanyexpensesthatinjuredpartyhadpaidduetotheinjury.
Significantly, the plaintiff normally claims for themedical expenses that have been
incurred from the wrongful act, including the medical expenses in the future in the case
that continuous medical treatment is needed.12 However, other necessary expenses are
claimable such as the expenses for hiring the person taking care of the injured, traveling
expenses of care takers.13Nevertheless, the SupremeCourt ofThailand rejected the
claim for parent’s lost earning due to taking care of their son and held that such expenses
were out of the scope of “the expenses”.14 In terms of the damages for total or partial
disability to work, it means the loss of earning that the injured party is suffered from the
injury.15 This type of damage may be totally lost in a case that the injured is unable to get
back to work such as in the case of quadriplegic.16 Because of the name of the damages,
it may be confused with the disability that is non-pecuniary damages, but, in fact, it is
distinct damage in which the injured party can claim both separately.17
The non-pecuniary damages in wrongful act
In Thailand, non-pecuniary damage is granted only for some injuries, namely
bodily harm and deprivation of liberty18. As mentioned, the scope of this article is
devoted to the personal injury case; the non-pecuniary damages for injury to the
libertyare thus reserved for thenext study.Thispartwill explain thedefinitionand
types of non-pecuniary damages, and the method of assessment. Then, it will present
12 The Decision of the Supreme Court No.4859/253813 The Decision of the Supreme Court No.3345/253814 Ibid15 The Decision of the Supreme Court No.516/255116 Ibid17 The Decision of the Supreme Court No.6303/254718 Supra Note 11
170 Vol.4No.1:2012
the problem resulting from the current mechanism of the non-pecuniary damages in
Thailand. This part eventually will give the example of the decision of Thailand court
regarding the case of wrongful act causing injury to death and bodily harm in order to
provide comprehensive understanding on the non-pecuniary damages in Thailand.
The meaning of the non-pecuniary damages is still controversial due to the fact
that theCivilandCommercialCodedoesnot identify theexactdefinitionand types
of the non-pecuniary damages. However, many scholars define the non-pecuniary
damages as the damages that cannot be calculated in the monetary value.19 In addition,
thedecisionoftheSupremeCourtofThailandcanbroadentheunderstandingofnon-
pecuniary damages because it names many types of non-pecuniary damages such as the
damages regarding loss of emotional feeling and enjoyment due to the disability caused
by wrongful act20, pain and suffering21, disfigurement22. Each type of non-pecuniary
damages can be claimed separately. For example, the plaintiff who got disability caused
by the wrongful act can claim both the pain and suffering and the loss of enjoyment.23
In assessment of damages, the plaintiff generally has the burden of proof to
show the damages sustained, both pecuniary and non-pecuniary damages. The court
will determine the damages according to the evidence of damages shown. However,
although the plaintiff is unable to prove the damages or show the extent of damages
sustained, the court, pursuant to section 438, has discretion to determine the damages
19 Suphanit, Susom.2007. “Tort law” Bangkok: faculty of law, Chulalongkorn University p.26520 The Decision of the Supreme Court No.247/199521 The Decision of the Supreme Court No. 3344/199022 The Decision of the Supreme Court No.128/197923 The Decision of the Supreme Court No.247/2538, 75/2538
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according to the circumstance and gravity of the wrongful act.24 The failure of plaintiff
to show damage sustained is more aggravated in the case of non-pecuniary damage
than pecuniary damages due to the fact that it is very hard and subjective to assess to
what extent the injured party sustained. This problem in the current mechanism merits
consideration in the subsequent part.
The problems with the current mechanism of non-pecuniary damages
Liability for non-pecuniary damages is the area of damages which attracts a
lot of critics from not only scholars in Thailand but also worldwide. The critical issue
on the non-pecuniary damages where the scholars have spent a lot of time and effort
for discussion is the issue whether the non-pecuniary damage should be granted. This
article will take care of such issue in the last part subsequent to comparative study on
non-pecuniarydamagesinbothUSandThailand.Forthispart,thearticlewilldelineate
the current distinct problems found in the case of non-pecuniary damages compensated
on the personal injury causing death and bodily harm in Thailand.
First of all, non-pecuniary damage, according to section 446, is entitled to the
party only in the case of bodily harm but negated in the case of death. The absence of
non-pecuniary damages in the case of injury to death brings about the situation that the
injured party is left unfairly uncompensated. An anomalous outcome may arise due to
the fact that the damages in the case of bodily harm are likely to be greater than the
damages in the case of death. This will distort the motivation of people to utilize the
24 Section 438 “The court shall determine the manner and the extent of the compensation ac-cording to the circumstances and the gravity of the wrongful act
Compensation may include restitution of the property of which the injured person has been wrongfully deprived of its value as well as damages for any injury caused.”
172 Vol.4No.1:2012
proper care because the reasonable people will lack the motivation to take more care to
avoid death than to avoid bodily harm.25
Secondly,inthecaseofdeathwheretheinjuredpartyisnotimmediatelydead,
hemaybeinflictedwithpainandsufferingpriortodeath.Nonetheless,ThailandCivil
and Commercial law does not provide the injured party with the right to claim such pain
and suffering damages prior to death. This may constitute the unfairness to the injured
party and similarly, in economic sense, lead to the distortion of proper motivation.
Thirdly, the death or bodily harm of the injured person may cause serious
emotional harm to the spouse, child, or other person in close familiar relationship with
the deceased. However, the Civil and Commercial code stipulates the non-pecuniary
damages solely to the injured person but does not allow others to claim for non-pecuniary
damages they suffer from the beloved’s or the family member’s death.26 This seems to
be unfair for them suffering without compensation.
Finally, the problem of the assessment of non-pecuniary damages is also
immense. The non-pecuniary damage is evaluated by the court’s discretion which
basically is utilized to determine such damage according to the circumstance and the
degree of wrongful act; however, the amount of damage is circumscribed by the requested
amount in the plaint by the injured party. The result that the amount of the granted non-
pecuniary damages is incongruent among the courts, despite similar fact patterns, and
sometimesinsufficienttoadequatelycompensatetheinjured,isunavoidableduetothe
fact that each judge has different opinion and experience and has scope of authority to
25 Thailand Development Research Institute .2010. “Economic Analysis of Law: the Assess-mentofDamagesinWrongfulAct”theproposaltotheofficeofjudiciaryofThailandp.6
26 The Decision of the Supreme Court No.780/2502
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fully grant damages only at the requested amount.
Thailand Supreme Court decisions regarding wrongful act causing death
and bodily harm
To be more comprehensible on the non-pecuniary damages in Thailand, this
section will compare two court decisions on the wrongful act causing death and bodily
harm respectively. For the sake of easier understandability, the two cases both involve
the same fact of a car accident resulting in bodily harm in one case and death in the
other.
ThedecisionoftheappealcourtNo.1011/2549isthemostrecentnotoriouscase
regarding the wrongful act causing death. In this case, Piyada, the deceased, studying in
the last year of the faculty of management, Assumption University, was waiting for the
defendant’s omnibus at the bus stop. The bus later approached and took Piyada; however,
the driver, the defendant’s employee negligently drove off hastily without shutting the
automatic door. As a result of the propulsion of the omnibus, Piyada fell off the car and
her head was violently crushed against the street, subsequently causing her death. Her
father brought the lawsuit against the defendant claiming for such statutory damages
as funeral, other necessary expenses, medical expense, and loss of the legal support in
Piyada’s life expectancy of 20 years. The total claiming damages is 12,081,211 bahts.
The trial judge held that the defendant was negligent and granted the total damages to
plaintiff10,747,000bahts.Thisamountofdamagescamemainlyfromlossofthelegal
support in which the trial court determined as 46,000 per month in 20 years, totaling
11,040,000 (46,000×12×20), plus funeral or other necessary expenses and medical
expenseprior todeath,reducedthepaid insurancecompensation750,000bahts.The
174 Vol.4No.1:2012
defendant appealed. One of the appealed issues is that the loss of legal support was
excessive. The appeal court opined that the deceased is well educated, knowledgeable
inbothEnglishandJapaneselanguage,andhadaplantostudyinJapan,which,ifshe
succeeds in her plan, she can earn money at least 46,000 bahts a month. Therefore, the
Appealcourtaffirmedthetrialcourt’sdecisionthatthelossoflegalsupportshouldbe
46,000bathsamonthin20years.ThiscaseisnowpendingintheSupremeCourt.
IntheSupremeCourtdecisionNo.6303/2547,thefactinthiscaseissimilarto
the previous one. It is the case regarding the wrongful act of the omnibus driver who
negligentlydroveoffthebusstopsoabruptlythatKeerati,attheageof6,fellofthe
bus and was run over by the omnibus, causing him disability and serious injury. His
father brought the lawsuit against the driver and his employer claiming for damages of
12,626,200.38 bahts, composed of the medical expenses and the damages for total or
partial disability to work, for the present as well as for the future, and non-pecuniary
damages. In the respect of non-pecuniary damages, the court reasoned that, according
totheexpert’stestimony,Keeratiwillbedisabledforeverandheevencannotexcrete
himself. This harsh result ruined his life and future. The plaintiff, therefore, is eligible
for, according to section 444, for the damages for pecuniary lost earnings and the pain
and suffering caused by such disability. These damages are not overlapping and plaintiff
is entitled for both of them in aggregate of 6,900,000 bahts. Plus the medical and other
expenses,thetotalamountofdamagesinthiscaseis8,611,370.50bahts.
ItshouldbenotedthatthefirstcaseinvolvingdeathistheAppealCourtdecision
whilethesecondcaseinvolvingbodilyharmistheSupremeCourtdecision.Thereason
to raise these two cases as the example is that these cases are similar in fact pattern and
theyaresomeofthemostrecentdecisionsonnon-pecuniarydamages.Thefirstcase
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does not deal with the non-pecuniary damages due to the fact that such damage cannot
be claimed by law; therefore, the plaintiff does not request it on the claim and the court
does not need to mention it in its decision. The second case, on the other hand, raised
the issue of non-pecuniary damages as the law permits. However, it should be noted that
theSupremeCourtgrantedboththedamagesforlostearningsandpainandsuffering
caused by such disability in total amount of money, 6,900,000 bahts. Notice should also
beaddedthat theSupremeCourt in thesecondcasegrantednon-pecuniarydamages
throughthediscretionbutitisnotobviousinthedecisionabouthowtheSupremeCourt
reached such amount of pain and suffering. The court only reasoned that due to the fact
that thedisabilitywill last foreverand ruinedKeerati’s life, sosuchamountofpain
and suffering should be granted. The last notice should be given that most of the cases
of bodily harm is normally granted more total damages than the case of death because
the former provides more types of claimable damages than the latter. It also requires
more continuing medical expenses than injury involving death which involves solely in
claimingforthemedicalexpensepriortodeath.Forthisreason,thefirstcaseseemsto
be irregularly high compared to other cases with the same fact. However, in my view,
the substantial amount of damage is caused by defendant’s egregious wrongful act.
The fact that the accident is related to the omnibus that is regarded as the major public
transportation of people in Bangkok, Thailand attracted a lot of public criticism about
badly negligence of the driver, and raised the concern about the safety of the everyday
bus commuters. Furthermore, the deceased is the innocent student with future prospect
if she can live longer. Consequently, although the precedents show that the courts have
been reluctant to grant the high amount of loss of legal support in the case that the
deceased is only student and has no job at the time of death, the Appeal court in this
case indirectly and enormously increase such loss of legal support, in order to impliedly
punish the defendants for their negligently egregious act. This method of increasing loss
176 Vol.4No.1:2012
of legal support may be viewed as the implied punitive damage. Nonetheless, this case
stillhastowaitforthereviewoftheSupremeCourt.
NON-PECUNIARY DAMAGES IN THE US
Before exploring the conceptof theUSnon-pecuniarydamage, it shouldbe
notedattheoutsetthatthereisahugedifferencebetweenThailandandUSlegalsystem,
whichmay bring about conflicting idea about the concept andmethod of the non-
pecuniarydamages.Firstly, itshouldbenotedthat theUSlawonthenon-pecuniary
damages is, unlike Thailand, not uniform rule throughout the states. Different states
have their own rule on the non-pecuniary damages. For example, some states may allow
recovering loss of consortium while others may not. Therefore, this article will provide
the general concept about the non-pecuniary damages, and if possible, will delineate the
difference of each concept of non-pecuniary damages among the states.
AnothernoticethatshouldmeritourconsiderationisthattheUSlegalsystem
is so distinctive in that the jury, as the trier of fact, plays a key role in determining the
damages. The judge may give the jury instruction about how to impose each kind of
damages and has limited power to decrease or increase amount of damages granted
by jury, except for the case that such amount is so much or little that it shocks the
conscience.27TheroleofjuryindeterminingthedamagesintheUSismuchdifferent
from Thailand where the judge has the sole power to grant damages. As a result, when
the problem of assessment of non-pecuniary damages is mentioned, it should be kept
in mind that a group of lay man, so called jury, is the determiner of the damages, which
27 Shoben, W Elaine, Tabb M. William, and Janutis M. Rachel. 2007. Remedies: Cases and Problems 4th edition Foundation Press p.556
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may constitute the different problem as it will later be discussed.
Lastly, the procedural rule on the damage claim is also different in Thailand
andUS.InThailand,asmentioned,theinjuredpartywillbegrantedtheamountofnon-
pecuniary damages not exceeding their request on the claim. On the other hand, in the
US,basedontheresearchonavarietyofcases,theinjuredparty’slawyercanintroduce
the range of the possible amount of non-pecuniary damages; however, the jury is not
circumscribed on that amount and can independently grant more or less than that. This
differenceinsomesituationsmayinfluenceontheamountofgranteddamages.
In this section, I will focus on non-pecuniary damages in the injury causing
bodily harm or death. To do so, I will divide the non-pecuniary claims into two parts,
bodily harm and death, and further divide into the claim by the injured party and the
third party. The article will later explain how the assessment of non-pecuniary damage
ismade.Then,itwillproposepossibleproblemsintheUScurrentlawonnon-pecuniary
damages. For the sake of comparative study, the cases with similar facts to the above-
mentioned Thailand case will be shown.
Non-Pecuniary damages
Non-pecuniarydamagescanbedefinedasalosswhichisintangibleandwhich
lack the market value.28 In theUS, each statehas their own state common tort law,
which may have the different concept of the non-pecuniary damages. In fact, each state
may describe or identify the different types in different ways. Given the literature,
28 DonnaBenedek1998“Non-PecuniaryDamages:Defined,Assessed,andCapped”32R.J.T.607
178 Vol.4No.1:2012
court decisions and scholar opinions, the non-pecuniary damages in many states
are collectively called as pain and suffering; however, other states provide the
non-pecuniary damages in broad sense where the pain and suffering is regarded as
merely one of the non-pecuniary damages. There are many categories of pain and
suffering; however, Viscusi divides them into four following categories.
“1)Tangiblephysiologicalpainsufferedbythevictimatthetimeofinjuryand
during recuperation, a period that may be lengthy but that is more often brief.
2)Theanguishandterrorfeltinthefaceofimpendinginjuryordeath,bothbefore
and after an accident.
3)Theimmediateemotionaldistressandlong-termlossofloveandcompanionship
resultingfromtheinjuryordeathofaclosefamilymember,soknownintheUS
as “loss of consortium”
4)Mostimportant,theenduringlossofenjoymentoflifebytheaccidentvictim
who is denied the pleasures of normal personal and social activities because of
his permanent physical impairment, a loss of which may not be perceived by
individuals who suffer brain damage.” 29
Non-pecuniary damages in injury causing to bodily harm
In the case of injury causing bodily harm, the physical pain and suffering damages are
generally recognized as personal damages in personal injury cases, and thus the complaint does
not need to allege pain and suffering in order to present evidence of it.30 Apart from the physical
pain and suffering damages, most states also enable the injured party, although different in a
29 Viscusi, W. Kip. (1996) “Pain and Suffering: Damages in Search of Sounder Rationale” Michigan Law and Policy Review 1: 141-177
30 Supra note 20 p.527
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different kind of damages, to separately claim other non-pecuniary damages such as the mental
painandsuffering,lossofenjoyment,disfigurement,disability Richarson v Chapman, 676
N.E.2d 621,626(Ill.1997), Frankel v United States, 321 F.Supp 1331.
Regarding the third party claim, the derivative action for loss of consortium is
widelyavailableforspouses.LossofconsortiumisdefinedinGate s v Foley, 247 So.2d
40 (Fla.1971) that “the companionship and fellowship of husband and wife and the right of
each to the company, cooperation and aid of the other in every conjugal relation. Consortium
means much more than mere sexual relation and consists, also of that affection, solace,
comfort, companionship, conjugal life, fellowship, society and assistance so necessary to
a successful marriage.” For other family relationship, however, it is not consistent among
thejurisdictionsaboutthescopeoflossofconsortiumclaim.Somejurisdictionsdoesnot
recognize a child’s right to recover consortium damages for injured parent while other
jurisdiction does. By the same token, some jurisdictions grant parents for the consortium
claim, or loss of society against those who injure their child while others do not.31
In addition the loss of consortium, the third party, in some states, may claim the
mental distress once she is suffered by witnessing an accident involving a loved one, or
once she is terrorized by a situation threatening serious injuries but none results.32 The
general rule is that the third party can claim for negligently caused distress on condition
that there must be a physical injury and the third party must be in the zone of danger,
although in a few states the zone of danger is not required.33
31 Ibid p.52832 Ibid p.68833 Ibid p.689
180 Vol.4No.1:2012
Non-pecuniary damages in injury causing to death
In the case of injury causing death, although there are a lot of discussions against
pain and suffering in the case of death, it is generally recognized that the claim for the
decedent’s pain and suffering prior to death is allowed through two major Acts.
Firstly,theSurvivalActsgenerallyhaveprovidedthatcertainofadecedent’s
causes of action survive the death and become the claims of the estate which the
decedent’s personal representative may pursue. This Act is designed for preventing
the situation in which a decedent had initiated a legal action but, due to the death of the
plaintiff, the case would be dismissed.34 This practice was unfair to the decedent and
her heirs and resulted in an undeserved windfall to the defendant.35 The application of
survival statutes to cases handles this problem by which the subsequent death will not
affect the pre-existing claims for pain and suffering. Damages under these survival acts
have ranged from medical expenses resulting from the injury, lost income pain and
suffering prior to death as well as, in some jurisdictions, loss of enjoyment of life.36
Despite the fact that most states widely recognize the claim for the pain and suffering
damages prior to death, with the exception in few states, most of them do not recognize
the non-pecuniary damage claim subsequent to death due to the fact that the injured
is already dead and the granting such damages to the decedent’s heir is undeserved
windfall.37
Secondly, regarding the third party claim, theWrongfulDeath statutes have
34 Wex S. Malone.1965. “The Genesis of Wrongful Death”, 17 Standard Law Review 104335 Ibid36 Ibid 37 Supra note 18 p.6-2
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provided a cause of action for those injured by the death of the decedent, usually the
spouse and children.38UnderthisAct,Damagesisconsistedoflostsupport—income
of the decedentwhichwould have benefitted the plaintiff—and loss of consortium.
However, the scope and kind of damages may be varied in different states. Like the case
of injury causing to bodily harm, the third party also can claim for the mental distress
from witnessing an accident involving a loved one under above-mentioned condition.
Assessment of Non-pecuniary damages
Itisverydifficulttoassessthepainandsufferingdamagesduetothefactthat
it is subjective, fact dependent with no reference on the market value.39 The extent of
the pain and suffering damages seems to rely on how much the injured feel or perceive
thepain.Alotofdiscussionismadetofindoutthemostreliablemethodologytoassess
suchdamages.IntheUS,theassessmentofthepainandsufferingdamagesisassigned
to the jury. The plaintiff’s counsel may show the evidence of pain and suffering through
the testimony of the victim’s loved ones or sometimes the expert testimony for future
physicalpain.Shemayconvincethejurybyusingargumentsabouttheactivitiesthat
the plaintiff will never again be able to engage in, or the pain she will feel, minute
by minute, hour by hour, and day by day see Richardson v Chapman, 676 N.E.2d
621,626(Ill.1997), Frankel v United States, 321 F.Supp 1331. Consequently, the jury’s
assessment of damages will be based upon the credibility of the victim, her family, and
expert witnesses called by the parties.40
38 David W. Leebron.1989.“Final Moments: Damages For Pain and Suffering Prior to Death” 64 New York University Law Review 256
39 Ibid40 Ibid
182 Vol.4No.1:2012
However, in many jurisdictions, the courts have refused two kind of non-
pecuniary assessment. Firstly, the court does not permit the golden rule in which the
assessment based on asking jury to award damages in an amount they would want for
theirownsufferingoritsavoidanceinthedisability,disfigurement,physicalpain,and
mental suffering.41Secondly,thecourtofmanyjurisdictionalsodeclinetheperdiem
argument in which the plaintiff’s attorney propose a certain amount per day of suffering
and then have the jury multiply that amount by the total number of days the plaintiff has
endured suffering.42
In fact, the jury is given with no instruction and guideline for making the
assessment of damages. The fact that the court provides jury with the jury instruction is
unhelpful for jury’s assessment of damages.43 The typical jury instruction for pain and
sufferingsimplyreadsasfollows:
“The guide for you to follow in determining compensation for pain and suffering,
if any, is the enlightened conscience of impartial jurors acting under the sanctity of your
oath to compensate the plaintiffs with fairness to all parties to this action.”44
Whenjurygivetheverdictondamages,itisinpracticeconclusiveduetothefact
thattheconstitutionprohibitscourtstomakearevisiononfactualfindingbyjury.Thesole
exception is that the court can disturb jury verdict only based on the fact that such award
is “excessive” or “shock the judicial conscience”, or “is obviously the result of passion
or prejudice see Coulthard v Cossairt, 803 P.2d 86,92 (Wyo.1990). The reviewing court
41 Richard W.Wright.2010. Basic Principles of Liability “Chapter 9: Damages” p.69842 Ibid 43 Supra Note 18 p.6-544 G. Douthwaite.1981., Jury Instructions on Damages in Tort Actions 274 referred in Supra
Note 31
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has two methods in disturbing the jury verdict based upon the concept of addititur and
remittiter. In remittitur, if the excessive award is found, the reviewing court will provide the
plaintiff with option to accept the remitter of verdict or seeking a new trial on damages.45
On the other hand, in addititur, the plaintiff can seek review of a damage award if she
believes that a jury verdict is inadequate. However, the reviewing court will disturb jury
verdictonlyiftheverdictfailstoincludeanelementofdamagethatwasspecificallyproven
in an uncontroverted amount or if, viewing the evidence in the light most favorable to the
defendant, the verdict fails to award the plaintiff a substantial amount of compensation for
pain and suffering See Hewett v Frye, 184 W. Va. 477, 401 S.E.2d 222(1990). If inadequacy
of damages is proved, the court has authority to order an addititur, increasing the verdict by
the amount necessary to render an adequate verdict.46
The problems on the current mechanism of non-pecuniary damages
As mentioned above, since the non-pecuniary damages has no monetary
equivalent and no clear guideline is given, a jury’s assessment of non-pecuniary
damages seems to be unavoidably arbitrary.47 This arbitrariness of jury is normally
happen considering that the assessment of non-pecuniary damages falls on the group
of layman’s shared common senses and opinion on the damages. However, the main
problem based on the nature of jury arbitrariness is the consistency of the amount
of damages. The cases with similar fact pattern may be granted by jury the different
amount of non-pecuniary damages, which brings the issue of equity and fairness. In
addition, such inconsistency of the assessment of non-pecuniary damages also leads to
45 Supra Note 20 p. 55646 Ibid p. 55747 Harry Zavos.2009. “Monetary damages for nonmonetary losses: An integrated answer to the
problem of the meaning, function, and calculation of non-economic damages” 43 Loyola of Los Angeles Law Review
184 Vol.4No.1:2012
the following problems. First of all, the current assessment of non-pecuniary damages
leads to the increasing administrative costs such as lawyer fee or other court expenses.
Once the jury has no prior experience in assessing the non-pecuniary damages as well as
the absence of clear rule or methodology in guiding jury how to make the non-pecuniary
assessment, it is unsurprised that the administrative cost is higher because the jury needs
more time to learn and understand the case prior to granting the verdict on the damage
award.48 Another problem permeated from the current assessment is the improper extent
of the non-pecuniary damages. The jury, when given with no clear rule and guidance,
is easily induced to determine the large amount of non-pecuniary damages. This may
lead to the situation that the amount of damages is so much that the insurance company
is unable to cover it and put the burden on the consumer in the future by increasing
the insurance premium or refuse the insurance.49Suchsituationmayarguablyhavethe
potential negative effect on the health cost of people due to likelihood that if the doctor
is at risk to be liable with the large amount of non-pecuniary damages in the malpractice
case, she will increase the treatment cost or more adversely decline for treatment.50
Lastly, the current approach of the assessment of non-pecuniary damages may bring
about the unpredictability.51 Due to the assessment of damages relying heavily on the
jury common sense, the amount of non-pecuniary damages is likely to be varied even in
thecasewiththesimilarfactanddegreeofinjury.Suchunpredictabilitymayobstructthe
concept of the optimal deterrence. Under the economic sense, the individual who know
exactlythebenefitsandcostofeveryactiontheyaregoingtoundertakewillweighthem
to determine whether the intended action is advantageous for their utility.52 For example,
48 Supra Note 18 p.6-749 Ibid p.6-850 Ibid 51 Ibid p.6-1152 Faure Michael.2009. Tort Law and Economic 2nd edition Cheltenham: Edward Elgar
Publishing Limited p.218
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assuming that A is late to attend the most important meeting, she can choose to drive the
car very fast to attend the meeting in time. However, as a reasonably behaving person,
she would predict how much damages she has to pay in case of her driving causing
injurytosomeoneand,shewouldweighthedamageswiththebenefitthatshewillgain
in case of attending the meeting in time. Thus, unless rationally behaving person can
foresee that how much she is compelled to pay for tort liability, she cannot compare
andcontrastthebenefitandcostinordertotakeapropercautionwhichconstitutesthe
optimal deterrence.53 Nevertheless, the concept of optimal deterrence is often criticized
that it issofocusedontheaspectofefficiencythat itmaymoreor lessabandonthe
aspect of morality or justice which is the most crucial purpose of law. Assuming that
A can predict the damage she would be liable, she would persist to drive very fast
regardless of her liability, for example, in case that her father is in need for emergency.
However, despite such critic, the concept of optimal deterrence also keeps its value if
theaspectofefficiencycanbeconsideredalongwiththeconceptofjusticeandmorality.
Inaddition, theunpredictabilityofnon-pecuniarydamagesresults inthedifficultyin
settlementbetweenplaintiff anddefendant.Since thenon-pecuniarydamagesare so
varied, the parties fail to estimate how much damages jury will grant, which leads the
different expectation on the amount of damages. For example, the plaintiff who expects
the granted amount of damages much more than the amount offered by the victim may
bereluctanttomakethesettlement.Thedifficultyofsettlementwilllaterresultinthe
cases load of the court and the increasing judicial administrative costs.
The Illinois court decision on the wrongful act causing to bodily harm and death
This part will give clearer understanding of the non-pecuniary damages in the
53 Supra Note 18 p.2-32
186 Vol.4No.1:2012
USthroughexaminingthecourtdecisiononthewrongfulactcausingtobodilyharm
and death. However, as mentioned, the non-pecuniary damages are varied among the
states; thus, for the sake of easiness, the cases below are extracted from only the court
of Illinois state. These two cases are based on the infringement of the driver similar to
thecasesinThailandreferredabove.Thefirstcaseisrelatedtoinjurycausingtobodily
harm while the second case is related to the injury causing to death.
In Richardson v Chapman, 676 N.E. 2d 621, 627(Ill.1997),theplaintiff,Keva
Richardson, at the age of 23, and Ann McGregor, were injured when the car in which
they were riding, which was stopped at a red light at the intersection, was smashed
from behind by a semi-trailer truck driven by defendant Jeffrey Chapman, who was
anemployeeofthedefendantcorporation.KevaRichardson,thedriverofthecar,was
severely injured and rendered quadriplegic. Ann McGregor, the passenger, sustained
only slight injuries and returned to work a couple of weeks later. At the time of accident,
bothof themworkedasaflight attendantwithAmericanAirline.The juryawarded
KevaRichardsonthetotaldamages$22.4million.Thisfigurestandsfor$12.2million
foreconomicdamagessubdividedupto$0.3millionforpastmedicalexpenses,$11
million for the future medical expenses, and 10.2 million for non-economic damages
subdivided to $ 3.5million for disability, $ 2.1million for disfigurement, and $ 4.6
millionforpastandpresentpainandsuffering.TheIllinoisSupremecourtaffirmedthe
non-economicdamagesbutordereda$1millionreductionintheawardthroughremitter,
reasoning that awarding the medical cost was too great to be entirely attributable to such
unquantifiedcostsandrepresentedtoogreatadeparturefromthetrialtestimony.54
In Garcia Clarke v Medley Moving and Storage Inc. 885 N.E.2d 39, in May
54 Supra Note 34 p.699
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2002, the truck driver negligently struck the decedent, at the age of 83, while crossing
the street. The decedent died of his injuries shortly after he was transported to a
hospital. The plaintiff as the executor of the victim sued defendants, vehicle owner
and driver, alleging for damages sustained by the decedent’s estate under the Illinois
WrongfulDeathActandundertheSurvivalAct.Inotherwords, theplaintiffclaims
forcompensationforthedecedent’sfouradultchildreninlossofgifts,benefits,goods,
servicesandsocietyundertheWrongfulDeathAct,andthecompensationfordecedent’s
estateinpainandsufferingundertheSurvivalAct.Therecordshowedthatthedriver
was negligent crushing victim, and the victim’s death lead to the four adult children
damages for deprivation of the support as well as deprivation of the companionship,
guidance,advice,loveandaffectionofthedeceased.Also,thedecedentwasinflicted
with the pain and suffering prior to death. Based on the evidence, the jury rendered
averdict for theplaintiffheirsandagainstdefendants in theamountof$1,725,000,
reducedby1%for thecontributorynegligenceofClarke to$1,707,750.Theaward
damageswereasfollows:$275,000forthepainandsufferingexperiencedbyClark;
$250,000forthelossofpastandfuturegifts,benefits,goodsandservicesofClarke;and
&1,200,000forthelossofpastandfuturesocietyofClarke.Theappealcourtaffirmed.
It should be noted that in the first case, the plaintiff claimed separately the
non-economic damages, that is, disfigurement, disability, and past and present pain
and suffering. In assessing each type of non-economic damage, both plaintiff and
defendant’s attorney suggested the jury the range of the suggested amount of each item
of damages and let the jury independently decided the amount of damages, which may
be out of the range suggested by the parties.
In the second case, it is good to notice that plaintiff in this case is four adult
188 Vol.4No.1:2012
children at the age of each over 50 years old. Also, the decedent, at the time of death,
was83yearsoldandwasprovedinflictionwithpainandsufferingintheshortperiod
during the accident till he was dead at the hospital. Nonetheless, the jury granted the
damagesforhisfourchildrenundertheWrongfulDeathCaseupto$250,000forthe
lossofpastandfuturegifts,benefits,goodsandservices,and$1,200,000fortheloss
of past and future society, as well as the pain and suffering experienced by decedent at
$275,000.ItisdoubtfulthatifthiscasearoseinThailand,howmuchThailandcourt
granted damages on the plaintiff.
COMPARATIVE ANALYSIS
Fromtheinformationpresentedabove,thenon-pecuniarydamagesintheUS
and Thailand seems to be distinct and merit the consideration in more detail. This section
will make a summary on the differences of the non-pecuniary damages in both systems
andfindoutsuchdifferencesshouldbeharmonizedtoprovidethebetterimprovement.
The differences of non-pecuniary damages in Thailand and US
Thedifferencesofnon-pecuniarydamagesinThailandandUScanbedivided
up to four categories as follows.
1. Types of non-pecuniary damages for the case of injury to bodily harm
This type of non-pecuniary damages is actually similar between both countries.
In other words, the law allows the injured party to claim for the non-pecuniary damages
sustained from injury to bodily harm. However, both of them are different in degree and
the depth of court treatment. In Thailand, the law allows the injured party to claim both
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pecuniary and non-pecuniary damages. However, in term of non-pecuniiary damages,
although the injured party differentiates the type of non-pecuniary damages she thought
sheiseligiblesuchaspainandsuffering,lossofenjoyment,disfigurement,thecourt,
in fact, grants the concluding amount of such damages in total sum. This treatment can
be viewed in the Keerati case in which the court granted the total sum of non-pecuniary
damagesat6,900,000bahts.UnlikeThailand,theinjuredpartyinmoststatesintheUS
can claim for each type of non-pecuniary damage separately and the jury will award
the verdict based on each type of non-pecuniary damages. The Richardson case is the
good example of the treatment of most courts which granted non-pecuniary damage
separatelyondisability,disfigurement,andpastandpresentpainandsuffering.
2. Types of non-pecuniary damages for the case of injury to death
The non-pecuniary damages in the case of injury to death is substantial different
between both countries. In fact, Thailand does not allow the injured party to claim for
any non-pecuniary damages in the death case. The concept of pain and suffering prior
todeathaswellasthelossofenjoymentisubiquitousinmanystatesintheUSbutsuch
concept does not have the place in Thailand’s tort law. The example of Piyada case
clearly shows that she does not allege the non-pecuniary damages in the plaint because
she knew exactly the law does not allow the non-pecuniary damages in the case. On the
contrary, the example of Clarke case shows that the Illinois court recognized the pain
andsufferingpriortoClarke’sdeathunderSurvivalAct.
3. The third party claims on non-pecuniary damages
Damages for the third party, the person who suffered from victim’s injury
190 Vol.4No.1:2012
ordeath,aretheothersubjectthatisverydifferentbetweenThailandandtheUS.In
thisregard,theUSismuchmorebroadeningscopeforthethirdparty’sdamagesthan
Thailand, especially in the area of the non-pecuniary damages. For example, most states
intheUSlawenablethespousetoclaimforthelossofsocietyorthelossofconsortium
from the tortfeasor who causes the injury to bodily harm or death. Many states also
extend this type of damages covering child and parent. The Clarke case is the good
example showing that even the adult children with the age above 50 years can claim
the loss of society from the defendant. More broadening, the third party may claim for
the mental distress once she is suffered by witnessing an accident involving a loved one
although the condition that there must be physical injury must be met.
Turning to Thailand, the third party, no matter how close relation with the
injured party, is not entitled to the non-pecuniary damages. Only pecuniary damages
such as the loss of legal support, loss of service can the third party claim under the law
of tort liability. The Piyada case obviously shows that Piyada’s father can claim for the
legalsupportandnothingelse.AlsoKeerati’smothercanclaimonlyKeerati’sdamage
but cannot claim anything for her damages due to the law does not allow the claim for
the legal support in the case of the injury to bodily harm.
4. The assessment of non-pecuniary damages
Both systems have the substantially different assessment of damages. In
Thailand,theplaintiffis,accordingtoSection142oftheCivilProcedurelaw,bound
to identify the type and the amount of damages in the plaint and the court is unable to
grantthetypeandtheamountofdamageexceedingthoseidentifiedintheplaint.This
stipulated condition lead to the situation that the amount of the granted damages in one
case sometimes are much less than the other case with the similar fact due to that the
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plaintiffintheformercasemayleaveoutsomekindofeligibledamagesoridentifiedthe
inadequate amount of damage, which leads to the plaintiff improperly uncompensated.
Forexample,assuming,basedontheevidencesenunciatedinthecourthearing,Keerati
suffered or will suffer amount of damages much more than the requested damage, the court,
subject to the law, can grant the greatest at the plaintiff’s requested amount of damages,
which unavoidably constituted inadequate compensation. This problem seems not to be
thecaseintheUSinwhichtheplaintiffisnotlimitedtoidentifyakindandtheamount
of damages in the plaint. Rather, the plaintiff’s attorney can suggest the jury the range of
possible amount of each type of damages. The jury in fact can compare the suggested range
of the plaintiff and defendant’s amount of damage to reach the granted amount of damages
which may be out of the range proposed by both parties. The Richardson case shows the
mentionedassessmentofnon-pecuniarydamagesintheUS.
The proposed reform of Thailand Non-pecuniary damages
The comparative study above merits the consideration on whether and to what
extentThailandtortlawshouldrecognizetheconceptofUSnon-pecuniarydamages.
In this part, the focus will be laid on the existing problem of Thailand non-pecuniary
damagesandanalyzehowtheUStacklewithsuchproblemsinordertoseethepossibility
to extend the scope of the existing Thailand non-pecuniary damages. However, due
toalotofdiscussiononnon-pecuniarydamages,thearticleshouldfirstlyaddressthe
conflictingopinionsbaseduponthenon-pecuniarydamageaffectingthetwomaingoals
of tort liability, compensation and deterrence, before constructing to what extent the
scope of Thailand tort law should recognize the non-pecuniary damages.
192 Vol.4No.1:2012
The goals of tort law have been recognized in a number of different ways.
However, the major goals emphasize both compensation and deterrence. Firstly, the
tort law should compensate the injured for their injuries and restore them as closely as
to the condition prior to the accident. However, some disagree with the concept of non-
pecuniary damages and argue that the non-pecuniary damages never restore the injured
to the condition prior to injury due to undeniable fact that money neither erase the pain
nor restore the plaintiff to the pre-injury status.55 In addition, because of no money
equivalent,itisdifficulttoestablishworkablestandardofmeasurement.56 Therefore, it
should be limited or should not be recognized.
In my opinion, I am not convinced that the non-pecuniary damage should be
abandoned. Although there is no monetary for such loss, the non-pecuniary damages
are viewed as symbolic of the defendant’s responsibility for the plaintiff’s loss based
upon the extent of its gravity.57 Also, this damage is viewed as the proper atonement that
the defendant has to pay respect to the plaintiff for loss.58 Assuming that none of non-
pecuniary damages is actionable, the award of damages in Keerati case must be minimal
because only medical expenses is granted while other monetary damage such as loss of
earningishardtoquantifyduetothefactthatKeeratiisakidandhasnoearningatthe
timeofaccident.TheresultshallleaveKeeratiandhisfamilyunfairlyuncompensated.
Another major goal of the tort liability is to deter unreasonable unsafe conduct.59
In economic perspective, the tort liability can lead to the deterrent effect. The economic
55 Joseph H. King, Jr (2004) “Pain and Suffering, Noneconomic Damages, and The Goals of Tort Law” 57 SMU Law Review 163 p.2
56 Ibid57 Supra Note 40 p.158 Ibid59 Supra Note 48 p.9
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theoryisthatreasonablepersonknowsexactlytheexpectedcostandbenefitofevery
action they are going to undertake and will weigh up all related factors to estimate the
intendedactionisbeneficialfortheirutilityandactaccordingtothisdeliberation.60 In this
sense, once the individual realize that she is subject to compensation, she will weigh the
costofcompensationandbenefittoestimatetheintendedaction.Ifthecompensationis
properly granted, that is equal or more than the actual damages, it can lead to motivation
to exercise the proper care and therefore deter the accident.61 On the other hands, if the
compensationisdeterminedlessthantheactualdamages,thebenefitwilloutweighthe
cost of infringement and thus discourage the motivation to exercise the proper care and
thus make the deterrent effect ineffective.62 Thus, if the non-pecuniary damage is not
allowed, the granted damages based upon the monetary damages seem to inadequate
andlesscostthanbenefittheinjurergainedthatitisunabletoprovidetheinjurerthe
motivation to exercise the proper care and obstruct the deterrent effect.
However, some scholars disagree that the non-pecuniary damages can lead to the
deterrent effect. One of the main reasons is that, the liability fail to communicate to the
infringer in order to motivate the proper care due to the fact that, in most cases, based on
the concept of vicarious liability, those who is compelled to pay damages is not infringer
but may be the employer or insurance company.63 In my point of view, such situation
is recognized; however, the deterrent effect by the non-pecuniary damages also plays
the role. Although the third party, employer or insurance, is statutorily forced to pay the
damages on infringer’s conduct, that does not mean there would by no means effect on
the infringer. For instance, in Piyada or Keerati case, although the employer is liable
60 Supra Note 21 p.21861 Supra Note 18 p.2-562 Ibid63 Supra Note 48 p.10
194 Vol.4No.1:2012
for paying large amount of damages, the driver is liable for the criminal punishment
andfiredfromhisjobduetohisnegligence.Thus,thefinalresultofgrantingthenon-
pecuniary damages also communicates to the infringer and implies the motivation to
exercise the proper care, which results in the deterrent effect.
The above analysis can infer my opinion that the non-pecuniary damages,
despitebeingunable toundonewithmoneyanddifficult toquantify, is the real loss
to the injured and essential to two major goals of tort liability. However, the scope is
also questionable. In Thailand, the scope of non-pecuniary damages in personal injury
is determined only in the case of the injury to bodily harm and left out for the case of
injurytodeath.Thisleadstotheunsatisfiedresult.Forinstance,assumingthatKeeratiis
suddenly dead from the infringement, the defendant seems to be limitedly liable for loss
ofearningorlegalsupportduetoKeeratiisakidwithnoearningatthetimeofaccident.
Additionally, because of the sudden death, there is none of medical expense granted. As
a result, the granted damages the defendant is liable are much more less than the said
caseofinjurytobodilyharm.ThisresultleadtotheunfairnesstoKeeratiandhisfamily
anddefinitelyfailedtoprovidethemotivationforinfringertoexercisethepropercare.
Turning to the US non-pecuniary damages for injury causing to death, the
court realize the importance of such damages. According to Jordan v Baptist Three
Rivers Hospital 984 SW.2d 593(Tenn.1999), Judge Holder mentioned that, absent the
wrongful death cause of action, “it was cheaper for the defendant to kill the plaintiff
than to injure him, and that the most grievous of all injuries left the bereaved family
ofthevictim…withoutaremedy.”Infact,itiswellrecognizedamongstatesthatnon-
pecuniary damages such as the pain and suffering prior to death can be recovered by
victim’sestateundertheSurvivalstatute.However,althoughfewstatesdorecognizethe
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pain and suffering of the deceased subsequent to death like the loss of enjoyment of life,
or hedonic loss, most states reject it owing to undeniable fact that the deceased has no
feeling, whatever happiness or misery. Granting the non-pecuniary damages subsequent
to death may be over-compensation and windfall to the deceased’s heir. Therefore, from
the above discussion, absence of non-pecuniary damages in the case of injury causing to
deathisproblematicandinfact,Thailandcourtrealizestheunsatisfiedresultthatmay
arise from such absence. For example, in Piyada case, although Thailand court cannot
grant non-pecuniary damages but it alternatively choose to increase the loss of legal
support to 46,000 bahts a month in 20 years. This is very high amount of legal support
given that Piyada was a college student at that time and has no earning at all. The
Thailand court deals with the impasses of non-existence of non-pecuniary damages by
increasing the monetary damages in order to adequately compensate Piyada’s family.
Therefore, based on the analysis above, it is reasonably timely for Thailand to recognize
non-pecuniary damages in the case of injury causing to death.
However, the scope of non-pecuniary damage should be seriously studied
before implementation. In my view, the decedent’s non-pecuniary damages for the pain
and suffering damages prior to death are real and should be undeniably recognized.
For non-pecuniary damages subsequent to death, however, a lot of researches on its
influenceonthegoalsoftortlawshouldbetakenintoconsiderationbeforeenforcement.
Regarding the non-pecuniary damages for the decedent’s next of kin, Thailand
does not recognize the non-pecuniary damages of the third party in relation with the
plaintiff.InUS,manystatesrecognizetherecoveryofthespouse’slossofconsortium.
However, the scope for other person in relation with the decedent is still much of
controversial.Forexample,theIllinoisSupremeCourthaspermittedspouses,parents
196 Vol.4No.1:2012
of minor and adult children and sibling to recover the loss of consortium See Finley
v Zemmel, 151 Ill.2d 95, 276 Ill,Dec. 1, 601 N.E.2d 699(1992) and Garcia Clarke v
Medley Moving and Storage Inc. and Gregory Griffin 381 Ill. App. 3d 82; 885 N.E.2d
396;2008 Ill while New York and New Jersey state expressly preclude recovery for
loss of society or companionship See eg. Alexander v Whitman, 144 F.3d 1392(3d Cir.
1997).64 In addition, many states recognized the mental distress caused by witnessing the
injury to the loved one. However, the rule in this kind of damages is not determinative.
In other words, although general rule requires the physical harm accompanied with the
mental distress, the interpretation of harm may be different among states See Daley v
LaCroix, 384 Mich. 4, 179 N.W. 2d 390(1970) and some states does not require the
physical harm See St. ElizabethHospital vGarrard, 7:30 S.W.2d 649 (Tex.1987).65
Consequently, although the concept of the non-pecuniary damages for the third party is
real and necessary for compensation, given disparities among states about the concept
of non-pecuniary loss to the third party, it is too soon to implement in Thailand. The
research should be undertaken in depth about its advantages and drawbacks and
influenceonthegoalsoftortlaw,bothcompensationanddeterrencebeforeThailand
will recognize the concept of the non-pecuniary damages for the third party.
Lastly, in spite of the huge differences of the procedural law in Thailand and
US,and theprominent roleof jury in theUSnon-existent inThailand, it shouldbe
notedthatsomeconceptofassessmentintheUScanbeborrowedtoapplyandadjustin
the Thailand tort law system. The most distinctive feature is that the judge and jury in
theUSarenotlimitedinthescopeoftherequestedamountofdamages.Forexample,
in the case of Keeva, the attorney of both plaintiff and defendant can offer the range
of the possible amount of damages to jury but the jury is independently able to grant
64 Supra Note 20 p.57465 Ibid p.693
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amountofdamagesevenoutofsuchproposedranges.UnlikeUS,judgesinThailand,
underSection142of theCivilProceduralcode, isprohibited togrant theamountof
damages out of the plaintiff’s requested amount of damages, although the evidence will
show that such damages are sustained by the plaintiff. It would be better compensation
on the injured party provided that the court has more discretion to grant the amount of
damages according to the shown evidence although the plaintiff’s attorney unwittingly
or negligently leaves out some real damages. Consequently, the proposed reform is to
amend the legislation to provide more discretion to the court without the limitation only
on the scope of the requested amount of damages.
CONCLUSION
Inconclusion,ThailandandtheUShavedifferentapproachesonnon-pecuniary
damageinpersonalinjurycase.Suchdifferencesmerittheconsiderationofthisarticle
and lead to the proposed reform of Thailand Tort law. To brief, the non-pecuniary
damages in the injury causing to death should be available, especially in the case of
pain and suffering prior to death, although the scope and degree of other non-pecuniary
damages are also under the scrutiny. Moreover, the law should be amended to provide
the broaden scope of court’s discretion on granting amount of damage without limitation
on the scope of the plaintiff’s requested amount of damages. Last but not least, Thailand
should invest more on the research about the drawbacks and advantages, as well as the
scope of the non-pecuniary damages on the person in relation with the injured before the
law amendment will be taken into effect.
198 Vol.4No.1:2012
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