THE NON-PECUNIARY DAMAGES IN WRONGFUL ACTS

CAUSING BODILY HARM AND DEATH: THE COMPARATIVE

STUDY ON US AND THAILAND LAWS

Mr. WorrawongAtcharawongchai1

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.

1Judge of Phuket 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-Kent College of Law, US.) funded by the Office of Judiciary of

Thailand

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.2

Personal injury claim

Personal injury is defined as the legal term for an injury to the body, mind or

emotion as contrary to the injury to property.3It may include all kind of injuries that

2 Section 438 of Thailand Civil and Commercial Code

3 Wikipedia see http://en.wikipedia.org/wiki/Personal_injury

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 monetary

value such as pain and suffering, disability, disfigurement, loss of enjoyment. 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 the third party for loss of the injured party‟s services5, compensation for the third

party for loss of the legal support.6 Since the civil and commercial code provide only

these six types 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

4 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.

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 Code

7Thailand Development Research Institute .2010. “Economic Analysis of Law: the

Assessment of Damages in Wrongful Act” the proposal to the office of judiciary of

Thailand p.4-15 8 Ibid

In term of injury causing bodily harm, only the four following types of damages

can be recovered: the expenses and the damages for total or partial disability 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 broadly

defined and include any expenses that injured party had paid due to the injury.

Significantly, the plaintiff normally claimsfor the medical 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.13

Nevertheless, the Supreme Court of Thailand 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 liberty

are thus reserved for the next study. This part will explain the definition and types of non-

pecuniary damages, and the method of assessment. Then, it will present 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

9Section 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 code 11

Section 446 “In the 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 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. 12

The Decision of the Supreme Court No.4859/2538 13

The Decision of the Supreme Court No.3345/2538 14

Ibid 15

The Decision of the Supreme Court No.516/2551 16

Ibid 17

The Decision of the Supreme Court No.6303/2547 18

Supra Note 11

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 the Civil and Commercial Code does not identify the exact definitionand 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, the decision of

the Supreme Court of Thailand can broaden the understanding of non-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 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 problemswiththe 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-

pecuniary damages in both US and Thailand. For this part, the article will delineate the

current distinct problems found in the case of non-pecuniary damages compensated on

the personal injury causing death and bodily harm in Thailand.

19

Suphanit, Susom.2007. “Tort law” Bangkok: faculty of law, Chulalongkorn University

p.265 20

The Decision of the Supreme Court No.247/1995 21

The Decision of the Supreme Court No. 3344/1990 22

The Decision of the Supreme court No.128/1979 23

The Decision of the Supreme court No.247/2538, 75/2538 24

Section 438 “The court shall determine the manner and the extent of the compensation

according 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.”

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 proper care

because the reasonable people will lack the motivation to take more care to avoid death

than to avoid bodily harm.25

Secondly, in the case of death where the injured party is not immediately dead, he

may be inflicted with pain and suffering prior to death. Nonetheless, Thailand Civil 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 sometimes insufficient to adequately compensate the injured, is unavoidable

due to the fact that each judge has different opinion and experience and has scope of

authority to 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.

25

Thailand Development Research Institute .2010. “Economic Analysis of Law: the

Assessment of Damages in Wrongful Act” the proposal to the office of judiciary of

Thailand p.6 26

The Decision of the Supreme Court No.780/2502

The decision of the appeal court No.1011/2549 is the most recent notorious case

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 baths.

The trial judge held that the defendant was negligent and granted the total damages to

plaintiff 10,747,000 baths. This amount of damages came mainly from loss of the legal

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

expense prior to death, reduced the paid insurance compensation 750,000 baths. The

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 in

both English and Japanese language, and had a plan to study in Japan, which, if she

succeeds in her plan, she can earn money at least 46,000 baths a month. Therefore, the

Appeal court affirmed the trial court‟s decision that the loss of legal support should be

46,000 baths a month in 20 years. This case is now pending in the Supreme Court.

In the Supreme Court decision No.6303/2547, the fact in this case is similar to the

previous one. It is the case regarding the wrongful act of the omnibus driver who

negligently drove off the bus stop so abruptly that Keerati, at the age of 6, fell of the 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 baths, 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 to

the expert‟s testimony, Keerati will be disabled forever and he even cannot excrete

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 baths. Plus the medical and other

expenses, the total amount of damages in this case is 8,611,370.50 baths.

It should be noted that the first case involving death is the Appeal Court decision

while the second case involving bodily harm is the Supreme Court decision. The reason

to raise these two cases as the example is that these cases are similar in fact pattern and

they are some of the most recent decisions on non-pecuniary damages. The first case 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 the

Supreme Court granted both the damages for lost earnings and pain and suffering caused

by such disability in total amount of money, 6,900,000 baths. Notice should also be

added that the Supreme Court in the second case granted non-pecuniary damages through

the discretion but it is not obvious in the decision about how the Supreme Court reached

such amount of pain and suffering. The court only reasoned that due to the fact that the

disability will last forever and ruined Keerati‟s life, so such amount of pain 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 expensesthan injury involving death which involves solely in

claiming for the medical expense prior to death. For this reason, the first case seems to be

irregularly high compared to other cases with the same fact.However, in my view, the

substantial amount of damage is caused bydefendant‟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, Thailandattracted 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 of legal

support may be viewed as the implied punitive damage.Nonetheless, this case still has to

wait for the review of the Supreme Court.

NON-PECUNIARY DAMAGES IN THE US

Before exploring the concept of the US non-pecuniary damage, it should be noted

at the outset that there is a huge difference between Thailand and US legal system, which

may bring about conflicting idea about the concept and method of the non-pecuniary

damages. Firstly, it should be noted that the US law on the non-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.

Another notice that should merit our consideration is that the US legal system 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.27

The role of jury in determining the damages in the US is much different

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

27

Shoben, W Elaine, Tabb M. William, and Janutis M. Rachel. 2007. Remedies: Cases

and Problems 4th

edition Foundation Press p.556

mind that a group of lay man, so called jury, is the determiner of the damages, which may

constitute the different problem as it will later be discussed.

Lastly, the procedural rule on the damage claim is also different in Thailand and

US. In Thailand, as mentioned, the injured party will be granted the amount of non-

pecuniary damages not exceeding their request on the claim. On the other hand, in the

US, based on the research on a variety of cases, the injured party‟s lawyer can introduce

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

difference in some situations may influence on the amount of granted damages.

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 is made.

Then, it will propose possible problems in the US current law on non-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-pecuniary damages can be defined as a loss which is intangible and which

lack the market value.28

In the US, each state has 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, 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) Tangible physiological pain suffered by the victim at the time of injury and during

recuperation, a period that may be lengthy but that is more often brief.

2) The anguish and terror felt in the face of impending injury or death, both before and

after an accident.

3) The immediate emotional distress and long-term loss of love and companionship

resulting from the injury or death of a close family member, so known in the US as “loss

of consortium”

4) Most important, the enduring loss of enjoyment of life by the accident victim who is

denied the pleasures of normal personal and social activities because of his permanent

28

Donna Benedek 1998 “Non-Pecuniary Damages: Defined, Assessed, and Capped” 32

R.J.T. 607

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 different kind of damages, to separately claim other non-

pecuniary damages such as the mental pain and suffering, loss of enjoyment,

disfigurement, disabilityRicharson 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

widely available for spouses. Loss of consortium is defined in Gate 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 the jurisdictions about the scope of loss of consortium claim.

Some jurisdictions does not 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

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 31

Ibid p.528 32

Ibid p.688 33

Ibid p.689

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, the Survival Acts generally have provided that certain of a decedent'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

sufferingprior 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, the Wrongful Death statutes have

provided a cause of action for those injured by the death of the decedent, usually the

spouse and children.38

Under this Act, Damages is consisted of lost support—income of

the decedent which would 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

It is very difficult to assess the pain and suffering damages due to the fact that 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 the pain. A

lot of discussion is made to find out the most reliable methodology to assess such

damages. In the US, the assessment of the pain and suffering damages is assigned to the

34

Wex S. Malone.1965. “The Genesis of Wrongful Death”, 17 Standard Law Review

1043 35

Ibid 36

Ibid 37

Supra note 18 p.6-2 38

David W. Leebron.1989.“Final Moments: Damages For Pain and Suffering Prior to

Death” 64 New York University Law Review 256 39

Ibid

jury. The plaintiff‟s counsel may show the evidence of pain and sufferingthrough the

testimony of the victim's loved ones or sometimes the expert testimony for future

physical pain. She may convince the jury by using arguments about the activities that the

plaintiff will never again be able to engage in, or the painshe 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

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 their own

suffering or its avoidance in the disability, disfigurement, physical pain, and mental

suffering.41

Secondly, the court of many jurisdiction also decline the per diem 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 theplaintiff 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 instructionis

unhelpful for jury‟s assessment of damages.43

The typical jury instruction for pain and

suffering simply reads as follows:

“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

When jury give the verdict on damages, it is in practice conclusive due to the fact

that the constitution prohibits courts to make a revision on factual finding by jury. The

sole exception is that the court can disturb juryverdict 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 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 verdict only if the verdict fails to include an element of damage

that was specifically proven 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

40

Ibid 41

Richard W.Wright.2010. Basic Principles of Liability “Chapter 9: Damages” p.698 42

Ibid 43

Supra Note 18 p.6-5 44

G. Douthwaite.1981., Jury Instructions on Damages in Tort Actions 274 referred in

Supra Note 31 45

Supra Note 20 p. 556

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 alsoleads to 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.49

Such situation may arguably have the

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 the

case with the similar fact and degree of injury. Such unpredictability may obstruct the

concept of the optimal deterrence. Under the economic sense, the individual who know

exactly the benefits and cost of every action they are going to undertake will weigh them

46

Ibid p. 557 47

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 48

Supra Note 18 p.6-7 49

Ibid p.6-8 50

Ibid 51

Ibid p.6-11

to determine whether the intended action is advantageous for their utility.52

For example,

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 injury

to someone and, she would weigh the damages with the benefit that she will gain 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 and contrast the

benefit and cost in order to take a proper caution which constitutes the optimal

deterrence.53

Nevertheless, the concept of optimal deterrence is often criticized that it is

so focused on the aspect of efficiency that it may more or less abandon the 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 the aspect of

efficiency can be considered along with the concept of justice and morality. In addition,

the unpredictability of non-pecuniary damages results in the difficulty in settlement

between plaintiff and defendant. Since the non-pecuniary damages are 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 be

reluctant to make the settlement. The difficulty of settlement will later result in the 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 US

through examining the court decision on the wrongful act causing to bodily harm 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 the cases in

Thailand referred above. The first case is related to injury causing to bodily 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), the plaintiff, 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 an

employee of the defendant corporation. Keva Richardson, the driver of the car, 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, both

of them worked as a flight attendant with American Airline. The jury

52

Faure Michael.2009. Tort Law and Economic 2nd

edition Cheltenham: Edward Elgar

Publishing Limited p.218

53

Supra Note 18 p.2-32

awardedKevaRichardson the total damages $ 22.4 million. This figure stands for $12.2

million for economic damages subdivided up to $ 0.3 million for past medical expenses,

$ 11 million for the future medical expenses, and 10.2 million for non-economic damages

subdivided to $ 3.5million for disability, $ 2.1 million for disfigurement, and $ 4.6

million for past and present pain and suffering. The Illinois Supreme court affirmed the

non-economic damages but ordered a $ 1 million reduction in the award through remitter,

reasoning that awarding the medical cost was too great to be entirely attributable to such

unquantified costs and represented too great a departure from the trial testimony.54

In Garcia Clarke v Medley Moving and Storage Inc. 885 N.E.2d 39, in May 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 Wrongful Death Act and

under the Survival Act. In other words, the plaintiff claims for compensation for the

decedent‟s four adult children in loss of gifts, benefits, goods, services and society under

the Wrongful Death Act, and the compensation for decedent‟s estate in pain and suffering

under the Survival Act. The record showed that the driver 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, love and affection

of the deceased. Also, the decedent was inflicted with the pain and suffering prior to

death. Based on the evidence, the jury rendered a verdict for the plaintiff heirs and

against defendants in the amount of $ 1,725,000, reduced by 1% for the contributory

negligence of Clarke to $ 1,707,750. The award damages were as follows: $ 275,000 for

the pain and suffering experienced by Clark; $ 250,000 for the loss of past and future

gifts, benefits, goods and services of Clarke; and & 1,200,000 for the loss of past and

future society of Clarke. The appeal court affirmed.

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

children at the age of each over 50 years old. Also, the decedent, at the time of death, was

83 years old and was proved infliction with pain and suffering in the short period during

the accident till he was dead at the hospital. Nonetheless, the jury granted the damages

for his four children under the Wrongful Death Case up to $ 250,000 for the loss of past

and future gifts, benefits, goods and services, and $1,200,000 for the loss of past and

future society, as well as the pain and suffering experienced by decedent at $ 275,000. It

is doubtful that if this case arose in Thailand, how much Thailand court granted damages

on the plaintiff.

54

Supra Note 34 p.699

COMPARATIVE ANALYSIS

From the information presented above, the non-pecuniary damages in the US 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 and

find out such differences should be harmonized to provide the better improvement.

The differences of non-pecuniary damages in Thailand and US

The differences of non-pecuniary damages in Thailand and US can be divided 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 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 she is eligible such as pain and

suffering, loss of enjoyment, disfigurement, the court, 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

damages at 6,900,000 baths. Unlike Thailand, the injured party in most states in

the US 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

Richardsoncase is the good example of the treatment of most courts which

granted non-pecuniary damage separately on disability, disfigurement, and past

and present pain and suffering.

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 to death as well as the loss of enjoyment is ubiquitous in many

states in the US but such 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 and suffering prior to

Clarke‟s death under Survival Act.

3. The third party claims on non-pecuniary damages

Damages for the third party, the person who suffered from victim‟sinjury or

death, are the other subject that is very different between Thailand and the US. In

this regard, the US is much more broadening scope for the third party‟s damages

than Thailand, especially in the area of the non-pecuniary damages. For example,

most states in the US law enable the spouse to claim for the loss of society or the

loss of consortium 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 legal support and nothing else. Also Keerati‟s mother can

claim only Keerati‟s damage 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,

the plaintiff is, according to Section142 of the Civil Procedure law, bound to

identify the type and the amount of damages in the plaint and the court is unable

to grant the type and the amount of damage exceeding those identified in the

plaint. 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 plaintiff in the former case may leave out some kind of

eligible damages or identified the inadequate amount of damage, which leads to

the plaintiff improperly uncompensated. For example, assuming, based on the

evidences enunciated in the court hearing, 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

the case in the US in which the plaintiff is not limited to identify a kind and the

amount 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 mentioned assessment of non-

pecuniary damages in the US.

The proposed reform of Thailand Non-pecuniary damages

The comparative study above merits the consideration on whether and to what

extent Thailand tort law should recognize the concept of US non-pecuniary damages. In

this part, the focus will be laid on the existing problem of Thailand non-pecuniary

damages and analyze how the US tackle with such problems in order to see the

possibility to extend the scope of the existing Thailand non-pecuniary damages.

However, due to a lot of discussion on non-pecuniary damages, the article should firstly

address the conflicting opinions based upon the non-pecuniary damage affecting the two

main goals of tort liability, compensation and deterrence, before constructing to what

extent the scope of Thailand tort law should recognize the non-pecuniary damages.

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, it is difficult to establish workable standard of measurement.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

earning is hard to quantify due to the fact that Keerati is a kid and has no earning at the

time of accident. The result shall leave Keerati and his family unfairly uncompensated.

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 theory is that reasonable person knows exactly the expected cost and benefit of

every action they are going to undertake and will weigh up all related factors to estimate

the intended action is beneficial for their utility and act according to this deliberation.60

In

this sense, once the individual realize that she is subject to compensation, she will weigh

the cost of compensation and benefit to estimate the intended action. If the compensation

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

Ibid 57

Supra Note 40 p.1 58

Ibid 59

Supra Note 48 p.9 60

Supra Note 21 p.218

is 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 compensation is determined less than the actual damages, the benefit will

outweigh the 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 and less cost than benefit the injurer gained that it is unable to provide the

injurer the 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 for

paying large amount of damages, the driver is liable for the criminal punishment and

fired from his job due to his negligence. Thus, the final result of granting the non-

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, despite

being unable to undone with money and difficult to quantify, 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 injury to death. This leads

to the unsatisfied result. For instance, assuming that Keerati is suddenly deadfrom the

infringement, the defendant seems to be limitedly liable for loss of earning or legal

support due to Keerati is a kid with no earning at the time of accident. 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 case of injury to

bodily harm. This result lead to the unfairness to Keeratiand his family and definitely

failed to provide the motivation for infringer to exercise the proper care.

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 of the

victim…without a remedy.” In fact, it is well recognized among states that non-pecuniary

damages such as the pain and suffering prior to death can be recovered by victim‟s

61

Supra Note 18 p.2-5 62

Ibid 63

Supra Note 48 p.10

estateunder the Survival statute. However, although few states do recognize the 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

death is problematic and in fact, Thailand court realizes the unsatisfied result that may

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 baths 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 influence on

the goals of tort law should be taken into consideration before enforcement.

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. In US, many states recognize the recovery of the spouse‟s loss of consortium.

However, the scope for other person in relation with the decedent is still much of

controversial. For example, the Illinois Supreme Court has permitted spouses, parents 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. Elizabeth Hospital v Garrard, 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 influence on the

goals of tort law, both compensation and deterrencebefore Thailand will recognize the

concept of the non-pecuniary damages for the third party.

64

Supra Note 20 p.574 65

Ibid p.693

Lastly, in spite of the huge differences of the procedural law in Thailand and

US,and the prominent role of jury in the US non-existent in Thailand, it should be noted

that some concept of assessment in the US can be borrowed to apply and adjust in the

Thailand tort law system. The most distinctive feature is that the judge and jury in the US

are not limited in the scope of the requested amount of damages. For example, 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 amount of damages

even out of such proposed ranges. Unlike US, judges in Thailand, under Section 142 of

the Civil Procedural code, is prohibited to grant the amount of 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

In conclusion,Thailand and the US have different approaches on non-pecuniary

damage in personal injury case. Such differences merit the consideration of this article

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.

Bibliography

Avraham, Ronen .2006. “Putting a Price on Pain-and-Suffering Damages: A Critique of

the Current Approaches and a Preliminary Proposal for Change” Northwestern University

Law Review 100(1): 87-120

Bovbjerg, Randall R., Frank A. Sloan, and James F. Blumstein.1989. “Valuing Life and

Lime in Tort: Scheduling Pain and Suffering” Nortwestern University Law Review

83(4):908-976

Brannon, Ike.2004.“What Is a Life Worth?” Regulation 27(4): 60-63

Cooter, Robert and Thomas Ulen 2003 Law and Economic 4th

edition. Pearson Addison

Wesley

David W. Leebron.1989. “Final Moments: Damages For Pain and Suffering Prior to

Death” 64 New York University Law Review 256

Donna Benedek 1998 “Non-Pecuniary Damages: Defined, Assessed, and Capped” 32

R.J.T. 607

Faure, Michael.2009. Tort Law and Economic Edward Elgar Publishing Limited

Geistfeld, Mark.1995. “Placing a Price on Pain and Suffering: A Method for Helping

Juries Determine Tort Damages for Nonmonetary Injuries” California Law Review 83(3:

773-852

King, H. Joseph.2004. “Pain and Suffering, Noneconomic Damages, And The Goals of

Tort Law” SMU Law Review 57(163)

Faure Michael.2009. Tort Law and Economic 2nd

edition Cheltenham: Edward Elgar

Publishing Limited

Plant, L. Marcus.1958. “Damages for Pain and Suffering” Ohio State Law Journal 19:

200-211

Pengniti, Peng. 2002. Tort law Bangkok, Thai bar association

Posner, A. Richard. 2007. Economic Analysis of Law 7th

edition. Wolters Kluwer Law &

Business

Posner, Eric A. and Cass R. Sunstein.2005. “Dollars and Death” The University of

Chicago Law Review 72(2):537-598

Shoben, W Elaine, Tabb M. William, and Janutis M. Rachel. 2007. Remedies: Cases and

Problems 4th

edition Foundation Press

Suphanit, Susom.2007. “Tort law” Bangkok: faculty of law, Chulalongkorn University

Sugarman, D. Stephen .2005. “A Comparative Law Look At Pain and Suffering Awards”

Depaul Law Review 55: 399-434

Sukontaphan, Pisawas .1982. “the mental damages in common law” Journal of

Thammasat faculty of law 12(2): 165-178

Thailand Development Research Institute .2010. “Economic Analysis of Law: the

Assessment of Damages in Wrongful Act” the proposal to the office of judiciary of

Thailand

Viscusi, W. Kip. 1996. “Pain and Suffering: Damages in Search of Sounder Rationale”

Michigan Law and Policy Review 1: 141-177

Viscusi, W. Kip.2007. “The Flawed Hedonic Damaged Measure of Compensation for

Wrongful Death and Personal Injury” Journal of Forensic Economics 20(2): 113-135

Wex S. Malone.1965. “The Genesis of Wrongful Death”, 17 Standard Law Review 1043

Zavos Harry.2009. “Monetary Damages For Nonmonetary Losses: An Integrated Answer

To The Problem Of The Meaning, Function, And Calculation Of Noneconomic

Damages” Loyola of Los Angeles Law Review 43(193)