Personal injury and damages for non-pecuniary loss in the law of torts and the product liability

PERSONAL INJURY AND DAMAGES FOR NON-PECUNIARY LOSS IN

THE LAW OF TORTS AND THE PRODUCT LIABILITY LAW

BY

MS. ISARA LOVANICH

A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF

THE REQUIREMENTS FOR THE DEGREE OF

MASTER OF LAWS IN BUSINESS LAWS (ENGLISH PROGRAM)

FACULTY OF LAW THAMMASAT UNIVERSITY

2011

PERSONAL INJURY AND DAMAGES FOR NON-PECUNIARY LOSS IN

THE LAW OF TORTS AND THE PRODUCT LIABILITY LAW

BY

MS. ISARA LOVANICH

A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF

THE REQUIREMENTS FOR THE DEGREE OF

MASTER OF LAWS IN BUSINESS LAWS (ENGLISH PROGRAM)

FACULTY OF LAW THAMMASAT UNIVERSITY

2011

THAMMASAT I-INIVERSITY

FACULTY OF LAW

THESIS

BY

MS. ISARA LOVANICH

PERSONAL INJURY AND DAMAGES FOR NON-PECI.INIARY LOSS IN THELAW OF TORTS AND THE PRODUCT LIABILITY LAW

has been approved as partial fulfillment of the requirements

for the degree of Master of Laws in Business Laws

(English Program)

on December 26,201I

Chairman of Thesis Committee

Member and Advisor

Member and Co-Advisor

Member

mapoom Bhumithavara )l/*"-.*oo^-2--

(Justice Phatarasak Vannasaeng)

i

ABSTRACT

It is frequently seen nowadays that one tortious act results in serious damage covering both pecuniary losses and non-pecuniary losses. However, the laws still lack of potential to provide full compensation to the injured persons since under Thai law of torts, damages for pure non-pecuniary loss and damages for non-pecuniary loss in case of injury to life are not recoverable as of the legal restriction and the present approach of Thai Court to interpret the laws strictly.

In brief, the wording in section 446 of the Thai Civil and Commercial Code B.E. 2468 suggests that damages for non-pecuniary loss can only be recovered in case where it is accompanied with injury to body, health or liberty, regardless of section 438 of the Thai Civil and Commercial Code which may be used as a device to unleash discretionary power of the Court to grant any compensation to the injured person so as to restore the “status quo ante” of the injured person. As to the issue of damages for non-pecuniary loss in case of injury to life, the Court also applies section 443 of the Thai Civil and Commercial Code strictly i.e., only damages provided within section 443 and 445 are recoverable in case of injury to life. In trying to move away from the old strict interpretation, the Council of States enacted the definition of ‘damage to mental state’ within section 4 of the Liability for Damages Arising from Unsafe Products Act B.E. 2551 and, provides the right of certain persons under section 11(1) of the Liability for Damages Arising from Unsafe Products Act to claim damages to ‘damage to mental state’ in case the injured person dies. However, the wording in the Liability for Damages Arising from Unsafe Products Act itself has led to ambiguous meaning and thus the gaps revealed in the Thai Civil and Commercial Code remain.

Moreover, if ever, damages for non-pecuniary loss will be granted, the lack of

method of calculation for damages for non-pecuniary loss will cause inequality to the injured persons in different cases who similarly injured. Not to mention the ceiling provided under section 11(2) of the Liability for Damages Arising from Unsafe Products Act that does not provide an actual ceiling for business operators. Following this issue, there has been a great influence from European continent to use Guidelines as a tool to facilitate the Court in assessing the amount of damages for non-pecuniary loss. Guidelines of different jurisdictions are made according to economics, medical experts or previous Supreme Court decisions. Nonetheless, these may not be the only factors should the Court consider.

In this thesis, the author focuses on the analysis of these issues and, with

regard to the Constitution, social and the economics, has made recommendations in order to provide full compensation and equality to the injured persons accordingly.

ii

ACKNOWLEDGEMENTS

First of all, I would like to express my sincere gratitude to Associate Professor Dr. Anan Chantara-opakorn as my advisor, Dr. Khemapoom Bhumithavara as my co-advisor and, Professor Dr. Jumphot Saisoonthorn and Justice Phatarasak Vannasaeng as my committees for their valuable comments that made this thesis more interesting. Also, I would like to thank Ms. Napa and the librarians who supported me with all technical problems. Moreover, thanks to the authors of all the reference books, articles and etc. listed in the bibliography. Thanks to my (present) partner, my friends, my workplace, the internet technologies, and my Bruza for your encouragement and support. Finally, I would like to thank you my family for your existing, your love that drives me through this time and the next.

It’s a pleasure writing this thesis as it did give me the real treasure of studying

than what are already been written in textbooks. Whatever mistakes remain are rest on the author alone.

Isara Lovanich Thammasat University 2011

iii

LIST OF CHARTS/GRAPHS/TABLES

Charts/Graphs/Tables Page

1. Compensation ................................................................................. 24 2. Secondary Victim............................................................................ 38 3. Damages for Non-Pecuniary Loss ................................................... 64 4. Relation between Weathiness and Healthiness................................. 110 5. Market Value of Statistical Work .................................................... 116 6. Relation between Weathiness and Healthiness................................. 117 7. Statistical Utility-Drop .................................................................... 118 8. Box 0 Represents 100 Percent of a Human Life............................... 120 9. Box 1 Represents a Person who Suffered Injury Level 6 at the Age of 30................................................................................................ 120 10. Box 2 Represents a Person who Suffered Injury Level 6 at the Age of 60................................................................................................ 121 11. Market Value of Statistical Injuries ................................................. 122 12. Draft of the Provisions to be Amended ............................................ 128

iv

TABLE OF CONTENTS

Page

Abstract .................................................................................................... (i) Acknowledgements .................................................................................. (ii) List of Charts/Graphs/Tables .................................................................... (iii) Chapter

1. Introduction .................................................................................... 1 1.1 Backgrounds and Problems ................................................... 1 1.2 Hypothesis ............................................................................ 5 1.3 Objectives of Study .............................................................. 5 1.4 Scope of Study ...................................................................... 6 1.5 Methodology......................................................................... 6 1.6 Expected Results ................................................................... 7

2. Personal Injury and Damages for Non-Pecuniary Loss under the Law of Thailand .............................................................................. 8

2.1 Evolution of Tortious Liability and Compensation in the Law of Thailand ................................................................... 8

2.2 Grounds of Tortious Liability ............................................... 9 2.2.1 Liability for One’s Own Fault...................................... 10 2.2.1.1 General Ground of Tortious Liability (Fault Based Liability) .................................. 10 2.2.1.2 Specific Ground of Liability (Presumption of Fault ......................................................... 10 2.2.1.3 Strict Liability (No-Fault Based Liability) .... 11

2.2.2 Liability for Other Person’s Fault................................. 12 2.2.2.1 Vicarious Liability ....................................... 12 2.3 Tortious Compensation ........................................................ 12 2.3.1 The Meaning and Principle of Tortious Compensation ............................................................. 12 2.3.1.1 Principle of Full Compensation ..................... 13

2.3.1.2 Principle of Fair and Satisfactory .................. Compensation ............................................... 14

2.3.2 Legal Beneficiary of Tortious Compensation ............... 15 2.3.3 The Pattern and Types of Tortious Compensation ........ 15 2.4 Personal Injury and Damages for Non-Pecuniary Loss in Light of Thai Law of Tort and the Liability for Damages Arising from Unsafe Products Act (B.E. 2551) ...... 17 2.4.1 Definition of Personal Injury ........................................ 17 2.4.1.1 Injury to Life ................................................ 18 2.4.1.2 Injury to Body and Health ............................ 18 2.4.1.3 Injury to Liberty ........................................... 19 2.4.1.4 Injury to any Right of another Person ........... 19 2.4.2 Damages ...................................................................... 19

v

2.4.2.1 Damages for Pecuniary Loss ........................ 19 2.4.2.1.1 Damages for Pecuniary Loss in Case of Injury to Life .................................. 20 2.4.2.1.2 Damages for Pecuniary Loss in Case of Injury to Body and Health ............... 21 2.4.2.1.3 Damages for Pecuniary Loss in Case of Injury to Liberty ............................. 22 2.4.2.2 Damages for Non-Pecuniary Loss................. 23 2.4.2.2.1 A Study of Section 446 of the Thai Civil and Commercial Code (TCCC) .. 24 2.4.2.2.1.1 General System ....................... 24 (i) Damages for Non-Pecuniary Loss that are Recoverable ...................... 25 (ii) Damages for Non-Pecuniary Loss that are not Recoverable ................. 26 (a) Damages for Pure Non- Pecuniary Loss ......................... 26 (b) Damages in Case of Injury to Life ........................................... 27 (b)(i) Damages for Bereavement ........................................ 27 (b)(ii) Inheritability and Damages for Loss of Life (Value of Life) ......... 28 2.4.2.2.1.2 Method of Calculation ............ 28 2.4.2.2.2 A Study of the Liability for Damages Arising from Unsafe Product Act B.E. 2551 ............................................ 29 2.4.2.2.2.1 General System ...................... 29 (i) Damages for Non-Pecuniary Loss that are Recoverable ........................ 29 (a) Damages for Non-Pecuniary Loss that are Recoverable under the Civil and Commercial Code ........................................ 29 (b) Damages for Non-Pecuniary Loss that are Recoverable in Addition to the Principle of the Thai Civil and Commercial Code ........................................ 30 (b)(i) Damages for Damage to Mental State ..................... 30 (b)(ii) Damages in Case of Injury to Life .................. 30 (b)(ii)(1) Damages for Bereavement ........... 30 (b)(ii)(2) Inheritability and

vi

Damages for Loss of Life (Value of Life) .............................. 30 2.4.2.2.2.2 Method of Calculation ........... 30

3. Comparative Studies on Personal Injury and Damages for Non-Pecuniary Loss ........................................................................ 32 3.1 Unrestricted Plurality ............................................................ 32 3.1.1 Personal Injury and Damages for Non-Pecuniary Loss in the United Kingdom ................................................ 32 3.1.1.1 General System ............................................ 32 3.1.1.1.1 Damages for Non-Pecuniary Loss that are Recoverable .................................. 33 (i) Damages for Damage to Mental State ................................................ 33 (a) Pain and Suffering .................... 33 (b) Loss of Amenities ..................... 34 (c) Nervous Shock and Other Recognized Psychiatric Illnesses . .....................................................34 (ii) Damages for Secondary Victims for their Recognized Psychiatric Illness ...................................................... 35 (iii) Damages for Bereavement ............ 39 (iv) Inheritability.................................. 39 3.1.1.1.2 Damages for Non-Pecuniary Loss that are not Recoverable ...................... 39 (i) Damages for Pure Non-Pecuniary Loss and Emotions .......................... 39 3.1.1.2 Product Liability ........................................... 40 3.1.1.3 Method of Calculation .................................. 42 3.2 Restricted Pluralism.............................................................. 43 3.2.1 Personal Injury and Damages for Non-Pecuniary Loss in Germany ................................................................. 43 3.2.1.1 General System ............................................ 43 3.2.1.1.1 Damages for Non-Pecuniary Loss that are Recoverable .................................. 44 (i) Damages for Damage to Mental State that Amount to Recognized Illness ............................................ 44 (ii) Damages for Secondary Victims for their Psychiatric Illness ............. 45 (iii) Inheritability ................................. 46 3.2.1.1.2 Damages for Non-Pecuniary Loss that are not Recoverable ............................ 46 (i) Damages for Bereavement.............. 46 (ii) Damages for Damage to Mental

vii

State that do not Amount to Recognized Illness and Emotions ... 47 3.2.1.2 Product Liability........................................... 47 3.2.1.3 Method of Calculation .................................. 48 3.2.2 Personal Injury and Damages for Non-Pecuniary Loss in Italy ........................................................................ 49 3.2.2.1 General System ............................................ 49 3.2.2.1.1 Damages for Non-Pecuniary Loss that are Recoverable .................................. 52 3.2.2.1.2 Damages for Non-Pecuniary Loss that are not Recoverable ............................ 52 3.2.2.2 Product Liability ........................................... 53 3.2.2.3 Method of Calculation .................................. 54 3.3 The Single Rule .................................................................... 55 3.3.1 Personal Injury and Damages for Non-Pecuniary Loss in France ..................................................................... 55 3.3.1.1 General System ............................................ 55 3.3.1.1.1 Damages for Non-Pecuniary Loss that are Recoverable ................................... 56 3.3.1.1.2 Damages for Non-Pecuniary Loss that are not Recoverable ............................. 58 3.3.1.2 Product Liability ........................................... 58 3.3.1.3 Method of Calculation .................................. 60

4. Analysis of Thai Laws .................................................................... 63 4.1 The Problem Concerning Recovering Damages for Pure Non-Pecuniary Loss under Thai Tort Laws in Case of Living Claimants ................................................................. 64 4.1.1 Regarding Recovering Damages for Pure Non- Pecuniary Loss under the Thai Civil and Commercial Code ........................................................................... 64 4.1.2 Regarding Recovering Damages for Damage to Mental State under the Liability for damages Arising From Unsafe Product Act ........................................... 69 4.1.2.1 The Status of Damage to Mental State under Liability for Damages Arising from Unsafe the Products Act .......................................... 69 4.1.2.2 The Different Terms Used between the Thai Civil and Commercial Code and the Liability for Damages Arising from Unsafe Products Act ............................................................... 72 4.1.3 Regarding Possible Solutions in order to Bypass Legal Restriction ......................................................... 74 4.1.3.1 Models in Use .............................................. 74 4.1.3.1.1Models of Tort ..................................... 74 (i) Unrestricted Plurality ...................... 74 (ii) Restricted Pluralism ....................... 74

viii

(iii) The Single Rule ............................ 74 4.1.3.1.2 Models of Non-Pecuniary Loss ........... 75 (i) Plural Loss with Single Sum............ 75 (ii) Single Loss with Single Sum .......... 75 (iii) Single Loss referring to Various Elements with Single Sum............. 75 4.1.3.1.3Models of Granting Damages for Pure Non-Pecuniary Loss in Case of Living Claimants ................................ 75 (i) Allowance ....................................... 75 (ii) Non-Allowance .............................. 76 (iii) Restricted Allowance .................... 76 4.1.3.2 Possible Solutions ........................................ 76

4.1.3.2.1 Introducing Unified Interpretation of ‘Any Right of another Person’ ........ 78

4.1.3.2.2 Introducing a New Interpretation of ‘Injury to Body’ ................................... 79 4.1.3.2.3 Introducing a New Interpretation of ‘Injury to Health’ ................................. 80 4.1.3.2.4 Amending the Laws ............................ 81 (i) Amending the Thai Civil and Commercial Code ........................... 81 (ii) Amending the Liability for Damages Arising from Unsafe Products Act .................................. 85 4.1.3.2.5 Introduce the Concept of Secondary Victim ............................... 86 (i) Under the Thai Civil and Commercial Code ........................... 86 (ii) Under the Liability for Damages Arising from Unsafe Products Act .................................. 88 4.2 The Problem of Recovering Damages for Non-Pecuniary Loss in Case of Injury to Life ............................................... 88 4.2.1 Models of Recovering Damages for Non-Pecuniary Loss in Case of Injury to Life ...................................... 89 4.2.1.1 Models of Suing ........................................... 89 4.2.1.1.1 Against the Estate ............................... 89 4.2.1.1.2 By the Estate ....................................... 89 4.2.1.1.3 By the Relatives of the Deceased ........ 89 (i) Allowance ......................................... 90 (ii) Non-Allowance ................................ 90 (iii) Restricted Allowance ...................... 90 4.2.2 Regarding Damages for Non-Pecuniary Loss in Case of Injury to Life .......................................................... 90 4.2.2.1 Under the Thai Civil and commercial Code .. 90 4.2.2.1.1 Damages for Bereavement .................. 90

ix

4.2.2.1.2 Inheritability ....................................... 91 4.2.2.1.3 Damages for Loss of Life (Value of Life) ................................................... 91 4.2.2.2 Under the Liability for Damages Arising from Unsafe Products Act............................. 91 4.2.3 Regarding Possible Solutions in order to Provide Full Compensation in Case of Injury to Life................ 92 4.2.3.1 Under the Thai Civil and commercial Code .. 94 4.2.3.1.1 Damages for Bereavement .................. 94 4.2.3.1.2 Inheritability ....................................... 96 4.2.3.1.3 Damages for Loss of Life (Value of Life) ................................................... 97 4.2.3.2 Under the Liability for Damages Arising from Unsafe Products Act............................. 98 4.3 The Problem Concerning the Lack of Legal Method of Calculation ........................................................................... 98 4.3.1 Models of Method of Calculation ................................ 98 4.3.1.1 Legal Method ................................................ 98 4.3.1.2 Medio-Legal Method ..................................... 99 4.3.2 Issue Concerning the Lack of Legal Method of Calculation ................................................................. 99 4.3.2.1 To Prevent Inequality ................................... 100 4.3.2.2 To Prevent Incompetent Deterrence Effect ... 101 4.3.2.3 To Eliminate the Obstacle in Settlement ....... 102 4.3.2.4 To Ensure the Ceiling of Punitive Damages under the Liability for Damages Arising from Unsafe Products Act............................. 103 4.3.3 Regarding Economic Method of Calculation ............... 104

4.3.3.1 Regarding Value of Life ............................... 104 4.3.3.1.1 Human Capital Approach (HK) ........... 105 4.3.3.1.2 Willingness-to-Pay Approach (WTP) .. 105 (i) Value of Statistical Life (VSL) .......... 106 (a) Revealed Preference Method ..... 106 (b) Contingent Valuation Method .... 107 (c) Meta-Analysis Method .............. 107 (ii) Value of Statistical Injury (VSI) ....... 108 (iii) Hand Rule ....................................... 108 4.3.3.1.3 Linking Human Capital Approach and Willingness to Pay Approach ....... 109 4.3.3.1.4 Marxist Model .................................... 109 4.3.3.2 Regarding Value of Statistical Injury (VSI) . 109 4.3.3.3 Regarding Relation between Wealthiness and Healthiness ........................................... 110 4.3.4 Introducing Economic Method of Calculation to Legal System .............................................................. 111 4.3.4.1 Approaching Economic Method of Calculation of Damages for Loss of Life

x

(Value of Life).............................................. 113 4.3.4.1.1 Pure Economic Method ....................... 114 4.3.4.1.2 Eco-Humano Method .......................... 115 4.3.4.2 Approaching Economic Method of Calculation of Damages for Bereavement ..... 116 4.3.4.3 Approaching Economic Method of Calculation of Damages for Non- Pecuniary Loss in Case of Living Claimants . 118 4.3.4.3.1 Determining Damages for Non- Pecuniary Loss according to the Utility Level of Damages for Bereavement ....................................... 118 4.3.4.3.2 Determining Damages for Non- Pecuniary Loss according to the Value of Life in Pure Economic Method ....... 119 4.3.4.3.3 Determining Damages for Pain and Suffering ...................................... 122 4.3.5 Punitive Damages ....................................................... 123 4.3.5.1 Under the Thai Civil and Commercial Code .. 124 4.3.5.2 Under the Liability for Damages Arising from Unsafe Products Act ............................. 124

5. Conclusions and Recommendations ................................................... 125

5.1 Conclusions .......................................................................... 125 5.2 Recommendations ................................................................ 127

Bibliography .............................................................................................. 135

1

CHAPTER 1

INTRODUCTION

1.1 Backgrounds and Problems

The law of tort has been engaged in the society for a great deal of time and since we coded our Thai Civil and Commercial Code (TCCC) B.E. 2468, each person in the society has been having their own personal zone that no one could agitate. However, it could not provide full compensation for injured persons because of its legal restriction e.g., section 446 concerning personal injury damages for non-pecuniary loss. The society knows well that damages occur in present days tend to be more serious and complex than they were in previous days because of many new ingredients in this material world, basically new technologies such as high-speed cars and chemical substances. The example of one of personal injury lawsuits is the popcorn case in the United States of America (U.S.A.) that the plaintiff was able to recover damages for the reduction of his lung capacity after many years working in the popcorn factory1. This case showed that one injury caused not only result only pecuniary loss but also non-pecuniary loss. In Thai law of Tort, section 446 of the TCCC, grants the right to claim damages for non-pecuniary losses if such non-pecuniary losses are accompanied with injury to body, health or liberty. However, in reality, non-pecuniary loss can be occurred independently2. Also, it usually happens in case of injury to life i.e., bereavement3. Compensation for these losses cannot be recovered under section 446 therefore when drafting the new Liability for Damages Arising from Unsafe Products Act B.E. 2551(the Liability for Damages Arising from Unsafe Products Act), in time when it was being considered, the committee has put damage to mental state as a kind of damage therein in order to guarantee that damages for pure non-pecuniary loss alone, to be exact, damage to mental state is recoverable4. Moreover, this new regime should lead the new interpretation for the present section 420 and section 446 to cover pure non-pecuniary loss seeing that one Magistrate Court has already applied this new way of interpretation5. The issue concerning this new way of interpretation will later be discussed in Chapter 4. Notwithstanding the

1 Robert Kreisman, Illinois 'Popcorn Lung' Case Receives $30.4 Million From Cook County Jury - Solis v. BASF Corp. (August 16, 2010), available at http://www.chicago-personal-injury-lawyer blog.com/2010/08/illinois_popcorn_lung_case_rec.html. 2 See Chadwick v British Rlys Board [1967] 1 WLR 912 (The Court awarded damages for nervous shock when the symptoms were described to include „depression‟) cited in Vivienne Harpwood, Modern Tort Law, (London: Cavendish Publishing Limited), (6 ed. 2005), p. 39. 3 See Supreme Court decision no. 292/2502 (The compensation for tortious act does not include the compensation for the grief resulted from loss of a child.). 4 เอกสารประกอบการพจารณา รางพระราชบญญตความรบผดตอความเสยหายทเกดขนจากสนคาทไมปลอดภย พ.ศ. ...จดท าโดยส านกงานคณะกรรมการกฤษฎกา, สงหาคม, 2550, หนา 10 (Document Preparing in the Drafting of the Liability for Damages Arising from Unsafe Products Act B.E. …, the Council of State, August, 2007, p. 10) [hereinafter The Council of State’s Minute]. 5 ผจดการ (Manager Newspaper Report), available at http://www.decha.com/main/showTopic.php?id=3047.

2

intention to solve such problem, the Liability for Damages Arising from Unsafe Products Act is somehow drawing a blur line between the interpretation of “non-pecuniary loss” in TCCC and “damage to mental state” in the Liability for Damages Arising from Unsafe Products Act in which the author will analyze this issue later on in Chapter 4 as well.

Speaking of recovery damages for non-pecuniary loss, there are lots of theses

which had already mentioned about this kind of damages. Some of these theses are, first, thesis of Ms. Nowlphan Ngaosuwan6 was written in B.E. 2517 since the concept of damages for non-pecuniary loss was not yet as clear as in present. Second, thesis of Mr. Paakphum Pongchaiyaphum7 was written in different aspect. He collected the Supreme Court decisions and extracted the principle out of those decisions in order to determine whether the Court tends to grant damages for non-pecuniary loss or not. Furthermore, he has made his aspect over the Liability for Damages Arising from Unsafe Products Act by comparing the protection provided under the Liability for Damages Arising from Unsafe Products Act with the protection provided under the TCCC. Finally, he pointed out his view that Liability for Damages Arising from Unsafe Products Act was enacted in the attempt to fill the gap concerning damages for pure non-pecuniary loss in the TCCC. However, Mr. Paakphum did not mention the different terms between „non-pecuniary loss‟ in the TCCC and „damage to mental state‟ in the Liability for Damages Arising from Unsafe Products Act. Third is a recently published thesis of Mr. Jakarin Kohomase8 who concentrated on damages for mental injury under the law of torts and the lack of method of calculation. He suggested that mental injury should be regarded as injury to health and suggested guideline frames in order to assess amount of damages. He also recommended allowing recovery for damages in case of injury to life. For this thesis, the author will focus on the TCCC concerning personal injury and damages for non-pecuniary loss in connection with damage to mental state and damages for damage to mental state in the Liability for Damages Arising from Unsafe Products Act to prove that the attempt to fill the gaps concerning damages for pure non-pecuniary loss in the TCCC has not yet been fulfilled. Also, the author will focus on the lack of method of calculation concerning damages for non-pecuniary loss in case of personal injury. In particular, the problems exist in present are:

6 นวลพรรณ งาวสวรรณ, คาเสยหายทางศลธรรม, (วทยานพนธนตศาสตรมหาบณฑต, คณะนตศาสตร, จฬาลงกรณมหาวทยาลย) (2517) (Nowlphan Ngaosuwan, Moral Damages, (Master Degree Dissertation, Faculty of Law, Chulalongkorn University) (1974)). 7 ภาคภม พองชยภม, ปญหาการก าหนดคาสนไหมทดแทนเพอละเมดตามประมวลกฎหมายแพงและพาณชย, (วทยานพนธนตศาสตรมหาบณฑต, คณะนตศาสตร, มหาวทยาลยธรรมศาสตร) (หองสมดสญญา ธรรมศกด มหาวทยาลยธรรมศาสตร) (2552) (Paakphum Pongchaiyaphum, Problems Concern Determination of Damages According to Civil and Commercial Code, (Master Degree Dissertation, Faculty of Law, Thammasat University) (on file with Sanya Thammasak Library, Thammasat University) (2009)). 8 จกรนทร โกเมศ, คาเสยหายส าหรบความเสยหายทางจตใจตามกฎหมายลกษณะละเมด (วทยานพนธนตศาสตรมหาบณฑต, คณะนตศาสตร, มหาวทยาลยธรรมศาสตร) (หองสมดสญญา ธรรมศกด มหาวทยาลยธรรมศาสตร) (2553) (Jakarin Kohomase, Damages for Damage to Mental Injury under Law of Torts (Master Degree Dissertation, Faculty of Law, Thammasat University) (on file with Sanya Thammasak Library, Thammasat University) (2010)).

3

1.1.1 The Problem of Recovering Damages for Pure Non-Pecuniary Loss under the Thai Civil and Commercial Code and the Liability for Damages Arising from Unsafe Products Act in Case of Living Claimants

As to Supreme Court‟s decisions, Thai Courts recognize and grant damages

for non-pecuniary loss only if such non-pecuniary loss is accompanied with physical injury i.e., injury to body, health or liberty, a strict interpretation as per the wording of section 446 of the TCCC9. Thai Courts refuse to grant damages for pure non-pecuniary loss reasoned that „no statutory law provides compensation for such loss‟10. This is, of course, not complying with today‟s situation where pure non-pecuniary loss is proved to be existed by medical profession seeing that mental injury was recognized in international level e.g., Post Traumatic Stress Disorder 1980 Act of the U.S.A. which later, in B.E. 2536, Medical Council of Thailand has also recognized it as well11. The attempt to fill this gap has been showed by the enactment of the new Liability for Damages Arising from Unsafe Products Act; when the Council of State put it clearly that damage to mental state, along with its definition, will be recognized and shall be subjected to compensation12. This attempt is also to guide the new interpretation to the Court to interpret damage to mental state as a state of damage in section 420 of the TCCC13. However, the hidden problem found is the question whether damages for non-pecuniary loss in section 446 of the TCCC positions itself as the same state as the position of damages for damage to mental state in section 11(1) of the Liability for Damages Arising from Unsafe Products Act. To be exact, is damage to mental state in the Liability for Damages Arising from Unsafe Products Act regarded as a state of damage similar to section 420 of the TCCC or is it regarded to be only a state of compensation similar to section 446 of the TCCC? If it is regarded as the same state as section 446 of the TCCC then, why enacted them separately? In contrast, if they are not regarded as the same state then, why does section 11(1) of the Liability for Damages Arising from Unsafe Products Act determine the conditions as if damage to mental state alone is not subjected to compensation? Also, this confusion is drawing a blur line between the interpretation of „non-pecuniary loss‟ in TCCC and „damage to mental state‟ in the Liability for Damages Arising from Unsafe Products Act14. Moreover, Thai law does not have the

9 TCCC § 446 (In case of injury to the body or health of another, or in the case of deprivation of liberty, the injured person may also claim compensation for the damage which is not a pecuniary loss.‟ „The claim is not transferable, and does not pass to the heirs, unless it has been acknowledges by contract, or an action on it has been commenced. A like claim belongs to a woman against whom an immoral crime is committed.‟). 10 See Supreme Court decision no. 2816/2528 (The sadness resulted from the wrong statement in the telegraph does not raise the right to claim for damages) cited in Anan Chantara-opakorn, Personal Injury and Damages for Non-Pecuniary Loss in the Law of Thailand, Law in the Changing World (Presented at the 4th international conference on „Law in the Changing World‟ organized by Faculty of Law, Thammasat University) (9 December 2009), available at law.tu.ac.th/news/2552/Nov/News.pdf. 11 ชทตย ปานปรชา, จตเปนเหต, (กรงเทพมหานคร: ส านกพมพคลนกสขภาพ), 2544, หนา. 298-299 (Chutit Panprecha, The Mind is the Reason, (Bangkok: Clinic Suk Ka Parb Publisher), 2001, pp. 298-299). 12 The Council of State’s Minute, supra note 4. 13 Id. 14 Anan Chantara-opakorn, Personal Injury and Damages for non-pecuniary loss in the Law of Thailand, Law in the Changing World (Presented at the 4th international conference on “Law in the

4

concept of secondary victim while it exists in other jurisdictions15therefore, in Thailand, third party, even got mentally injured by the incident, will not be able to recover damages for their non-pecuniary loss. Nevertheless, as no Supreme Court decision was ever made, it is not certain that the Court will follow the new interpretation by referring to the special law, named the Liability for Damages Arising from Unsafe Products Act, or not. Nevertheless, only the injured person has the right to claim compensation for non-pecuniary loss while in reality, some may be suffered from the accident without having to be in the actual accident.

1.1.2 The Problem of Recovering Damages for Non-Pecuniary Loss in Case of Injury to Life

The TCCC section 443 mentions damages which is recoverable in case of

injury to life. But it does not put damages for non-pecuniary loss as a proper head of damages that is recoverable in case of injury to life. Therefore the Court, instead of granting damages for non-pecuniary loss in case of injury to life by referring to section 438 of the TCCC, the Court refuses to grant damages for non-pecuniary loss in case of injury to life by a standard rejection term stated „no statutory law provides compensation for such loss‟16; strict interpretation of section 443. Likewise, damages for non-pecuniary loss in case of injury to life cannot be recovered under section 446 either. Later, the Liability for Damages Arising from Unsafe Products Act, in order to fill this gap, mentions that damages for damage to mental state will be granted in case of injury to life as per section 11(1) of the Liability for Damages Arising from Unsafe Products Act. Nevertheless, the Liability for Damages Arising from Unsafe Products Act does not specify whether damages for damage to mental state that the persons listed in section 11(1) of the Act are entitled to recover damages means the inheritability of the deceased‟s right to claim damages for the deceased‟s damage to mental state, and/or for value of the deceased‟s life, or it does mean the persons listed in section 11(1) of the Act‟s right to claim damages for their damage to mental state resulted from the death of the deceased i.e., damages for bereavement. 1.1.3 The Problem Concerning the Lack of Method of Calculation Concerning Damages for Non-pecuniary Loss.

Both the TCCC and the Liability for Damages Arising from Unsafe Products

Act are still silent on the method of calculation relating to damages for non-pecuniary loss. The only section which concerns the regime of granting compensation for non- Changing world” organized by Faculty of Law, Thammasat University) (9 December 2009), available at law.tu.ac.th/news/2552/Nov/News.pdf. 15 Vivienne Harpwood, Modern Tort Law, (London: Cavendish Publishing Limited), (6th ed. 2005), p. 48. (In the decision of Alcock, Lord of Justice has defined a secondary victim as someone who is not a direct participant but merely witnesses an accident or arrives in the after math of an accident, „a passive and unwillingness witness of injury caused to others‟. In his Lordship‟s view, such a person is almost always outside the range of foreseeable physical injury.). 16 See Supreme Court decision no. 292/2502, supra note 3.

5

pecuniary loss is section 438 of the TCCC. It empowers the Court to grant compensation according to the circumstances and the gravity of loss which would be decided by the Courts‟ discretion, subject to the plaintiff‟s claim17. Different judges bring about vary level of discretion that could bring inequality under the laws. The claimants in similar situations may receive different amount of damages18. Besides, having no method of calculation, the ceiling for punitive damages under the Liability for Damages Arising from Unsafe Products Act section 11(2) will not be well-functioned since no actual ceiling of punitive damages can be calculated as to comply with the suppose-to-be real intention of the Liability for Damages Arising from Unsafe Products Act19. As to the problem, the law should find the uniform method of calculation so as to guide the Court of the amount of damages for non-pecuniary loss which will be granted as per the TCCC and damages for damage to mental state granted as per the Liability for Damages Arising from Unsafe Products Act.

1.2 Hypothesis While pure non-pecuniary loss exists, damages for pure non-pecuniary loss in the law of torts in case of personal injury still have gaps to be fulfilled since damages for pure non-pecuniary loss and damages for non-pecuniary loss in case of injury to life are not recoverable under the TCCC neither for primary victim nor secondary victim. Moreover the Liability for Damages Arising from Unsafe Products Act which was enacted in attempt to fulfill these gaps has not accomplished its goal because the wording in the Act itself literally leads to ambiguous meaning concerning the state of „damage to mental state‟ and the right to claim damages for non-pecuniary loss in case of injury to life. Furthermore, section 438 of the TCCC that gives the discretionary power to the Court to determine the amount of damages as he deemed appropriate can bring inequality to the society even it is governed by the same law. 1.3 Objectives of Study The objectives of this study are first, to provide full compensation for injured persons, also for secondary victims, in case of personal injury by seeking for the uniform and the best interpretation of the law. Second, this study aims to guarantee,

17 Thai Civil Procedure Code § 142 (A judgment or order of a Court disposing of a case shall decide on every claim in the plaint, but no judgment or order shall be given for anything in excess of or not included in such plaint, …). 18 See Supreme Court decision no. 247/2538 (The defendant recklessly drove and finally caused an accident; the claimant was in the car and was seriously injured. He became a disabled person for the rest of his life. He was awarded 137,617 Baht for his non-pecuniary loss.) But See Supreme Court decision no. 4859/2538 (The defendant was an government institution who installed bare wire in public place without informing the public, the claimant who got electric shock, resulted damage to his brain and was paralyze for the rest of his life. He was not awarded any damages for his non-pecuniary loss.) cited in in รายงานฉบบสมบรณ การวเคราะหกฎหมายดวยวธทางเศรษฐศาสตร: การคดคาเสยหายในคดละเมด, โครงการวจยเรองการวเคราะหกฎหมายดวยวธทางเศรษฐศาสตร, สถาบนวจยรพพฒนศกด, ส านกงานศาลยตธรรม, สถาบนวจยเพอการพฒนาประเทศไทย, ตลาคม, 2553, หนา 5-3 (The Complete Report of Law and Economics: Calculating Tortious Damages, Rapee Pattanasak Institute, October, 2010, pp. 5-3). 19 The Council of State’s Minute, supra note 4, at 17-18.

6

by introducing a new approach in assessing damages for non-pecuniary loss, equality for injured persons in similar cases which should lead to a better society. 1.4 Scope of Study

The scope of this thesis is to study damages for non-pecuniary loss in case of

personal injury and death under the TCCC and the Liability for Damages Arising from Unsafe Products Act. The contents of each chapter would be as follow;

Chapter 2, in the early part, will reveal the study of preliminary information of tortious liability and tortious compensation. The late part of the chapter will reveal the study of personal injury and damages for non-pecuniary loss under the TCCC and the Liability for Damages Arising from Unsafe Products Act along with some of the Supreme Court‟s decisions.

Chapter 3 will reveal the study of foreign jurisdictions‟ approach concerning damages for non-pecuniary loss in case of personal injury. These jurisdictions are England, Germany, Italy and France. The study will cover their general tortious liability system, the product liability law and the method of calculation. These different jurisdictions are applying different approach. They, however, have long been experiencing these issues concerning damages for non-pecuniary loss. In order to succeed in solving our current problems, the comparative study of the experienced jurisdictions would certainly guide our system of the appropriate approach.

Chapter 4 will reveal the analysis of Thai laws regarding the existing

problems. And with regard to the solutions under foreign jurisdictions, economics and the author‟s opinion on humanity, the author will analyze the possible solutions for the present problems.

Chapter 5 will be the conclusion of the problems and final recommendations

that the author will make with the aim of providing full compensation i.e., compensation for non-pecuniary loss will be recoverable without having to be accompanied with injury to body, health or liberty and, to guarantee equality i.e., consistency on the amount of damages for non-pecuniary loss which will be awarded by the Court.

1.5 Methodology The author has studied by documentary research both domestic and non-

domestic materials including the articles from scholars in economics field and medical field. Also, the author has studied from electronic database. After reading all materials, the author has made an analysis of the approach taking by Thai Courts and find out the problem of such approach. Then the author has analyzed the problem, with regard to the solutions in foreign jurisdictions, the view of the economists, medical professions, and humanity prospective then, has made recommendations for

7

the new approach which is able to provide full compensation and equality for the victims. 1.6 Expected Results

The results of this study are certainly the right of the injured person and the

secondary victims to claim for their full compensation in case of personal injury. Additionally, the author expects to at least, demonstrate the alternative approach for the assessment of damages for non-pecuniary loss in order to achieve consistency and equality for the victims in similar circumstances as they are governed by the same Constitution.

8

CHAPTER 2

PERSONAL INJURY AND DAMAGES FOR NON-PECUNIARY LOSS UNDER THE LAW OF THAILAND

2.1 Evolution of Tortious Liability and Compensation in the Law of Thailand

The principle of Thai law commenced from “Pra Tham Ma Sart” of Hindu. The governor of the Kingdom, the King, is able to establish details of laws called “Ra Cha Sarn” as long as they do not conflict with the principle of “Pra Tham Ma Sart”. This is because Thai people believe that principles in “Pra Tham Ma Sart” are not created by any living individual, in contrast principles in “Pra Tham Ma Sart” were extracted from what are already existed in nature20. As the society is fond of religion, morality and this “Pra Tham Ma Sart” therefore Thai law has never supported the kind of revenge action; unlike the principle in Roman law called „An eye for an eye, a tooth for a tooth‟. Seeing that since “Ayudthaya” Era, the law has always prohibited the victim to punish the thief by himself (“Kod Kmay Luk Sa Na Joarn”). Such similar principle still be found in our present laws for example; the Thai Criminal Code prohibits the person who consents to be in a quarrel to bring a lawsuit to the Court; and in civil matter, if the injured person involves in the incident, damages will be resulted in an amount less than the actual loss21. Back to “Ayudthaya” Era, even it prohibited revenge action, it granted fine as compensation. The fine would be divided into two parts, one for the injured person and another for the state as the fees. Soon after, the society thought that to punish by payment is not enough therefore, the law seeks to punish the wrongdoer by physical means resulted criminal law22. Since criminal law was recognized, damages from tortious liability is no more distributed for the state, tortious liability thus became fully civil matter. Compensation in the old age had been fixed according to the right of possession of farmland (“ศกดนา”) of the tortfeasor but in present, the Court takes into account financial and social status of both parties in order to determine the amount of damages23. And from the influence of European countries in colonization era, Thailand was forced to codify its Civil Code. The finalized code in tort law was drafted from the principle of German Civil Code (BGB)24. The draft, during that time, 20 แสวง บญเฉลมวภาศ, ประวตศาสตรกฎหมายไทย, (กรงเทพฯ: ส านกพมพวญญชน) (พมพครงท 2, 2551) หนา 89 (Sawhang Boonchalermvipart, The Thai Legal History, (Bangkok: Winyuchon Publisher), (2d ed. 2008), p. 89). 21 See Supreme Court decision no. 765/2533 (The deceased did not cross the road in the area provided by the authority. However, the defendant was more reckless to not reduce the speed when driving across the function. The Court may reduce damages from the actual loss because the deceased recklessly crossed the road and was a part of this tortious incident.). 22 วชา มหาคณ, หลกกฎหมายละเมดศกษาจากค าพพากษาฎกา, (กรงเทพฯ: สวางสทธการพมพ), (พมพครงท 1, 2523), หนา 6 (Vicha Mahakoon, Tort: Study from Supreme Court Decisions, (Bangkok), (1980), p. 6). 23 ไพจตร ปญญพนธ, ค าอธบายประมวลแพงและพาณชยลกษณะละเมดพรอมดวยภาคผนวกตารางความรบผดตางๆคาสนไหมทดแทนและนรโทษกรรม, (กรงเทพฯ: ส านกพมพนตบรรณาการ), (พมพครงท 11, 2548), หนา 164 (Paijit Boonyapan, Explanation Civil and Commercial Code: Tort, (Bangkok: Nitibunnakarn Publisher), (11th ed. 2005), p. 164). 24 Sawhang Boonchalermvipart, supra note 20, at 254.

9

already recognized damages for non-pecuniary loss in case of personal injury25. The principle of compensation in B.E. 2466 is also to bring the injured person back to the position he would have been had tort not occurred26 or bring back the “status quo ante” of the injured person.

2.2 Grounds of Tortious Liability In order to understand the grounds of tortious liability one must understand the

meaning of right. Right means the benefit that each person shall obtain and is able to raise up against others27 because it is guaranteed and protected by the law28. Rights of a person can be simply divided into 2 types which are absolute rights and relative rights. The absolute rights are „Rights‟ that are guaranteed by the law in which each person is able to raise them up against all others while relative rights are guaranteed by the law only to raise up against some specific persons who have special and specific relationship with one another. The examples of some of the absolute rights are property rights and personal rights (life, body29, health and liberty). The example of a relative right is the right that resulted from a special relationship e.g., contractual rights and creditor-debtor. Tortious liability occurs when there is a breach of duty of care to an absolute right of others in which resulted injury, regardless of any pre-existing relationship e.g., any contract that the parties might entered prior to the incident30. Furthermore, even the relation is governed by a contract, but in case such breach has caused injury to an absolute right of others, the injured person is able to pursue his claim either base on contractual liability or tortious liability31, the Court is empowered to specify the kind of right which is being violated. However, claiming under contractual liability may give you series of lawsuit because it governs by the doctrine of privy of contract. On the other hand, claiming under tortious liability will allow you to file a single lawsuit directly against the wrongdoer, because everyone is subjected to respect the absolute rights of others.

25 TCCC B.E. 2466 § 201 (In case damage to body, compensation shall be medical expenses, loss of income and the indemnity for the pain and suffering the injured person has to bare.). 26 TCCC B.E. 2466 § 198 (Compensation shall be (1) to return the property taken or paid for such loss of property incurred from the tortious act (2) pay compensation for the damage occurred.). 27 ปรด เกษมทรพย, กฎหมายแพง: หลกทวไป, กรงเทพฯ, (พมพครงท 5, 2526), หนา 83-85 (Pridi Kaseamsub, Civil Law: General Principle, Bangkok, (5th ed. 1983), pp. 83-85). 28 หยดแสงอทย, ความรกฎหมายทวไป, (กรงเทพฯ: ส านกพมพธรรมศาสตร), (พมพครงท 10, 2527), หนา 34 (Yud Sang-utai, General Principle of Law, (Bangkok: Thammasat Publisher), (10th ed. 1984), p. 34). 29 สมยศ เชอไทย, ความรกฎหมายทวไป, (กรงเทพฯ: ส านกพมพวญญชน), (พมพครงท 15, 2551), หนา 153 (Somyod Chueathai, General Principle of Law, (Bangkok: Winyuchon Publisher), (15th ed. 2008), p. 153). 30 Anan Chantara-opakorn, supra note 14, at 2. 31 See Supreme Court decision no 2692/2517 (The plaintiff filed lawsuit against the defendant in order to banish the defendant from the premise. Even the plaintiff did not mention about the intention of the defendant, when the contract has been rightly terminated, the defendant has possessed the premise without any right to do so. This was regarded as an act which intentionally made and, such act wrongfully injured the right of the plaintiff. The complaint is not obscure.).

10

2.2.1 Liability for One’s Own Act 2.2.1.1 General Ground of Tortious Liability (Fault Based Liability)

The general ground of tortious liability is found in section 420 of the TCCC

which provides „A person who, willfully or negligently, unlawfully injures the life, body,

health, liberty, property or any right of another person, is said to commit a wrongful act and is bound to make compensation therefor.‟

This general ground of liability is premised on the concept of liability based

on fault. The liability based on fault is an attitude of a person acting tort either intentionally or negligently32. This means that if an act was not committed willfully or negligently, it would not be qualified as tortious act thus not subjected to tortious compensation33.

2.2.1.2 Specific Ground of Liability (Presumption of Fault)

The specific grounds of tortious liability in the TCCC were enacted to favor

the injured person as the injured person only has to prove that the assumptions provided in the provisions concerning specific ground of liability are met. However, the provisions concerning specific grounds of liability have to be interpreted strictly34. Such provision is, for example, section 437 of the TCCC stated „a person is responsible for injury caused by any conveyance propelled by mechanism which is in his possession or control; unless he proves that the injury results from force majeure or fault of the injured person. The same applies to the person who has in his possession things dangerous by nature or destination or on account of their mechanical action‟. Mostly, the lawsuits applying this section are those of motor accidents (only in case where the accident caused by motor against natural person). The other provisions are for example, sections 433, 434 and 436 of the TCCC.

32 Anan Chantara-opakorn, supra note 14, at 3. 33 See Supreme Court decision no.926/2539 (The defendant imitated the plaintiff‟s trademark and registered it with a different kind of product. But the defendant has not sold the products yet. The plaintiff failed to prove damage which directly resulted from such act. Therefore, the defendant is not responsible for damages) cited in ศนนกรณ (จ าป) โสตถพนธ, ค าอธบายกฎหมายลกษณะ ละเมด จดการงานนอกสง ลาภมควรได, (กรงเทพฯ: ส านกพมพวญญชน), (พมพครงท 2, 2552), หนา 78 (Sanunkorn (Jumpee) Sodtiparn, Explanation of Torts Manage without Mandate Undue Enrichment, (Bangkok: Winyuchon Publisher), (2d ed. 2009), p. 78). 34 จด เศรษฐบตร, หลกกฎหมายแพงลกษณะละเมด, โครงการต าราและเอกสารประกอบการสอน, คณะนตศาสตร มหาวทยาลยธรรมศาสตร, (กรงเทพฯ: ส านกพมพเดอนตลา), (พมพครงท 6, 2550), หนา 179-180 (Jeed Seadtabud, The Principle of Tort, Faculty of Laws, Thammasat University, (Bangkok: Deauntula Publisher), (6th ed. 2007), pp. 179-180).

11

2.2.1.3 Strict Liability (No-Fault Based Liability) A new ground of tortious liability named strict liability was enacted in the

Liability for Damages Arising from Unsafe Products Act B.E. 2551. It imposes liability on the business operators for the injury caused by the unsafe product. It is a strict liability because the condition of fault of the operators was not required35; may call it as no-fault based liability. In other word, there is no need to indicate the attitude of fault. The thing that the injured person only has to prove is that the injury was caused because he consumed the unsafe product in a usual way36. The defense that the product was safe will be rest on the business operators.

In the U.S.A., the strict liability approach applying with unsafe products arose

from Roger Traynor J. of California Supreme Court in Escola v. Coca Cola Bottling Co. of Fresno37 who explained that the injured person can hardly prove of the manufacturer‟s negligence. The strict liability will allow incentive of the producer to be more careful with his products. Furthermore, the producer is the suitable person to prevent damage and to buy insurance or to distribute losses by adding the price in his products. In fact, the producer is the one who makes consumers believe that his products are safe and the consumers therefore, believe in that safety.

Even the policy of the product liability law in foreign jurisdictions is to protect

the consumer; they also concern about the growth of commercial activities. Therefore, they do not put producers as absolute guarantors. That is why some countries have adopted the state-of-the-art rule38, especially in the Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products (EC directive); to take into account whether at the time of producing, the producer has enough technology to be aware of such non-safety of the products or not39. Also, their laws do not apply strict liability with the distributors hence, the distributors‟ liability

35 Liability for Damages Arising from Unsafe Products Act § 5 (All entrepreneurs shall be jointly liable for damages occurring to the damaged party from an unsafe product sold to the consumer. This shall apply to intentional damages or damages arising from the negligence of the entrepreneurs); § 6 of the Liability for Damages Arising from Unsafe Products Act (For the entrepreneurs to be liable according to section 5, the damaged party or his prosecuting representative, based on section 10, shall prove that the damaged party sustained damages from the product of the entrepreneurs, and the use or storage of the product was done in a normal manner. However, evidence shall not be required to the effect that the damages occurred from the Action of a particular entrepreneur.).

36 Id. 37 See Escola v. Coca Cola Bottling Co. of Fresno, Cal. 2d 453, 150 P. 2d 436 (1944) cited in อนนต จนทรโอภากร, กฎหมายวาดวยความรบผดเพอความเสยหายอนเกดจากสนคาทขาดความปลอดภย, โครงการต าราและเอกสารประกอบการสอน, คณะนตศาสตร มหาวทยาลยธรรมศาสตร, (กรงเทพฯ: ส านกพมพเดอนตลา), 2545, หนา 23 (Anan Chantara-opakorn, Product Liability Law, Faculty of Laws, Thammasat University, (Bangkok: Deauntula Publisher), (2002), p. 23). 38 อนนต จนทรโอภากร, กฎหมายวาดวยความรบผดเพอความเสยหายอนเกดจากสนคาทขาดความปลอดภย, โครงการต าราและเอกสารประกอบการสอน, คณะนตศาสตร มหาวทยาลยธรรมศาสตร, (กรงเทพฯ: ส านกพมพเดอนตลา), 2545, หนา 54 (Anan Chantara-opakorn, Product Liability Law, Faculty of Laws, Thammasat University, (Bangkok: Deauntula Publisher), (2002), p. 54). 39 Id.

12

still base on fault based liability40. This is different from the policy of Thai law which could be implied that the law has put more weight on the benefit of the consumer than concentrates on the growth of commercial activities41 since it still does not underpin the state-of-art rule principle42. In all means, the law must find a balance between protection for consumers from unsafe products and the room for producers to cultivate the growth of their commercial activities.

2.2.2 Liability for Other Person’s Fault

Liabilities for other person‟s act are specific rules to some extent in order to deal with the liability other than the liability for one‟s own act43. Even France where it applied the Single Rule model, since the draft of the Code Napoléon, was forced to separate the provisions between liability for one‟s own act and liability for other person‟s fault44. 2.2.2.1 Vicarious Liability

Vicarious liability is when the third person is responsible for the injury caused

by the wrongdoer because of special relationship between the wrongdoer and such third person45. The TCCC has provided provisions concerning vicarious liability such as the liability that arises from the relationship of employer and his employee (section 425-426), the relationship of principal and his agent (section 427) and the relationship of supervisors and the incapacitated persons in his monitor (section 429-431).

2.3 Tortious Compensation 2.3.1 The Meaning and Principle of Tortious Compensation

Tortious compensation does not include only damages granted by the Court

but also include specific performances and other methods that could bring the injured person back to the position he was prior to the tortious act. In fact, if the specific performance can be done, by nature of an injury, so as to bring the injured person back to the position the injured person would have been had tort not occurred,

40 Id. at 55-56. 41 Id. at 54. 42 See Liability for Damages Arising from Unsafe Products Act B.E. 2551. 43 Jean Limpens, Robert M. Kruithof and Anne Meinertzhagen-Limpens, 11 International Encyclopedia of Comparative Law: Tort Ch. 2 Liability for One’s Own Act, p. 8. 44 Id. at 5-8. 45 Id. at 181.

13

according to the principle of full compensation46, then the specific performance shall be the first category of compensation that should be put in concern. However, in some circumstances, it is impossible to bring the injured person back to his prior position because of the nature of injury e.g., loss of a leg and loss of a life. Thus, the law must at least bring the injured person back to the nearest position the injured person once enjoyed, where there is no better way to compensate, money shall be the tool to reimburse such loss known as „damages‟47, granted by the Court.

In conclusion, compensation is to compensate the loss48 whether by damages

ordered by the Court, specific performance or any act that could bring the “status quo ante” to the injured person. Compensation is wider than damages in a sense that it covers the substitution of the loss whether such loss is pecuniary or non-pecuniary e.g., pain and suffering. Overall, the Court tends to order damages to compensate non-pecuniary loss as well as to compensate pecuniary loss because there is no better way of assessment. 2.3.1.1 Principle of Full Compensation Stressing on compensation for non-pecuniary loss, in explaining the principle of full compensation, the author would like to refer to Professor Jeed‟s explanation of “Droits Ex-Patrimoniaux”. The explanation reads „Any right that can turns into terms of money will be the right within the estate of such person (Droits Patrimoniaux). For the personal right which cannot transfer or sell will be put in the category of the right outside the estate (“Droits Ex-Patrimoniaux”)‟49. The damage resulting from tortious act can be in terms of “Droits Patrimoniaux” and “Droit Ex-Patrimoniaux”. Mostly, “Droits Ex-Patromoniaux” cannot make good of the damage by money therefore it cannot turns into terms of money however, it is inevitably to say that some of them can be relieved by using money e.g., nervous shock which may be relieved by taking medicines or scar which can be erased by present Laser Technology. Moreover, if looking straightly, a loss of a car even can be replaced by buying a new car but in fact it does not make good of the old car (real damage) therefore when we replace by the new car it does not mean that we have erase the damage caused but instead, we compensate/give something in return for the damage caused. Hence, it is reasonable

46 ไพจตร ปญญพนธ, ค าอธบายประมวลแพงและพาณชยลกษณะละเมดพรอมดวยภาคผนวกตารางความรบผดตางๆคาสนไหมทดแทนและนรโทษกรรม, (กรงเทพฯ: ส านกพมพนตบรรณาการ), (พมพครงท 12, 2548), หนา 47 (Paijit Boonyapan, Explanation Civil and Commercial Code: Tort, (Bangkok: Nitibunnakarn Publisher), (12th ed. 2005), p. 47). 47 Vicha Mahakoon, supra note 22, at 100. 48 The author use the word compensation according to the present law as of TCCC § 438 however, there is a suggestion from Italian legal profession “De cupis” (DeCupis A., I Danno: Teoria generale della Responsibilità Civile volumn secondo (Giuffré: Milano, 1979, p. 231)) that the law should use the word remedy rather than compensation because, in principle, compensation is supposed to be in terms of money in itself cited in ศนนกรณ (จ าป) โสตถพนธ, ค าอธบายกฎหมายลกษณะ ละเมด จดการงานนอกสง ลาภมควรได, (กรงเทพฯ: ส านกพมพวญญชน), (พมพครงท 2, 2552), หนา 275 (Sanunkorn (Jumpee) Sodtiparn, Explanation of Torts Manage without Mandate Undue Enrichment, (Bangkok: winyuchon Publisher), (2d ed. 2009), p. 275). 49 Jeed Seadtabud, supra note 34, at 79.

14

that we may compensate those of “Droits Ex-Patrimoniaux” as well50 as to provide full compensation to all losses that resulted from tortious act. To be exact, the principle of full compensation provides the right for the injured person to be put in the same position in which the injured person was before the accident without any extra profit51, provided that the injured person can recover compensation both for his pecuniary loss and his non-pecuniary loss.

2.3.1.2 Principle of Fair and Satisfactory Compensation

Mostly full compensation is in itself related to the regime of fair and satisfactory compensation because the core of the principle of full compensation is to bring back the “status quo ante” of the injured person which would certainly has the sense of satisfaction and fairness: that the compensation is granted in full and adequate52. Underlining compensation for non-pecuniary loss, this principle is found in section 253 (II) of German Civil Code (BGB) provides that the injured person is entitled to „fair compensation‟ by payment of money (former section 847). The basic of this principle is found in the judgment of the Great Senate of the Federal Court of 6 July 195553. The Great Senate analyzed that this section has a dual function which is (i) aimed to grant fair compensation to the claimant and; (ii) to compensate the loss by making other amenities possible for the claimant54. But this idea will not accomplish its function in case where the claimant is wealthy enough that he can afford other amenities without receiving damages from the defendant55. However, if we solely stick to this idea of satisfaction, it can be presumed that, in applying this principle financial position would certainly be one of the factors that will be used to assess the amount of damages56. In a different view, Swiss legal system considers „compensation of non-pecuniary loss‟ as contradictory in itself since it cannot be compensate by money and cannot be measured in monetary terms. That is why it introduced the principle of „satisfaction‟ so as to fulfill such gap57. 50 Id. at 83. 51 Basil Markesinis, Michael Coester, Guido Alpa and Augustus Ullstein, Compensation for Personal Injury in English, German and Italian Law, (2005), Cambridge University Press, p. 83. 52 B.S. Markesinis, S.F. Deakin, Tort Law, (4th ed. 1999), (Oxford : Clarendon Press), p. 731. 53 See BGH 6 July 1955, BGHZ 18, 149-68 (The Great Senate has the sole function to decide issues disputed between the Senates of the Federal Court, § 132 Gerichtsverfassungsgesetz) cited in Basil Markesinis, Michael Coester, Guido Alpa and Augustus Ullstein, supra note 51, at 62. 54 See Hermann Lange/Gottfried Schiemann, Schadensersatz, § 7 V 2 with further citations cited in Basil Markesinis, Michael Coester, Guido Alpa and Augustus Ullstein, supra note 51, at 62. 55 Basil Markesinis, Michael Coester, Guido Alpa and Augustus Ullstein, supra note 51, at 62. 56 Hans Stoll, 11 International Encyclopedia of Comparative Law: Torts Ch. 8 Consequences of Liability: Remedies, p. 47. 57 Id. at 37.

15

2.3.2 Legal Beneficiary of Tortious Compensation The beneficiary of tortious compensation is the injured person. In determining

who is the injured person must determine whether the damage caused is qualified as damage or not. To qualify as damage recognized by laws, it must meet three elements as described by Professor Sak Sanongchard.

(i) The damage must be certain, both pecuniary loss and non-pecuniary loss.

The damage that is certain includes damage that would certainly occur in the future58. (ii) The damage must be lawful. Concerning about the „consent‟ of the injured

person, this principle has not been enacted within the Civil and Commercial Code. Such principle rooted from the idiom “Volenti Non Fit Injuria”, meaning that there shall be deemed no injury if the consent to commit such act is given. In applying this principle, the consent must be made willfully before the tortious act is committed; the person who gives such consent must be aware of and understand the possible outcome of the act59.

(iii) The damage must be recognized by the law. The example of the state of

damage recognized under the TCCC are damage resulted from injury to life, body, health, liberty, property and any right of another person (section 420), damage to reputation, credit of another, his earnings, his prosperity in any manner (section 42360) and etc. If damage is not recognized by the law, such damage will not be subjected to compensation.

However, in some cases, the law grants the right to claim for compensation for

third party e.g., the heirs of the injured person in case of death can claim damages for loss of legal support. However, some categories of compensation does not pass to the heirs because of the statutory law i.e., damages for non-pecuniary loss under section 446 of the TCCC.

2.3.3 The Pattern and Types of Tortious Compensation

Compensation granted based on tortious claim are those of specific

performances and/or other measures in order to bring the injured person back to his

58 วชา มนสกล, สรปวชากฎหมายลกษณะละเมด, (กรงเทพฯ: ส านกพมพธรรมสาร), 2537, หนา 104-105 (Vicha Mahnsakul, Tort in a Nutshell, (Bangkok: Thammasarn Publisher), 1994, pp. 104-105) (Damages for future funeral, if the claimant cannot measure the exact amount of loss, the Court has the power to determine the amount of funeral expenses. Also, the Court is able to order an advance payment even if the funeral has not yet been held). 59 Id. at 19. 60 TCCC § 423 (A person who, contrary to the truth, asserts or circulates as a fact that which is injurious to the reputation or the credit of another or his earnings or prosperity in any other manner, shall compensate the other for any damages arising therefor, even if he does not know of its untruth, provided he ought to know it. A person who makes a compensation the untruth of which is unknown to him, does not thereby render himself liable to make compensation, if he or the receiver of the communication has a rightful interest in it.).

16

“status quo ante”, normally the Court will grant damages to compensate the injured person. Damages will be ordered by the Court in one lump sum, once and for all pattern. However, due to the reality, some damage, such as the seriousness of a victim‟s brain which caused him to paralyze after a slight hit by a car, may prevail after the decision of the Court. Therefore the TCCC provides, as per section 444 (2), that „the Court may reserve in the judgment the right to revise such judgment for a period not exceeding 2 years‟.

Mostly, the Court will grant compensation according to the TCCC; the

provisions in the TCCC will determine the category of compensation for each type of tortious act. Regardless of the general principle of compensation in section 438 of the TCCC, the compensation in which is not specifically mentioned by the provisions will not be regarded as a state of damages which could be claimed. For instance, section 446 and section 443 of the TCCC do not mention damages for non-pecuniary loss in case of injury to life therefore the Court will not grant damages for non-pecuniary loss in case of injury to life, neither damages for loss of life nor damages for bereavement, despite the general term in section 438 of the TCCC.

The types of tortious compensation are specific performances and those of

damages. In the part of damages, damages are ordered by the Court to compensate the loss whether such loss is pecuniary or non-pecuniary. The compensation for pecuniary loss is awarded by the Court in form of damages calculating from the actual loss that the injured person has suffered. Similarly, even non-pecuniary loss cannot be measured in terms of money, yet the Court tends to award damages as compensation, determined by the Court‟s discretion as per section 438 of the TCCC; this kind of damages hereinafter called as „damages for non-pecuniary loss‟.

Furthermore, the Court may adjust the amount of damages as he deemed appropriate as per section 438 i.e., vary according to circumstances and gravity of tortious act. Although the Court may exercise his discretion, yet tort system will not allow the injured person to purely benefit from the lawsuit. Therefore in case where there is no loss, there will be no compensation. Nevertheless, the Court may use his discretion to award nominal damages61 for the claimant if there is a prove of technical violation of tort or, in some cases, award for the claimant who fail to provide evidence on the exact amount of damages. In such cases, there may find no connection between the awarded amount and the gravity of tort since the sole purpose of awarding nominal damages is to perfect the tort 62; to acknowledge that there is a tortious act occurred and that the loss resulted from such act, if any, is being compensated.

61 Nominal damages are damages that granted in case where there is no actual loss resulted from the tortious act. It is a small sum of damages that technically granted for the claimant acknowledging that there is a misconduct act occurred but fortunately no actual loss resulted., available at http://en.wikipedia.org/wiki/Damages#Nominal_damages and; พระวรภกดพบลย, ค าอธบายกฎหมายลกษณะละเมด(ชดเรยนงาย), (กรงเทพฯ: แพรพทยา), หนา 55 (Praworrapakpiboon, Explanation of the Law of Torts (Nutshell), (Bangkok: Praepittaya Publisher), p. 55). 62 Beau Baez III , Tort Law in the USA, (2010), Kluwer Law international, ¶ 345 (See also Cowan v. Flannery, 461 N.W. 2d 155, 159 (Iowa 1990).

17

2.4 Personal Injury and Damages for Non-Pecuniary Loss in Light of Thai Law of Tort and the Liability for Damages Arising from Unsafe Products Act (B.E. 2551)

In general, the principle of compensation under tort system is to bring the

injured person back to the position he would have been had tort never happened. The position includes both physical position and conceptual position (mentality state). In fact, the injury caused, in this thesis, personal injury, does not result only pecuniary loss but also non-pecuniary loss. Thai law allows the recovery of damages for non-pecuniary loss with some legal restrictions in which the author will analyze later in Chapter 4.

2.4.1 Definition of Personal Injury Thai Civil and Commercial Code does not explicitly define the word personal

injury but we may refer to section 420 of the Thai Civil and Commercial Code and the idea proposed under some countries‟ laws.

The glossary of the U.S.A. states that „a person‟s right in one self is an

absolute right. Therefore personal injury is the injury not to property, but to a body, mind or emotions63‟ or in other word, injury to a person (normally accompanied with injury to property64). The example of personal injury includes injuries from motor accidents, defective products and medical malpractice. In short, it could be said that personal injury is „any violation of an individual‟s right, other than the rights in property‟65.

For Thai law, under the TCCC, section 420 provides: „A person who, willfully or negligently, unlawfully injures the life, body,

health, liberty, property or any right of another person, is said to commit a wrongful act and is bound to make compensation therefor.‟

According to this provision, damages that fall into the type of a violation of

the individual‟s rights are those which concern personal integrity66 in which section 420 clearly states that they are (1) injury to life (2) injury to body and health and (3) injury to liberty67. The ambiguous interpretation still remains for wording „any right 63 Glossary of U.S. legal terms and definitions available at http://legaldefinition.us/personal-injury.html. 64 Louis R. Frumer, B.L. Benoit Mathew, Personal Injury Actions Defenses Damages Volume 3: Damages to False Arrest, (1957), (New York: Bender & Company Incorporated), p. 10. 65 West's Encyclopedia of American Law, The Gale Group, Inc., (2d ed. 2008), available at http://legal-dictionary.thefreedictionary.com/Personal+Injury. 66 The author views that personal right should mean the absolute rights born with a person i.e., life body, health, mentality state (excluding normal emotions) and liberty. 67 Anan Chantara-opakorn, supra note 14.

18

of another person‟, does injury to „any right of another person‟ regarded to be a kind of personal injury and to what extend? This will later be discussed in Chapter 4. 2.4.1.1 Injury to Life Injury to life is to injure the right to have life i.e., death is a result of the act68. Normally, the owner of the life is the person who can be injured by this kind of injury however, his family also have partial right in his life as well thus, his family can also claim compensation e.g., loss of legal support69. 2.4.1.2 Injury to Body and Health Injury to body means to injure any part of a body, physically70, including the nervous system71. Injury to health is injury to the well-being of a person for example, an injury to one‟s well-being caused by pollution72. The problem of the TCCC is that it does not allow the recovery of damages for pure non-pecuniary loss if it does not accompanied with injury to body, health or liberty. But whether pure non-pecuniary loss can be regarded as „injury to health/injury to body‟ or not will be further analyzed in Chapter 4. Moreover, the Liability for Damages Arising from Unsafe Products Act does not express the scope of injury to health though it does express the definition of „damage to mental state‟ which shall be recoverable. This will also be discussed in Chapter 4. 68 วาร นาสกล, ค าอธบายประมวลก าหมายแพงและพาณชยวาดวย ละเมด จดการงานนอกสง ลาภมควรได, หนา 61 (Wari Nasakul, The Explanation of the Thai Civil and Commercial Code: Tort, Manage without Mandate, Endue Enrichment, p. 61). 69 ศนนกรณ (จ าป) โสตถพนธ, ค าอธบายกฎหมายลกษณะ ละเมด จดการงานนอกสง ลาภมควรได, (กรงเทพฯ: ส านกพมพวญญชน), (พมพครงท 2, 2552), หนา 81 (Sanunkorn (Jumpee) Sodtiparn, Explanation of Torts Manage without Mandate Undue Enrichment, (Bangkok: Winyuchon Publisher), (2d ed. 2009), p. 81). 70 Id. 71 See Supreme Court decision no. 626/2493 (The defendant mixed poison leaf with fried egg for a child to eat. The child was unconscious and remained as if he was mad for 15 hours. The Court regarded this kind of injury as injury to body) cited in วงษ วระพงศ, ค าอธบายลกษณะละเมด หมนประมาท, เนตบณฑต, พมพครงท 1, หนา 47 (Wong Weeraphong, The Explanation of Torts Defamation, Thai Bar Association, p. 47). 72 Vicha Mahnsakul, supra note 58, at 119; See Supreme Court decision no 8309/2548 (The factory caused bad smell and made the area too noisy for the neighborhoods. The factory must compensate for its tortious act.) cited in Sanunkorn (Jumpee) Sodtiparn, supra note 64, at 82.

19

2.4.1.3 Injury to Liberty Injury to liberty is to injure the right to move freely as will73. However, there is still a discussion whether the act of threatening to do things which conflict with the person‟s will is regarded to be an injury to liberty74. 2.4.1.4 Injury to any Right of another Person Injury to any right of another person is the issue of this thesis which shall be later discussed in Chapter 4

2.4.2 Damages

2.4.2.1 Damages for Pecuniary Loss

As a type of compensation, damages for pecuniary loss means damages

granted by the Court to compensate injury where the actual loss can be measured in terms of money for example, loss of earning, expenses for medical care, funeral expenses and loss of legal support. Yet, even if it is regarded as damages for pecuniary loss, if the claimant cannot prove the exact amount of damages for the actual loss, the Court is empowered to determine the amount of damages as he deemed appropriate75. In determining the amount of damages for pecuniary loss, section 438 provides the discretionary power to the Court to determine the amount of damages according to the circumstances and the gravity of tort.

The word circumstance does not mean whether the defendant has acted

intentionally or negligently because those are the requirements of a tortious act however, the Court is empower to take such requirements into account in order to determine the amount of damages76 e.g., throwing a bomb into crowded area. This circumstance shows the intention of the defendant that he intends to cause mass damage without any respect to the laws therefore he should be subjected to

73 เสนย ปราโมช, ประมวลกฎหมายแพงและพาณชยวาดวยนตกรรมและหน ภาค๑-๒, (แกไขเพมเตม ๒๕๐๕), (กรงเทพมหานคร: นตบรรณาการ), หนา 631 (Sanee Pramod, Civil and Commercial Code concerning Legal Act and Obligations, (revised 1982), (Bangkok: Nitibunnakarn Publishing), p. 631) cited in Sanunkorn (Jumpee) Sodtiparn, supra note 64, at 82. 74 Sanunkorn (Jumpee) Sodtiparn, supra note 69, at 82; In the author‟s opinion, threatening should be regarded as an injury to liberty. According to TCCC § 420, the person who commits a tortious act (wrongful act) must, willfully or negligently, unlawfully injures the liberty of another person. In case of threatening, the one who commit the act is the victim of the threatening scene therefore, the victim himself may be regarded as a tortfeasor if threatening is not regarded as unlawfully. 75 See Supreme Court decision no. 3101/2524 (The claimant‟s trademark has actually been infringed by the defendant. Although the claimant cannot prove of the actual loss he has suffered, the Court is empower to grant damages as the Court deem appropriated). 76 สษม ศภนตย, ค าอธบายประมวลแพงและพาณชยวาดวยละเมด, (กรงเทพฯ: ส านกพมพนตบรรณาการ), (พมพครงท 6, 2550), หนา 207 (Suksom Suppanit, Explanation of Civil and Commercial Code : Tort, (Bangkok: Nitibunnakarn Publisher), (6th ed. 2007), p. 207).

20

compensation more than the person who negligently throws the bomb in the deserted river but unfortunately it hits the head of the swimmer. Overall, damages for pecuniary loss is damages that can be converted into terms of money.

The gravity of tort means seriousness of the result of such tort therefore in first

stage, the amount of damages in case of injury to life should be more than the amount of damages in case of injury to body nevertheless, there still be situations where the amount of damages in case of injury to body are granted more than the amount of damages in case of injury to life77 e.g., the injured person was seriously injured which was lasting hence, he may need a big sum of money to pay for his treatment until he will be fully recovered. Notice that the Court will use this discretionary power only when the claimant cannot prove the amount of damages for the actual loss78.

Damages for pecuniary loss to be granted according to the TCCC are;

2.4.2.1.1 Damages for Pecuniary Loss in Case of Injury to Life

Sections 44379 and 44580 of the Thai Civil and Commercial Code provide specific types of compensation that are recoverable in case of injury to life i.e., damages for funeral expense and other necessary expenses relating to the funeral, expenses for medical care, damages for loss of earning, damages for loss of legal support (regardless whether the deceased was actually supporting the claimant during such time or not, the requirement that the claimant has to prove is that the deceased has the duty by law to support the claimant81) and loss of service82. The conditions of each damages vary from one to another for example, damages for loss of service is recoverable under the right of third person whom the deceased has the obligation to perform service to. Other damages above mentioned, except for loss of service, are recoverable under the right of the heirs of the deceased.

77 See Supreme Court decision nos 75/2538 (The Court granted damages amounts to 1,080,565 Baht for the injured person who became disabled for the rest of his life concerning his ability to excrete.) But see Supreme Court decision no 2650/2538 (The Court granted damages amounts to 206,425 Baht. The deceased died according to the road accident.). 78 See Supreme Court decision no. 3101/2524, supra note 70. 79 TCCC § 443 (In case of causing death, compensation shall include funeral and other necessary expenses. If death did not ensue immediately, compensation shall include in particular expenses for medical treatment and damages for the loss of earning on account of disability to work.). 80 TCCC § 445 (In case of causing death, or of causing injury to the body or health of another, or in case of 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.). 81 See Supreme Court decision no. 215/2513 and decision no. 446-449/2516 (Even if the deceased was studying in the college and was not yet providing support to his parents but the deceased has the duty by law to provide support to his parents therefore his parents (the claimants) have the right to claim damages for loss of legal support.). 82 This concept is similar to German law. The third party has the right to claim damages for loss of service if the deceased has the duty by law to provide the service to such third party.

21

In awarding damages under these head of injuries, the principle is similar to other civil law countries, such as Germany83; funeral expenses contain of all expenses necessary paid in order to hold a funeral according to the religion or culture of the deceased84 including all necessary related expenses e.g., transportation expenses for relatives to arrange the funeral. Under Thai laws, the person who is entitled to claim funeral expenses is the person who has the duty to arrange the funeral. The funeral expenses shall not be deducted from subvention85. If the claimant cannot measure the exact amount of expenses, the Court has the power to determine the amount of funeral expenses and to order an advance payment even if the funeral has not yet been held86. In conclusion the TCCC provides funeral expenses and other necessary expenses concerning the funeral, medical treatment expenses before the death of the deceased, damages for loss of income before the death of the deceased, damages for loss of legal support to whom the deceased owes duty of care to, damages for loss of service for third party whom the deceased owes service to.

2.4.2.1.2 Damages for Pecuniary Loss in Case of Injury to Body and Health

Section 44487-445 provide damages for losses arising from tortious act88 i.e., damages for loss of income, damages for loss of labor, damages for loss of ability to work, in present and in the future, whether temporary or permanent.

83 BGB § 844 (In the case of causing death the person bound to make compensation shall make good the funeral expenses to the person on whom the obligation of bearing such expense lies. If the decreased at the time of the injury stood in a relation to a third party by virtue of which he was or might be bound by law to furnish maintenance to such third party is deprived of the right to claim maintenance, the person bound to make compensation shall compensate the third party by the payment of a money annuity, in so far as the decreased would have been bound to furnish maintenance during the presumable duration of his life. The provision of 843, pars, 2 to 4, apply mutatis mutandis.); The obligation to make compensation arises even if at the time of the injury the third party was only “en ventre sa mere”[in the mother‟s womb]; BGB § 845 (In the cause of causing death, or of causing injury to body or health, or in the case of deprivation of liberty, if the injured party was bound by law to perform services in favor of a third party in his household or industry, the person bound to make compensation must compensate the third party for the loss of the services by the payment of a money annuity. The provision of 843 pars, 2 to 4 apply mutatis mutandis.). 84 เพง เพงนต, ค าอธบายประมวลกฎหมายแพงและพาณชยวาดวยละเมด ความรบผดทางละเมดของเจาหนาทและกฎหมายอนทเกยวของ, (กรงเทพฯ: จรารตรการพมพ), (พมพครงท5, 2550), หนา 429 (Peang Peangniti, The Civil and Commercial Code Explanation in Tort, Officer’s Tortious Liability and Other Related Laws), (Bangkok: Jirarat Limited Partnership Publisher), (5th ed. 2007), p. 429). 85 See Supreme Court decision no. 2437/2522 (Even if the employer of the deceased took care of all funeral expenses, the defendant cannot deny his liability to pay funeral expenses. Thus, the subvention from the employer shall not be deducted from funeral expenses.). 86 Vicha Mahnsakul, supra note 58, at 104-105. 87 TCCC § 444 (In case of an injury to the body or health, the injured person is entitled to received reimbursement of his expenses an damages for total or partial disability to work, for the present as well as for 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.). 88 See Supreme Court decision no. 1721/2513 (The plaintiff got seriously injured that she could not take care of her children therefore she had to hire a nanny to take care of her children. This expense arose directly from the defendant‟s tortious act thus the plaintiff is entitled to claim damages for such expense.).

22

2.4.2.1.3 Damages for Pecuniary Loss in Case of Injury to Liberty Compensation for injury to liberty is specifically provided under section 445 which are damages for loss of labor and damages for loss of income89. Damages for pecuniary loss recoverable under the Liability for Damages Arising from Unsafe Products Act, if not provided otherwise, will be determined in the same regime as the general principle provided in the TCCC. The new regime found in the Liability for Damages Arising from Unsafe Products Act is that punitive damages are recoverable under the Liability for Damages Arising from Unsafe Products Act, without having to rely on the discretion of the Court, if one of the elements in section11(2)90 is met.

All damages for pecuniary loss will be plus by interest calculating since the time of tortious act as per section 20691. This may seems unfair since the injured person is not yet paid for the loss, and so does the interest. However, interest was paid according to the default of the other party which caused damage to the injured person. In case of tort, default/loss occurred since the time tortious act was committed. Therefore the interest shall be calculated from that day since. This is because since the time tortious act was committed, the injured person had lost his ability, temporarily or permanently, to invest his ability in something that could gain revenue.92 And it is so true that litigation consumes a great period of time. This is complying with the economic rationale relating to interest93. The economic rationale relating to interest has defined the interest as a form of a rent that the borrower pay to the lender to compensate for the loss of use of the capital by the

89 ประจกษ พทธสมบต, ประมวลกฎหมายแพงและพาณชย ลกษณะละเมด จดการงานนอกสง และลาภมควรได, (กรงเทพฯ: ส านกพมพมสมบต), 2548, p. 258 (Prajuck Puttisombaed, Civil and Commercial Code Tort, Management without Mandate and Endue Enrichment), (Bangkok: Meesombaed Publisher), 2005, p. 258).

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

91 TCCC § 206 (In case of the obligations arising from an unlawful act, the debtor is in default from the time since he committed it.). 92 รายงานฉบบสมบรณ การวเคราะหกฎหมายดวยวธทางเศรษฐศาสตร: การคดคาเสยหายในคดละเมด, โครงการวจยเรองการวเคราะหกฎหมายดวยวธทางเศรษฐศาสตร, สถาบนวจยรพพฒนศกด, ส านกงานศาลยตธรรม, สถาบนวจยเพอการพฒนาประเทศไทย, ตลาคม, 2553, หนา 5-46 (The Complete Report of Law and Economics: Calculating Tortious Damages, Rapee Pattanasak Institute, October, 2010, p. 5-46) [hereinafter The Complete Report]; See The Complete Report at 5-46 to 5-51. 93 Stephen G. Kellison, Irwin McGraw-Hill, The Theory of Interest, (2d ed. 1991), p. 42 (“Fundamental principle of theory of interest is that the value of an amount of money at the given point in time depends upon the time elapsed since the money was paid in the past or upon the time which will elapsed in the future before it is paid”).

23

lender while it is loaned to the borrower94. On the supply side, the primary issue is time preference, a Baht today can be utilized to meet immediate need while a Baht tomorrow can only be used to meet deferred need in an uncertain future. Interest is then the price that is sufficient to cause individuals and forms to overcome their time preference thus the lender will be willing to lend them95. On the demand side, the primary issue is the productivity of capital, that the return of capital is greater than the cost of borrowing96. 2.4.2.2 Damages for Non-Pecuniary Loss . As a type of compensation, damages for non-pecuniary loss are damages that granted by the Court to compensate the loss which cannot be measured in terms of money which is opposite to damages for pecuniary loss. The characteristic of non-pecuniary loss thus, includes economic losses that cannot be measured exactly in terms of money for instance, those which never be objects of commercial exchange97. However, the law must seek for a way to compensate non-pecuniary loss. Let‟s say, if the nature of the injury is unable to restore, the only choice is to, at least, bring back the injured person to the nearest position the injured person had enjoyed before tort was committed. When there‟s no better way of assessment, money should be the tool to compensate non-pecuniary loss98. For example in a situation where an accident resulted loss of a leg, the injured person would certainly want to have his leg back than to receive a sum of money however, if it can‟t be done, at least money can buy him a new artificial leg or get someone to take care of him. Occasionally, the statutory definition of damage expressly includes non-pecuniary loss as a head of damage that constitute the right to compensation99

In overall picture, the author would like to draw a compensation chart to

clarify the link between the state of damage and the state of compensation as follow;

94 Id. at 295. 95 Id. 96 Id. at 296. 97 Hans Stoll, supra note 56, at 37. 98 Vicha Mahakoon, supra note 22, at 100. 99 Hans Stoll, supra note 56, at 11-12.

24

Compensation Chart 100

In addition, focusing in this thesis, damages for non-pecuniary loss are

recoverable both under the TCCC and the Liability for Damages Arising from Unsafe Products Act as the studies studied below;

2.4.2.2.1 A Study of Section 446 of the Thai Civil and Commercial Code (TCCC) 2.4.2.2.1.1 General System

Section 446 of the TCCC reads;

„In case of injury to the body or health of another, or in the case of deprivation of liberty, the injured person may also claim compensation for the damage which is not a pecuniary loss. The claim is not transferable, and does not pass to the heirs, unless it has been acknowledges by contract, or an action on it has been commenced. A like claim belongs to a woman against whom an immoral crime is committed‟

100 See Compensation Chart cited in Sanunkorn (Jumpee) Sodtiparn, supra note 69, at 301; Praworrapakpiboon, supra note 61, at 55.

25

Damages for non-pecuniary loss are explicitly provided under section 446 of the TCCC, to be granted when such non-pecuniary loss accompanied with injury to body, health or liberty. Note that in case the Court grants damages for loss of ability to work, it will not be regarded as double recovery from recovery of damages for other non-pecuniary losses101. As the author has studied the Courts‟ decisions concerning awarding damages for non-pecuniary loss, the author would like to sort those decisions into two categories: those that are recoverable and the other that are not.

(i) Damages for Non-Pecuniary Loss that are Recoverable. The heading of damages for non-pecuniary loss under the TCCC are not specifically mentioned. Also, the TCCC does not provide the definition of non-pecuniary loss. However, from the Supreme Court decisions, various headings of damages for non-pecuniary loss are granted under section 446 of the TCCC:

(a) Supreme Court decision no.2580/2544 granted damages for loss of beauty and loss of good personality: The plaintiff, a teacher, passed eyelids surgery which resulted defects that caused her to look ugly. She had to find a new surgeon to correct the defects. She was granted 200,000 Baht as damages for her non-pecuniary loss.

Supreme Court decision no. 128/2522 granted damages for loss of beauty: The plaintiff was hit by the defendant. The plaintiff‟s scar resulted from the accident. The plaintiff suffered non-pecuniary loss, damages for this kind of loss is recoverable. (b) Supreme Court decision no. 75/2538 granted damages for loss of sexual competency: The plaintiff encountered an accident that was caused by municipal‟s negligence in maintenance their trees. From the accident, he lost his sexual competency and became handicapped. He is entitled to recover damages for his pain, suffering from being handicapped and also for his loss of sexual competency.

(c) Supreme Court decision no. 1447/2523 granted damages for loss of ability to work: The plaintiff had to cut off his hand as the result of a tortious act. His right is to claim damages for his loss of income as damages for pecuniary loss and also for loss of ability to work as damages for non-pecuniary loss.

Supreme Court decision no. 1921/2520 granted damages for suffering and loss of ability to work: The employee of the defendant recklessly drove the bus and caused an accident. The result of such accident was the plaintiff‟s brain injury. He got a brain surgery and has been handicapped for the rest of his life. The plaintiff suffered both physical and mental losses, and is no longer able to work as usual. The defendant is responsible for all damages concerning these losses.

Supreme Court decision no. 1794/2517 granted damages for loss of ability to work: Being handicapped, the plaintiff has the right to claim damages for loss of

101 See Supreme Court decision no. 1447/2523 (The claimant has to use artificial arm because of the accident. Damages that recoverable are both damages for loss of ability to work and damages for other non-pecuniary loss since the claimant has to cut off his arm.).

26

income as per section 444 of the TCCC and also damages for non-pecuniary loss for loss of ability to work as per section 446 of the TCCC.

Supreme Court decision no. 781/2509 granted damages for loss of ability to work: The plaintiff was hit by the defendant. The doctor was not certain if the injured person can be completely cured, this case shall be deemed that the plaintiff has lost the ability to work as usual and he was entitled to claim compensation from the defendant according to section 444 and 446 of the TCCC. (d) Supreme Court decision no. 1963/2517 granted damages for loss of good health: This case gave the right to claim damages for health deterioration as damages for non-pecuniary loss.

(e) Supreme Court decision no. 1447/2523 granted damages for loss of organ: According to the accident, the claimant had to cut off his right hand and replaced it with the artificial one. The defendant must compensate such non-pecuniary loss. Supreme Court decision no. 2960/2524 granted damages for loss of organ: The kidney is one of the important organs of a body, the Court granted damages in the amount of Baht 100,000 for loss of a kidney which is appropriate. This case also shows the Court‟s discretionary power to determine the amount of damages for non-pecuniary loss.

(f) Supreme Court decision no. 2488/2523 granted damages for shock, pain and suffering: The dog was escaping while the defendant opened the gate. The dog went out and bit the plaintiff. The Court held that the defendant did not use enough care in keeping the dog. The defendant must compensate the plaintiff including paying damages for the shock, pain and suffering. (g) Supreme Court decision no. 2573/2518 granted damages for non-pecuniary loss in case of immoral crime against woman, in this case, loss of virginity: The plaintiff was raped while she was a virgin. According to the tradition during that time, men want to marry only virgin women. The Court awarded Baht 10,000 damages for loss of virginity as claimed by the plaintiff.

(ii) Damages for Non-Pecuniary Loss that are not Recoverable

(a) Damages for Pure Non-pecuniary Loss Section 446 paragraph 1 of the TCCC provides:

„In case of injury to the body or health of another, or in the case of deprivation of liberty, the injured person may also claim compensation for the damage which is not a pecuniary loss‟ The wording in section 446 clearly states that damages for non-pecuniary loss are recoverable only in case where it is accompanied by injury to body, health or liberty hence, pure non-pecuniary loss is not recoverable e.g., the Supreme Court decision no. 2816/2528102 held that the sadness resulted from the wrong statement in

102 Anan Chantara-opakorn , supra note 14.

27

the telegraph does not raise the right to claim damages. And Supreme Court decision no. 655/2499 held that damages for sadness from not receiving the booked ticket is not recoverable103. However, the Court has ever granted damages for non-pecuniary loss, not accompanied with physical injury, if the Court views that such non-pecuniary loss is tantamount to (i) damage to body104 or (ii) damage to health.105

(b) Damages in Case of Injury to Life (b)(i) Damages for Bereavement Even though damages for non-pecuniary loss are granted by the Court in case where non-pecuniary loss is accompanied by injury to body, health and liberty. But the Court, strictly interpreting section 443106 and 446 of the TCCC i.e., does not grant damages for non-pecuniary loss in case of injury to life. Seeing from the following Supreme Court decisions; Supreme Court decision no. 1742/2499: damages for non-pecuniary loss are not recoverable in case of death. Supreme Court decision no.7611/2542: Where the injured person has died, damages that recoverable are only those provided in section 443 and 445. Supreme Court decision no.1550/2518: In case of injury to life, the compensation granted is base on damages provided under section 443 of the TCCC; there is no statutory law allows the recovery of damages for the suffering that resulted from loss of a child. Supreme Court decision no. 477/2514: In tort, grief and disappointment are not recognized as a state of damage that are recoverable under the Thai Civil and Commercial Code.

Supreme Court decision no. 292/2502: The compensation for tortious act does not include the compensation for the loss of a child.

103 Vicha Mahakoon, supra note 22, at 124. 104 See Supreme Court decision no. 626/2493, supra note 71. 105 See Supreme Court decision no. 392-393/2461 (Nuisance is a kind of injury to health as it made the plaintiff much less comfortable than normal.) . 106 TCCC § 443 (In case of causing death, compensation shall include funeral and other necessary expenses. If death did not ensue immediately, compensation shall include in particular expenses for medical treatment and damages for the loss of earning on account of disability to work); นพฒนกศล อศวชน, ปญหาการก าหนดคาเสยหายทางจตใจ, เอกสารวชาการสวนบคคล, หลกสตรผบรหารกระบวนการยตธรรมระดบสง รนท 13, (หองสมดศาลยตธรรม), (2552) หนา 141 (Niphatkusal Assavachin, Problems Concerning Determination of Aggravated Damages, Personal Academic Document, Program of Senior Executives on Justice Administration Batch 13, (on file with Office of Judiciary library), (2009), p.141) (In fact TCCC § 443 has been imported, the original word of the manuscript use the word „shall include‟ but in the TCCC use the word „which is‟ thus, it resulted the present strict interpretation. Actually, with the word „include‟ damages for non-pecuniary loss in case of injury to life/death should be recoverable as there is no legal restriction.).

28

Supreme Court decision no. 789/2502: A husband is not entitled to claim damages for non-pecuniary loss, in this case is the loss of his wife, that caused him loneliness, no statutory law allows the right to claim for such damages.

(b)(ii) Inheritability and Damages for Loss of Life (Value of Life) The claim for damages for non-pecuniary loss does not pass to the heirs nor does it transfer. The exceptions are only those provided under section 446 paragraph 2 of the TCCC provides;

„The claim is not transferable, and does not pass to the heirs, unless it has been acknowledged by the contract, or an action on it has been commenced‟

This suggests that damages for non-pecuniary loss are the right that dies with the injured person. It will not be regarded as an estate if it has not been acknowledge by contract or a legal action has not been commenced. Noted also that in case of injury to life, there is no damages awarded for the loss of the victim‟s life as well. In other word, the law does not expressly recognize value of a life.

2.4.2.2.1.2 Method of Calculation Because non-pecuniary loss cannot be measured, the claimant will not be able to prove the amount of the actual loss in terms of money. In present, Thai Court still has no method of calculation to calculate damages for non-pecuniary loss. Nor does it has the tool to facilitate the assessment of the amount of damages for non-pecuniary loss107. Therefore the Court has been solely approaching the amount of damages for non-pecuniary loss according to his discretionary power under section 438 of the TCCC108, by taking into account circumstances and gravity of damage109, the same practice using to determine damages for pecuniary loss where the claimant cannot prove of the exact amount of damages of the actual loss. In addition, the Court tends to take into account financial and social status of both parties when assessing damages for non-pecuniary loss110.

107 The Complete Report, supra note 92, at 5-1. 108 See Supreme Court decision no. 886/2476. 109 See Supreme Court decision no. 575/2544 (Thai law grants discretionary power to the Court to determine the amount of damages for non-pecuniary loss according to circumstances and gravity of tortious act because non-pecuniary loss is surely, by its nature, cannot be measured in exact terms of money. After considering the wound, the way of curing, the suffering, being handicapped for the rest of the life and the loss of good personality, the Court deemed that these were non-pecuniary losses.). 110 Paijit Boonyapan, supra note 23.

29

2.4.2.2.2 A Study of the Liability for Damages Arising from Unsafe Products Act B.E. 2551

2.4.2.2.2.1 General System

Section 4: „Damage means damage arising from an unsafe product, regardless of whether the damage is to life, body, health, hygiene, mental state, or assets. This shall not include damage to the unsafe product.‟ „Damage to mental state means pain, suffering, fear, anxiety, sorrow, shame or other similar mental damage.‟ Section 11: „The Court shall be authorized to demand compensation for damages based on the following, in addition to compensation for violations of the Civil and Commercial Code: (1) Compensation for damage to mental health, as well as body, health, and hygiene of the damaged party. In the event the damaged party has died, the damage party‟s husband, wife, children, or descendants shall have rights to compensation for the damage occurring to mental health.‟ Unlike the TCCC, damage to mental state has explicitly recognized under section 4 of the Liability for Damages Arising from Unsafe Products Act as a head of damage along with its definition thus damages for damage to mental state is recoverable under section 4 of the Act. But whether such damage to mental state must be accompanied by damage to body, health or hygiene of the injured person as per the original wording of section11 (1) or not will be later discussed in Chapter 4. (i) Damages for Non-Pecuniary Loss that are Recoverable Damages according to section 446 of the TCCC and damages in addition to damages that are recoverable under the TCCC, literally, damages for damage to mental state and damages for non-pecuniary loss in case of injury to life are recoverable under the Liability for Damages Arising from Unsafe Products Act 111. (a) Damages for Non-Pecuniary Loss that are Recoverable under the Thai Civil and Commercial Code

Damages for non-pecuniary loss as per the TCCC is also recoverable since section 14 of the Liability for Damages Arising from Unsafe Products Act B.E. 2551 does not eliminate the right to claim damages under the TCCC.

111 See Liability for Damages Arising from Unsafe Products Act § 11(1).

30

(b) Damages for Non-Pecuniary Loss that are Recoverable in Addition to the Principle of the Thai Civil and Commercial Code (b)(i) Damages for Damage to Mental State

The Liability for Damages Arising from Unsafe Products Act explicitly states that damage to mental state is recoverable as per section 11(1). But whether it can be recovered independently and whether it includes emotions or not will be discussed in Chapter 4. (b)(ii) Damages in Case of Injury to Life (b)(ii)(1) Damages for Bereavement

According to Section 11(1) „Compensation for damage to mental health, as well as body, health, and hygiene of the damaged party. In the event the damaged party has died, the damage party‟s husband, wife, children, or descendants shall have rights to compensation for the damage occurring to mental health.‟ The Liability for Damages Arising from Unsafe Products Act grants damages for non-pecuniary loss in case of injury to life. But whether it is the inheritability of the deceased‟s right to claim damages for the deceased‟s non-pecuniary loss (inheritability) or it is merely the right of the persons listed in section11(1) to claim damages for their bereavement? (damages for bereavement) and the value of the deceased‟s life? (damages for loss of life/value of life). This will also be discussed in Chapter 4. (b)(ii)(2) Inheritability and Damages for Loss of Life (Value of Life)

The same explanation as of (b)(ii)(1). 2.4.2.2.2.2 Method of Calculation As well as in the TCCC, the Liability for Damages Arising from Unsafe Products Act does not provide any method to calculate damages for non-pecuniary loss therefore it leaves to the Judge‟s discretion as per the general principle of the TCCC i.e., section 438. However it explicitly grants power to the Court to award punitive damages if one of the requirements in section 11(2) of the Liability for Damages Arising from Unsafe Products Act is met, with criteria which the Court can take into account on granting punitive damages significantly, the financial status of the entrepreneur, provides: Section 11(2) of the Liability for Damages Arising from Unsafe Products Act „In the event the facts indicate that the entrepreneurs produced, imported, or sold the

31

products, although aware that the products were unsafe, or that the entrepreneur was unaware, but committed gross negligence, or had awareness that the product was unsafe after production, yet imported or sold the unsafe product without taking appropriate action to prevent damages from occurring, the Court shall be authorized to order the entrepreneur to pay punitive damages in addition to the amount of actual compensation stipulated by the Court, which shall be based on the discretion of the Court, but not to exceed twice the actual compensation. Consideration will be given to the following circumstances including the severity of the damage sustained by the damaged party, the entrepreneur‟s cognizance of the damages arising from the product, the time period in which the entrepreneur concealed the danger of the product, the actions by the entrepreneur after becoming aware that the product was unsafe, the benefits received by the entrepreneur, the financial status of the entrepreneur, efforts to alleviate the damages that occurred on the part of the entrepreneur, and the part the damaged party had in the damages that occurred‟ In conclusion, the different features between the Liability for Damages Arising from Unsafe Products Act and the TCCC regarding damages for non-pecuniary loss are: firstly, damage to mental state is recognized and defined clearly under the Liability for Damages Arising from Unsafe Products Act; secondly, damages for non-pecuniary loss can be claimed in case of injury to life; thirdly, punitive damages and the Court‟s ability in taking into account financial status of the entrepreneurs are explicitly expressed in this Liability for Damages Arising from Unsafe Products Act.

32

CHAPTER 3

COMPARATIVE STUDIES ON PERSONAL INJURY AND DAMAGES FOR NON-PECUNIARY LOSS

There are three basic models of tort laws in the legal system. The first may be called as „Unrestricted Plurality‟. This regime provides particular provisions for particular circumstances in which are extremely diversified. This is generally found in common law countries e.g., England. The source of this type of regime came from the previous writ system 112 i.e., where there is no writ, there is no right. Particular writ was made in order to guarantee particular right. The second is the „Restricted Pluralism‟ which states a general principle of tort along with specific provisions applying to specific circumstances. This kind of legal system is typically found in the civil law countries e.g., Thailand, German113 and Italy. The third is the „Single Rule‟ which states only a general principle e.g., French legal system114 applying to almost all of circumstances. 3.1 Unrestricted Plurality 3.1.1 Personal Injury and Damages for Non-Pecuniary Loss in the United Kingdom 3.1.1.1 General System Lord Steyn gave four reasons to treat psychiatric injury as special liability (1) identifying the categories of psychiatric harm is highly complex. It needs medical expert to identify the harm caused (2) floodgates (3) litigation is sometimes an unconscious disincentive to rehabilitation and (4) it may be disproportionate to tortious conduct if the tortfeasor has to face the whole world for psychiatric harm of all persons standing thereby to the accident115. It is also not outrageous to say that no jurisdiction could afford to treat emotional injuries on the same basis as physical injuries. They must be limited; the firmer rule should be indicated for example „no damages for psychiatric harm is recoverable for loss of pets‟116. As of the nature of psychiatric harm, it brings about this study.

112 Anan Chantara-opakorn, supra note 14. 113 Jean Limpens, Robert M. Kruithof, Anne Meinertzhagen-limpens, supra note 43, at 8-10. 114 Id. 115 Simon Deakin, Angus Johnson and Basil Markesinis, Markesinis and Deakin’s Tort Law, (6th ed. 2008), Clarendon Press Oxford, p. 144. 116 Id. at 307.

33

The United Kingdom, in this thesis, England, is one of the countries that grants damages for non-pecuniary loss. It took a great deal of time before damages for non-pecuniary loss was granted and, it was granted by the evolution from the words of Lord Wensleydale117. However, soon after the law recognized this kind of damages, it continually moves forward by expanding the scope of protection e.g., to cover the right to claim damages of secondary victims. Yet, recently, some scholars are attempting to abolish damages for non-pecuniary loss118 or, at least, changing the approach in granting this kind of damages119. Still, they do not accomplish their goal. The present regime in granting damages for non-pecuniary loss in England is as follow: 3.1.1.1.1 Damages for Non-Pecuniary Loss that are Recoverable (i) Damages for Damage to Mental State (a) Pain and Suffering No clear distinction is made between the terms pain and suffering but it has been suggested that pain is the consequence of physical injury since every physical injury is certainly accompanied with pain. Suffering is a state of damage to mental state or distress resulted from physical injury. And as there still has a blur distinctive between them, the Court usually does not award these head of damages separately120 as affirmed in Lim Poh Choo v. Camden and Islington121. Another question may be raised concerning pain and suffering, „Should the award be granted in case the injured person has no awareness of his pain and suffering?‟ According to the present laws, damages for pain and suffering is granted in subjective means which is to be granted only in case where the plaintiff is aware of his pain and suffering122. However, in case where time between tort and death is short, damages for non-pecuniary loss are not recoverable. Because the claimant fails to prove that the deceased had been aware of his pain and suffering before he went

117 See Lynch V. Knight 9 H.L Cas 577, 578 (1861) (He described mental pain or anxiety as “something which the law cannot value and does not pretend to redress”) (Lord Wensleydale); See http://www.telecoms.net/law/ptsd1.htm. 118 Damages for Personal Injury: Non-Pecuniary Loss (Law Com. No.257, 1999), esp. ¶ 2.1. 119 See Liability for Psychiatric Illness (Law Com. No. 249, 1998). 120 Basil Markesinis, Michael Coester, Guido Alpa and Augustus Ullstein, supra note 51, at 46. 121 See Lim Poh Choo v Camden and Islington Area Health Authority (House of Lords) [1979] 2 All ER 910 (The Court granted 20,000 pounds for pain& suffering and loss of amenities in a lump sum) cited in B.A.Hepple, M.H. Mathews, Tort: Cases and Materials, ( London: Butterworths), (4th ed. 1991), p. 411. 122 See H West &Sons v Shephard [1964] AC 326 (The injured person suffered severe head injury, her eye movement is an evidence to show that she acknowledges her predicament. However, it is impossible to know how much she was suffering thus, she was granted damages for her loss of amenities.) cited in Vivienne Harpwood, Modern Tort Law, (London: Cavendish Publishing Limited), (7th ed. 2005), p. 448.

34

unconsciousness or before he died; English law regards this kind of pain and suffering as a part of death itself123. (b) Loss of Amenities Both the usual and unusual amenities lost can be a head of damage that empowers the claimant to claim damages for instance, loss of marriage prospects, loss of sexual competency, loss of pleasure in work and loss of ability to do what he was capable of and etc. Unlike pain and suffering, loss of amenities will be awarded in objective basis as affirmed in Wise v Kaye and Lim Poh Choo v. Camden and Islington124. That the compensation for loss of amenities will be compensated, is based on the fact of deprivation and regardless of whether the victim is aware of such loss or not. English law rejects strongly functional approach and regardless of the purpose which such damages will be used for125. Note that the heading loss of consortium has been abolished by the Administration of Justice Act 1982, however, the husband is still be able to claim damages for loss of amenity: the relationship he once enjoyed with his wife126.

(c) Nervous Shock and Other Recognized Psychiatric Illnesses Previously, English law granted damages for non-pecuniary loss i.e., pain and suffering where they are accompanied with physical injury or the notions of „impact rule‟. Later the scope of granting damages for non-pecuniary loss extends to that of non-pecuniary loss, with no need to be accompanied with physical injury, which is recognized by medical profession known as „nervous shock‟. It is recoverable even in case of negligence provided that such shock would certainly occur to reasonable person who is in the same circumstances127. Nervous shock is a term used in English law to denote nervous shock or injury inflicted upon a person by intentional or

123 See Hicks v Chief Constable of South Yorkshire Police [1992] 1 All ER 690, CA; affd [1992] 2 All ER 65, HL (The House of Lords regard it as a part of death itself, the claimant can claim for damages for bereavement but not pain and suffering.) cited in Vivienne Harpwood, Modern Tort Law, (London: Cavendish Publishing Limited), (7th ed. 2005), p. 452. 124 See Wise v Kaye (The Court held that there is a clear distinction between pain and loss of amenities. Pain will be awarded in case where the claimant is aware of his pain while loss of amenities will be granted by the fact of deprivation.) cited in B.A.Hepple, M.H. Mathews, Tort: Cases and Materials, (London: Butterworths), (4th ed. 1991), p. 413; See Lim Poh Choo v. Camden and Islington [1980] AC 174 at 189 (Damages for pain and suffering depend upon the claimant‟s personal awareness of pain, and her capacity for suffering. But damages for loss of amenities are awarded for the fact of deprivation whether the claimant is aware of it or not.); The Law Commission recommended that no change should be made to this position. (Damages for Personal Injury: Non-Pecuniary Loss (Law Com. No.257, 1999), esp. ¶ 2.19 and 2.24) cited in Basil Markesinis, Michael Coester, Guido Alpa and Augustus Ullstein, supra note 51, at 48. 125 Reforming Damages for Non-Pecuniary Loss in English Law: Lots of Action but Little Change, Reading Material, Faculty of Law, Thammasat University, p. 8 (on file with author). 126 See Hodgson v Trapp [1988] 3 WLR 1281, available at http://www.britishcaselaw.co.uk/hodgson-v-trapp-1988-ukhl-9-10-november-1988. 127 B.S. Markesinis & S.F., Deakin, supra note 52, at 128.

35

negligent actions or omissions of another128. The first case that damages for nervous shock had been granted was Dulieu v White&Sons129. Although it has set some limit within its case reads „The shock130 must arise from reasonable fear of immediate personal injury to oneself131‟. Soon after, English Court extends the scope of recovering damages for non-pecuniary loss to the case where the claimant suffers fear that damage might happened to others, if such damage can be reasonably foreseen132 and if the other person has (1) some direct and close relationship with the claimant and (2) there is a proximity between the incident and the injury whether in time or in place. This latter condition was later recommended to be abolished133. Besides nervous shock, other recognized psychiatric illnesses constitute the right to claim compensation as well. Although with present advance scientific knowledge, it is still hard to draw the exact distinction between physical trauma and psychiatric illness but it is now generally understood by Lord Bridge who stated „an acute emotional trauma, like a physical trauma, can well cause a psychiatric illness in a wide range of circumstances and in a wide range of individuals in whom it would be wrong to regard as having any abnormal psychological make-up‟134. However, both physical trauma and psychiatric illness are both recoverable (See also infra 3.1.1.1.2). (ii) Damages for Secondary Victims for their Recognized Psychiatric Illness After nervous shock established itself as a state of damage, the scope of protection became wider. Secondary victim is entitled to claim for their nervous shock even they have no real connection with the accident. The head of damage also includes depression135 and personality change136. Nevertheless, the Court tends to

128 Ahmad, Prof. (Dr.) Tabrez, Jamil, Haris and Dasgupta, Papiya, Nervous Shock, Development & Dilemma: A Comparative Study of UK, USA and Canada (October 4, 2009), at 3, available at SSRN: http://ssrn.com/abstract=1482619. 129 See Dulieu v White&Sons [1901] 2 KB 669 (The Court recognized and compensated the claim of a wife who suffered a severe fright when a horse-drawn van was about to crash through the window and caused her to deliver a child who was born prematurely soon after the accident.) cited in Vivienne Harpwood, supra note 15, at 40. 130 Ahmad, Prof. (Dr.) Tabrez, Jamil, Haris and Dasgupta, Papiya, supra note 128, at 2 (In medical sciences, nervous shock is caused by circulatory failure marked by a sudden fall of blood pressure and resulting in pallor, sweating, fast (but weak) pulse, and sometimes completes collapse. In shock, the blood pressure falls below that necessary to supply the tissues of the body, especially the brain.). 131 Law Commission No.249, supra note 119, ¶ 5.33 (This shock requirement has been recommended to be abandoned) (Draft bill, clause 1(2), 2(2) and 5(2)). 132 See Hambrook v Strokes Bros A.D. 1925 (The mother terrified for her children‟s safety as a lorry went out of control and came toward them. She suffered nervous shock which caused her illness and later died.) cited in Geoffrey Samuel& Jac Rinkes, Law of Obligations and Legal Remedies, (London: Cavendish Publishing), 1996, p. 153; Law Commission No.249, supra note 119, ¶ 2.5. 133 Law Commission No.249, supra note 119, ¶ 6.16 (Draft bill, clause 1(2), 1(3), 2(2) and 2(3)). 134 See McLoughlin v O’Brain [1983] AC 410, 433 (The claimant, the mother, was not in the scene of the accident but came upon the accident in its immediate aftermath, even it was an hour later from the time of accident but the scenes still had not been cleaned up after the accident. She suffered a serious psychiatric illness as she saw her husband severely shocked and suffered bruising, her two children severely injured and one was death.) cited in Vivienne Harpwood, supra note 15, at 39. 135 See Chadwick v British Rlys Board [1967] 1 WLR 912, supra note 2.

36

extend the scope of this limitation137 in which brought us to Alcock case that set the distinction between primary and secondary victim in order to limit the scope of protection138. A primary victim is a person who is a participant in an accident, described by Lord Oliver as someone who involved in an accident either immediately or not immediately who suffers from what he sees or hears. Such a person is usually well within the range of ability to foresee. A secondary victim is someone who is not a direct participant but merely witnesses an accident or arrives in the aftermath of an accident, a passive and unwillingness witness of injury caused to others. In his Lordship‟s view, such a person is almost always outside the range of foreseeable physical injury‟ We might also describe primary victim as a victim who suffers psychiatric injury after having directly been involved in the accident or got himself physically injured or put in fear of injury and secondary victim as a victim who suffers psychiatric injury as a consequence of witnessing or being informed of an accident which involves another139. Previously, secondary victim requires 4 conditions140 (1) the claimant must be abnormally susceptible to psychiatic illness (2) such loss must occur through shock (3) the claimant must have been in physical proximity to the accident or its after math (4) the claimant must have a close personal or familial relationship with the accident victim In present, some of the previous requirements have been abolished and left only these 3 present conditions;

(a)(a) That the secondary victim has some kind of close tie relationship to the primary victim e.g., case of Alcock v Chief South Yorkshire141. Moreover, Negligence (Psychiatric Illness) Draft Bill Nov 2009142 clause 3(2), 3(4) and 3(5) provides categories of secondary victim which could be set as a Guidelines for the legal system. These categories are (a) the immediate victim‟s spouse (b) either parent of the immediate victim (c) any child of the immediate victim (d) any brother or sister of the immediate victim (e) the immediate victim‟s cohabitant (apply together with section 5; regardless of gender, lived together as wife and husband for at least 2 years)143. The 136 See McLoughlin v O’Brain, supra note 134. 137 See Dooley v Cammel Laird &Co Ltd [1951] 1 Lloyd‟s Rep 271 (The claimant was successful in recovering damages for his witnessing his workmate‟s accident.) cited in Catherine Elliott and Frances Quinn, Tort law, Pearson Longman, (6th ed. 2007), p. 49. 138 Vivienne Harpwood, supra note 15, at 48. 139 B.S. Markesinis & S.F. Deakin, supra note 52, at 124. 140 Markesinis and Deakin‟s Tort Law, supra note 115, at 145 -152. 141 Catherine Elliott and Frances Quinn, Tort Law, Pearson Longman, (6th ed. 2007), p. 46 (“As regards the class of persons to whom a duty may be owed… I think it sufficient that reasonable foreseeability should be guide. I would not seek to limit the class by reference to particular relationships such as husband and wife or parent and child. The House of Lords also emphasized that the relationship must actually, as a matter of fact, close in terms of love and affection.”) (Lord Keith)). 142 Negligence (Psychiatric Illness) Draft of a Bill, (November 2009), available at http://www.lawcom.gov.uk/docs/lc249bill.pdf. 143 Law Commission No.249, supra note 119, ¶ 6.27.

37

proposed fixed-list was made as to presume the existence of a close tie of love and affection between a person in the fixed-list and the injured person144.

(a)(b) That the secondary victim is proximity, immediate aftermath or sufficiently close to the accident in term of time and space145.

(a)(c) That the injury, amounting to recognized illness, has been caused by direct perception of the accident or immediate aftermath146 e.g., the plaintiff was in the action by himself, not via TV or telephone except where the communication can create the atmosphere as if the secondary victim is in the real scene of the accident, then the secondary victim might be able to claim damages e.g., case of Froggatt v Chesterfield and North Derbyshire Royal Hospital NHS Trust147: a son was able to recover damages for his non-pecuniary loss since he heard the news which explained a very clear picture of the actual situation, and clearly explained the situation where his mother was naked on the surgery bed and might be death because of the surgery operation that resulted from a medical negligence in diagnosing sickness of this patient (the mother of the claimant). Still, there is a thought that the Court might apply the „foreseeability‟ rule since in showing pictures of an unidentified dead via television, such pictures would be transmitted and that the relatives would immediately receive the transmitted pictures. Yet, there is an insistence that the notion of „direct perception‟ should be ruled148. Excluding the element in (a)(a), the elements in (a)(b) and (a)(c) was recommended to be abolished149. Nevertheless, there are different kinds of secondary victims e.g., relatives, friends, rescuers, employees, unwitting agents and bystanders150. In order to identify secondary victim, the law does not define it by the kind of secondary victim instead, by the requirements above stated. The chart represents the determination of secondary victim is as shown below:

144 Id. ¶ 6.24-6.26 (Draft Bill, clause 3(1)-3(5)). 145 See McLoughlin v O’Brain, supra note 134. 146 Damages for Psychiatric Illness, (Scottish Law Commission, Discussion Paper no. 120, 2002), ¶ 4.5. 147 [2002] WL 3167323. 148 [1992] 1 AC 310, 387 (Nolan Lj) cited in Markesinis and Deakin‟s, supra note 115, at 148. 149 Law Commission No.249, supra note 119. 150 Catherine Elliott and Frances Quinn, supra note 141, at 42-53; Law Commission No.249, supra note 119, ¶ 7.11-7.16 (By standers might be allowed for particular horrific accident but it is hard to define the terms „particular horrific‟ therefore, the law commission recommended that there should be no specific legislation to deals with bystanders.).

38

Secondary Victim151

Notice that in the situation where the plaintiff was in the accident, or at least believed so, but fortunately having no physical injury except for psychiatric injury, he will be considered as a primary victim152. In brief, English law moved away from the principle of physical impact to foreseeablity that the relative is the person who is entitled to claim damages if it can be foreseen that he/she will be shocked by the news of their relatives‟ disaster 153. This made English Court encounter lot of series of cases which leads to the limitation in the case of Alcock v Chief Constable of South Yorkshire Police154. Also, the boundary of protection has been narrowed again for the rescuer in White and others v Chief Constable of South Yorkshire155

151 Catherine Elliott and Frances Quinn, supra note 141, at 53. 152 Id. at 39. 153 McLoughlin v O’Brain, supra note 134; Law Commission No.249, supra note 119. 154 [1992] 1 AC 310 (In a FA Cup Semi-Final match, people were being crushed against the high fences that divided the terraces from the pitch, the incident was being shown live in the television, 95 people died and about 400 got injured. The incident though to be caused by negligence of the police who negligently decided to let too many people enter into the terrace.) cited in Catherine Elliott and Frances Quinn, supra note 141, at 43. 155 See White and others v Chief Constable of South Yorkshire (1998) (The appellants claimed damages for their psychiatric injury as primary victims under the rule set in Alcock as they were all in the scenes, being rescuers and employees of the police force. The House of Lords rejected the claim because it would substantially expand the boundary of liability of the wrongdoer unless there was an

39

(iii) Damages for Bereavement English law provides the right to claim damages for bereavement according to the Fatal Accident Act, 1976, chapter 30, section 1A(2)(a)156 i.e., damages from the loss of a child, parents or spouse in the amount of 10,000 pounds which is a fixed sum157. Tony Weir, a British scholar158 commented that the purpose in granting a fixed sum is to maintain the unique standard since everyone in the society should have equal right under the same law. That everybody should have equal right to feel grief regardless of other function involved i.e., economic status and social status.

In conclusion, English law does not automatically recognize compensation for grief. Damages for bereavement is granted according to the statutory law i.e., the Fatal Accident Act 1976.

(iv) Inheritability Before the death of the deceased, the deceased had experienced non-pecuniary loss i.e., pain and suffering and/or loss of amenities, English law, even before any action has taken place, allows the right to claim damages for non-pecuniary loss to pass to the estate and is able to recover the full value of any damages for pre-death non-pecuniary loss159. There was also a request to abolish this principle in the Law Commission but the Commission had rejected the request based on two main reasons that (1) it will encourage the wrongdoer to delay settlement which forces the injured person to accept the unfair settlement as he is dying (2) it is unfair to the deceased and his heir(s) because the right to claim damages for pre-death non-pecuniary loss is not new but rather the preservation of the existing right160.

3.1.1.1.2 Damages for Non-Pecuniary Loss that are not Recoverable (i) Damages for Pure Non-Pecuniary Loss and Emotions In general principle, English Court does not grant damages for pure non-pecuniary loss. English Court grants damages for non-pecuniary loss, not necessary to be accompanied with any physical damage, if the Court finds that (1) the nature of the expose to personal danger of physical harm from the accident that was occurring) cited in Vivienne Harpwood, supra note 15, at 51. 156 See the Fatal Accident Act 1976, , available at http://www.legislation.gov.uk/ukpga/1976/30. 157 Nicholas J McBride&Roderick Bagshaw , Tort Law, (London: Pearson Longman), (2d ed. 2005), pp. 627-628. 158 Biography, available at http://www.britannica.com/EBchecked/topic/639096/Tony-Weir and; Tony Weir, Tort Law, Oxford University Press, p. 196. 159 Law Reform (Miscellaneous Provisions) Act 1934 § 1(1) (On the death of the defendant or claimant, all causes of action shall survive against, or for the benefit of, his estate except for defamation case and a claim for damages for bereavement. However, damages will not cover exemplary damages or damages for loss of income in respect of any period after the deceased‟s death); This Act is active even if either the defendant or the claimant has died before the commencement of the proceeding. 160 Law Commission No.257, supra note 118, ¶ 2.61.

40

illness amounts to a serious psychiatric illness161 as seen in Dulieu v White&Sons162and McLoughlin v O’Brain163. Only mere shock or temporary grief or emotion is not enough to grant compensation164. However, the distinction between mere grief and a more serious and prolonged psychiatric condition is hard to be identified thus we might have to identify it by medical expert who recognized such serious and prolonged psychiatric condition as „post traumatic stress disorder‟ 165; psychiatric illness. (2) there is causation between the injury and the accident occurred as in case of McLoughlin v O’Brain166 that set the rule of „immediate aftermath‟. In conclusion, English law only compensates non-pecuniary loss if the loss amounts to any recognized psychiatric illnesses167 which will be regarded as injury to body. Emotions, such as sadness, are normally losses that are not recoverable, unless granted under specific law i.e., in case of injury to life called damages for bereavement. In addition, the reason to enact specific law is because English law does not want to extend the scope of liability.

3.1.1.2. Product Liability With regard to the duty of care in consumer protection area, Lord Atkin has opined in Donoghue v Stevenson168 that the manufacturer has the duty of care owned to their end-users, later on, this principle is extended to cover anyone who involves in the product supplying chain. Such person will be deemed to have the duty of care owned to their end-users as well therefore, anyone in the product supplying chain can be sued under the product liability law169. English law guarantees protection for consumers by the neighbor principle of Lord Atkin170 referring to the implied

161 Vivienne Harpwood, supra note 15 at 56. 162 Dulieu v White&Sons, supra note 129. 163 McLoughlin v O’Brain supra note 134. 164 Vivienne Harpwood, supra note 15, at 57 (The first hurdle which a claimant must surmount was to establish that he was suffering not merely grief, distress or any other normal emotion but a positive psychiatric illness.). 165 B.S. Markesinis & S.F. Deakin, supra note 52, at 123. 166 McLoughlin v O’Brain, supra note 134. 167 See Law Commission No.249, supra note 119, ¶ 3.27-3.33 (The Law Commission acknowledges the distinction between psychiatric illness and mere mental distress but, uttered to draw the line between them is not suitable for legal purpose as the distinction can be changed over time according to various factors for example, medical science.). 168 [1932] AC 562 (Even there is no contract, there might have a remedy under tort laws for damage caused by defective goods.) cited in Vivienne Harpwood, Modern Tort Law, (London: Cavendish Publishing Limited), (7th ed. 2005), p. 340. 169 Catherine Elliott and Frances Quinn, supra note 141, at 179. 170 1932 AC 580 cited in อนนต จนทรโอภากร, กฎหมายวาดวยความรบผดเพอความเสยหายอนเกดจากสนคาทขาดความปลอดภย, โครงการต าราและเอกสารประกอบการสอน, คณะนตศาสตร มหาวทยาลยธรรมศาสตร, (กรงเทพฯ: ส านกพมพเดอนตลา), 2545, หนา 32 (Anan Chantara-opakorn, Product Liability Law, Faculty of Laws, Thammasat University, (Bangkok: Deauntula Publisher), (2002), p. 32).

41

warranty171 to overcome the strict privy of contract principle still, it is based on fault based liability. In addition, referring to the case of Donoghue v Stevenson, Lord Macmillan also asserted that „the categories of negligence are never closed‟172, in the sense that the Court possesses the power to create new duty situations expanding the area of liability.173 Seeing that, the case of Donoghue v Stevenson itself also seems to have been at least partly psychological in origin as well174. Later on, English law has adopted strict liability in the Consumer Protection Act 1987 (CPA) according to the EC Directive 1985 described below; The Council Directive 85/374/EEC of 25 July 1985 on the approximation of the laws, regulations and administrative provisions of the Member States concerning liability for defective products is a directive of the Council of the European Union that created a regime of strict liability for defective products175, (EC Directive 85/374/EEC or hereinafter refers as EC Directive), its Article 9(a) states that „damages means damages caused by death or by personal injuries‟. However, the EC Directive does not mention about the regime of awarding damages for non-pecuniary loss i.e., pain, suffering, loss of amenity and/or emotional distress. Therefore, granting damages for non-pecuniary loss or not will be depended on each member states‟ domestic law. For England, the domestic law refers to the Consumer Protection Act section 5(1) stated that „damage means damage to life and personal injuries‟. It does not specifically indicate that damages shall include damages for non-pecuniary loss either. Accordingly, persons who seek to claim damages for non-pecuniary loss under the Consumer Protection Act 1987 (CPA) must follow the general principle of tort176 which provides the right to claim damages for mental damage177 but to the extent of recognized psychiatric injuries. However, product liability claim can be made under the CPA whether under tortious or contractual claim178.

171 See Sales of Goods Act 1979 § 13(1) (Where there is a contract for the sale of goods by description, there is an implied condition that the goods correspond with the description.). 172 [1932] AC 562, 619. 173 Markesinis and Deakin‟s Tort Law, supra note 115, at 125. 174 Miller, Product Liability &Safety Encyclopaedia, Division III Liability in Tort, Butterworths, p. 1, 35 (Severe gastro-enteritis was allegedly suffered as a result of drinking a bottle of ginger beer contaminated by the remnants of a decomposed snail.). 175 The word „defective‟ means not safe as persons generally are entitled to expect cited in Ian Dodds-smith, Micheal Spencer, England & Wales, (2006), The International Comparative Legal Guide to: Product Liability 2006: a Practical Insight to Cross-Border Product Liability Work 115, Global Legal Group Ltd., p. 115. 176 See Consumer Protection Act 1987 § 6(7) (The claim of product liability case according to part one shall be deemed as tortious claim.). 177 Ian Dodds-smith, Micheal Spencer, England & Wales, (2006), The International Comparative Legal Guide to: Product Liability 2006: a Practical Insight to Cross-Border Product Liability Work 115, Global Legal Group Ltd., p. 121-122. 178 Ian Dodds-smith, Micheal Spencer, supra note 177, p. 115-116.

42

3.1.1.3 Method of Calculation The objective of awarding damages in tort is to put the plaintiff back to the prior position before tort had occurred179, as possible as the money can do,180 which was said by Lord Blackburn181:

„Where any injury is to be compensated by damages, you should as nearly as possible get to that sum of money which will put the person who has been injured…in the same position as he would have been in if he had not sustained the wrong‟ „And the fact that the claimants are too seriously injured to enjoy the compensation is irrelevant. The amount of compensation shall be an amount that is fair, reasonable and just for the society as a whole.‟

But „What amount does society think as fair, reasonable and just?‟ By relying on each Judge‟s discretion resulted in inconsistent decisions with inconsistent amount of damages. Finally, the English Court found the tool to maintain consistency in the amount of damages so that everybody will be similarly compensated. This tool called „The Judicial Studies Board Guidelines‟ (JSB Guidelines). It is designed to facilitate the Court in assessing the amount of damages by giving criteria of injuries and the approximate amount of damages for each type of injury. The JSB Guidelines was first established in 1992, even there are some comments on the JSB Guidelines authority182 still, it is so respectful in practice. Professor Alastair Mullis commented that the JSB Guidelines is respectful because of its provenance and it represents distillation of general principles from previous decided cases183. This is because the decisions of decided cases had been thought thoroughly before awarding damages for non-pecuniary loss184. The function of the JSB Guidelines are (1) to give the explanation of the injury which has to be referred to medical valuation185 (2) to give what should be concerned in determining the gravity of damage and (3) to give the approximate amount in the bracket for the Judge to exercise his discretion taking into account other factors such as age etc. Even the JSB Guidelines is not binding at law186, it is now widely used by practitioner of this field.

179 Id. at 121. 180 David Green, Law of Torts, The Cavendish Q&A Series, Cavendish Publishing Limited, (2d ed. 1995), p. 214. 181 See Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 at 39. 182 See Arafa v Potter [1994] PIQR Q73 (The JSB Guidelines are not themselves law, since they have no legislative power.) cited in Law Commission No.257, supra note 118, at 2. 183 E-mail from Professor Alastair Mullis, Professor of Law, University of East Anglia, to Isara Lovanich, the author (Oct. 2, 2010) (on file with author) . 184 See Taylor v Bristol Omnibus Co. Court of Appeal [1975] 1 W.L.R. 1054; 119 S.J. 476; [1975] 2 All E.R. 1107 (The Court granted 27,500 pounds as damages for pain, suffering and loss of amenities for a bright kid who became badly crippled infant as he faced a severe brain damage.) cited in Tony Weir, A Casebook on Tort, (London: Sweet& Maxwell), (8th ed. 1996), p. 635. 185 See the JSB Guidelines. 186 “[T]he JSB Guidelines has no legal authority over the statutes and decided cases. That‟s why we may have to seek the right compensated amount from the previous cases from Kemp and Kemp (1982),

43

Punitive damages can be found in tortious claim187 but it will be granted in a limited manner in order to prevent defendants who seek to make profit from the lawsuit than to compensate what was lost188. However, there is no ceiling for recoverable damages under tortious claim189.

For punitive damages claiming under the CPA, English Court will grant punitive damages only in certain cases. It shall be the case that the elements are met with the Court‟s principle190 e.g., a fact that reveals the defendant‟s intention to seek for outstanding profit from the damage he owes to the plaintiff, for instance intends to deliver defected product(s), refuses to call back defected product(s) or where the laws specifically empower the Court to grant punitive damages.

3.2 Restricted Pluralism 3.2.1 Personal Injury and Damages for Non-Pecuniary Loss in Germany

3.2.1.1 General System Former German law, the German Civil Code or BGB, section 253 par 1191 grants the right to claim damages for non-pecuniary loss only if it is specifically provided by the laws; where the loss is accompanied with injury to body, health, liberty and/or from the immoral act192.The most significant section used to empower the Court in granting damages for non-pecuniary loss is section 847 of the BGB which provides compensation for pain and suffering (“Schmerzensgeld”) in case of tortiously caused bodily harm though, it did not apply in case of strict liability regime193. However, when the trend in the international stage is likely to favor

the encyclopedia of cases‟ damages.” (Reed v Sunderland HA (1998)) (Sir Christopher Staughton‟s comment) , cited in The Times, (Oct, 16). 187 See Kuddus(AP) v Chief constable of Leicester Constabulary [2001] 2 WLR 1789, available at http://www.publications.parliament.uk/pa/ld200001/ldjudgmt/jd010607/kuddus-1.htm. 188 Ian Dodds-smith, Micheal Spencer, supra note 177, at 122. 189 Id. 190 “In a part of Lord Devlin‟s speech in this case has been adopted by the other members of the appellate committee, held that for the Court to have a discretion to award exemplary damages in tort, either the facts of the case must fall within one or other of two broad factual categories, or the award of exemplary damages in the circumstances of the case must be expressly authorized by statute. The two factual categories are (1) Oppressive, arbitrary or unconstitutional actions by servants of the Government, and (2) Conduct (by the defendant) calculated to make a profit for himself which may well exceed the compensation payable to the plaintive.”) (Rookes v Barnard (1964) AC 1129) cited in Kuddus (AP) v Chief constable of Leicester Constabulary [2001] 2 WLR 1789, supra note 187. 191 BGB § 253 ¶ 1 (For harm which is not pecuniary loss, compensation in money can only be demanded in the case determined by statute.). 192 Jeed Seadtabud, supra note 34. 193 Ulrich Magnus, The Reform of German Tort Law, working paper no. 127, (April 2003), InDret, p. 4, available at www.indret.com.

44

damages for non-pecuniary loss194, German Court seems to be more open to such concept as seen in Princess Soraya Case B.E.1973195 claiming under section 823196 paragraph 1of the BGB197. This case also contested the Court of its power under the Constitution which is why the law must be reformed. After the reform, the old section 847 of the BGB has been abolished and replaced by the new section 253 par 2 of the BGB198. This new section will apply to all cases regardless of the ground of liability; whether the liability is liability based on tort, liability based on contract or on strict liability199.

3.2.1.1.1 Damages for Non-Pecuniary Loss that are Recoverable (i) Damages for Damage to Mental State that Amount to Recognized Illness

German law does not grant damages for non-pecuniary loss which is not

accompanied with physical injury except where such loss directly affects the physical being in other word, the loss is being regarded as injury to health e.g., nervous shock200. To be exact, German law needs injury to health as a requirement to claim damages for psychiatric injury as per the criteria of section 823 I of the BGB201. However, the nature of health cannot be precisely defined therefore, German Court

194 See the Reasoning of the Draft (“Begründung Regierungsentwurf”) BT-Drucks. (“Bundestagsdrucksache-Parliament” Printed Materials) 14/7752, p. 23s. (One of the four main goals in reforming German tort law is to adapt German tort law to some extent to Europeans Standards) cited in Ulrich Magnus, supra note 193, at 3. 195 Baade, Herzog and Wise, Rudolf Schlesinger’s Comparative Law, (6th ed. 1998) (Princess Soraya, recovered damages for her non-pecuniary loss because her private life story which is not true has been revealed without consent (law of privacy)); Princess Soraya (1973) 34 BVerfGE 269 (The claim was brought by the ex-wife of the Shah of Iran against "Die Welt" and a freelance journalist who published her intimate details of her private life. The German Civil Code has no provision to apply in case of damages for invasion of privacy. The Federal High Court of Justice finally interpreted 'some other right' to include the 'right to personality' however, at the time, damages for non-pecuniary loss can only be recovered in case where provided by statue. But the Federal Court of Justice granted such recovery in the light of changing social conditions and the fundamental values of the Basic Law e.g., the right to protect one's personality. Nevertheless, it was contested that the Court had exceeded their proper authority under the Constitution.) cited in Donald P. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany, Duke University Press, 1997, pp. 124-125. 196 BGB § 823 ¶ 1 (A person who, intentionally or negligently, unlawfully injures the life, body, health, freedom, property or another right of another person is liable to make compensation to the other party for the damage arising from this.). 197 Raymond Youngs, English, French, German Comparative Law, (London: Routledge Cavendish), (2d ed. 2007), pp. 503. 198 BGB § 253 ¶ 2 (If compensation is to be provided because injury to the body, health, freedom or sexual self-determination, fair compensation in money can also be demanded for harm which is not pecuniary loss.). 199 Ulrich Magnus, supra note 193, at 5. 200 Markert n 497, 47 (The shock injury problem, as it might impair the injured person‟s health, under German law has always been one of legal or adequate causations.) cite in Julio Alberto Diaz, Non Physical Damage A Comparative Perspective, (Thesis of Doctor of Philosophy in Law, University of Canterbury) 2010, p.109 availableathttp://ir.canterbury.ac.nz/bitstream/10092/4177/1/Thesis_fulltext.pdf. 201 Scottish Law Commission, Discussion Paper no. 120, supra note 146, at 54.

45

has led down its principle that a psychiatric illness will be regarded as „Injury to Health‟ if it exceeds the level of pain and despair which would normally occur in such situation202. As of 1971 the “Bundesgerichtshof” („Federal Court‟)‟s decision held that „it must be limited to cases where the man in the street, and not only a medical practitioner, would describe it as injury to ..health..injuries203‟. German Law then, has established its principle, not limited to physically ascertainable injuries but also comprised of impairment of health due to psychological impact204 if such psychiatric illness amounts to „Injury to Health‟. German Law rejects firmly any damages for general emotional injury205. It regards emotion as a thing that links to human existence which cannot be protected by laws206. The law sticks to the rule that only injury that falls outside the scope of common risks of life will be subjected to compensation207 in such case, injury must be serious and lasting, as stated above that even a man in the street would describe the injury as injury to health208. Noted that the injured person is entitled to claim damages for his psychiatric illness and will be regarded as primary victim, if he encounters the incident by himself in which such incident is likely to cause him injury or at least made him fear that the injury will occur to him209.

(ii) Damages for Secondary Victims for their Psychiatric Illness Damages for psychiatric illness in case of personal injury is recoverable if such secondary victim fears that the referred incident will occur to the person who is directly/closely related to him/her thus indirectly harm the secondary victim210. It has always been inferred that only close relatives of the deceased/the injured person may claim damages for his/her psychiatric illness under German law211 such as fiancée212

202 C Von Bar, The Common European Law of Torts vol 2, 66 cited in Scottish Law Commission, Discussion Paper no. 120, supra note 146, ¶ 2.7. 203 NJW 1971, 1883, 1884-1885 (translated in B S Markesinis, A Comparative Introduction to the German Law of Torts, p. 110) cited in Scottish Law Commission, Discussion Paper no. 120, supra note 146, at 55. 204 Julio Alberto Diaz, Non Physical Damage a Comparative Perspective, (Thesis of Doctor of Philosophy in Law, University of Canterbury) 2010, p. 109, available at http://ir.canterbury.ac.nz/bitstream/10092/4177/1/Thesis_fulltext.pdf. 205 NJ Mullany and P R Handford, Tort Liability for Psychiatric Damage, p. 57-58 cited in Scottish Law Commission, Discussion Paper no. 120, supra note 146, at 54. 206 Julio Alberto Diaz, supra note 204, at 111. 207 John G. Fleming, Distant Shock in Germany (and Elsewhere), (1972), 20 American Journal of Comparative Law 485, p. 491 cited in Julio Alberto Diaz, supra note 204, at 111. 208 Id. 209 Raymond Youngs, supra note 197, at 503. 210 Id. at 503-504. 211 C Von Bar, supra note 202. 212 BGH, NJW 1969, 2286 cited in Scottish Law Commission, Discussion Paper no. 120, supra note 146, ¶ 4.4.

46

and even unborn child213. These relations of the immediate relatives were treated as Guidelines to determine foreseeability214 which is regarded to be a requirement under German law215. Markesinis claims that „this reliance on “Adäquanztest” shows the tendency of German law (and other modern civil law in general) to use normative concepts of causation in cases where Common lawyers would more evidently have resource to the notion of duty of care216‟. In conclusion, the relatives of the injured person are not entitled to claim damages for non-pecuniary loss except for those immediate relative, fiancé or partner217 if, by physical injury of the injured person, the immediate relative suffers pain and suffering that amount to impair his/her health. In such case, the relative is entitled to claim damages as per section 823 I of the BGB218.

(iii) Inheritability Previously section 847 of the BGB expressed that damages for non-pecuniary loss are neither transferable nor pass to the heirs. Later, such restriction has been abolished therefore, in present; damages for non-pecuniary loss can pass to the heirs.

3.2.1.1.2 Damages for Non-Pecuniary Loss that are not Recoverable (i) Damages for Bereavement Despite all urging to introduce this kind of damages, German Court rejects awarding damages for bereavement because German law regards it as only emotions/grief and because German law regards the heirs as third persons who are able to be compensated only where the law specifically provided so. Without any special law providing otherwise, German Court cannot grant this kind of damages.

213 BGH 5.2. 1985, BGHZ 93, 351 (The child was born impaired due to a nervous shock suffered by the mother during pregnancy) cited in Scottish Law Commission, Discussion Paper no. 120, supra note 146, at 55. 214 B S Markesinis and S F Deakin, Tort Law, p. 217-218 cited in Scottish Law Commission, Discussion Paper no. 120, supra note 146, at 61. 215 RGZ 133, 270 (translated in B S Markesinis, A Comparative Introduction to the German Law of Torts, p. 110) cited in Scottish Law Commission, Discussion Paper no. 120, supra note 146, at 55. 216 Translated in B S Markesinis, A Comparative Introduction to the German Law of Torts, p. 124 cited in Scottish Law Commission, Discussion Paper no. 120, supra note 146, at 55. 217 OLG Stuttgart 21 July 1988, NJW-RR 1989, 477 ff.; LG Tübingen 29 November 1967, NJW 1968, 1187; LG Frankfurt 28 March 1969, NJW 1969, 2286. See GLT, p. 139 cited in Basil Markesinis, Michael Coester, Guido Alpa and Augustus Ullstein, supra note 51, at 82. 218 BGH 11 May 1971, BGHZ 56, 163; BGHZ 93, 351; OLG Freiburg 30 June 1953, JZ 1953, 704 cited in Basil Markesinis, Michael Coester, Guido Alpa and Augustus Ullstein, supra note 51, at 82; § 823 ¶ 1of the BGB (A person who, intentionally or negligently, unlawfully injures the life, body, health, freedom, property or another right of another person is liable to make compensation to the other party for the damage arising from this.).

47

(ii) Damages for Damage to Mental State that do not Amount to Recognized Illness and Emotions Nervous shock must be proved by the expert that the symptom is not forfeit and that the symptom lasts or is serious219. Emotions or inconvenience is always been rejected as a head of damage220. This shows that the standard of granting damages in case of injury to mental stability under German Law is very high221.

3.2.1.2 Product Liability Before the product liability law of Germany was enacted in 1989, German law compensated damage which resulted from an unsafe product222 by using the BGB. However, German scholars found that there is a disadvantage in contractual claims especially the one that is caused by an unsafe product because it is subjected to the doctrine of privy of contract; also there is a disadvantage in tortious claim because claiming under section 823 of the BGB will be subjected to fault based liability in which requires the wrongdoer to breach the duty of care they owe to others or “Verkehrspflicht”223. Anyhow, after the implementation of the EC Directive into the Product Liability Act 1989(PLA)224, it rarely applied; most of the claims brought are claims under tortious ground and the concept of strict liability225. The product liability law of Germany provides damages for personal damage and damage to property; and since 1 August 2002, the law also provides damages for pain and suffering226 (non-material loss) under the rule of strict liability227. Non-pecuniary loss includes pain, suffering and loss of amenities even if the victim is unconscious; the highest amount ever granted is 500,000 Euros228. Nevertheless, even German law has adopted the EC 219 NJ Mullany and P R Handford, Tort Liability for Psychiatric Damage, p. 57-58 cited in Scottish Law Commission, Discussion Paper no. 120, supra note 146, at 54. 220 Id. 221 B S Markesinis and S F Deakin, Tort Law, p. 216 ([A]ll courts try to restrict recovery to serious emotional distress and payment of claims for transient or slight distress is actively discouraged. Moreover, the precipitating event must have been one that would produce serious emotional distress… in a reasonably strong-mined person) cited in Scottish Law Commission, Discussion Paper no. 120, supra note 146, at 61-62. 222 Ina Brock and Stefan Lenze, Germany, (2006), The International Comparative Legal Guide to: Product Liability 2006: A Practical Insight to Cross-Border Product Liability Work 144, Global Legal Group Ltd., p. 144 (The Supreme Court identified that defect are of (1) design defects (2) manufacturing defects and (3) instruction defect.). 223 Id. 224 Id. 225 Stefan Lenze, German Product Liability Law: between European Directives, American Restatements, p. 107 cited in ศกดา ธนตกล, ค าอธบายและค าพพากษาเปรยบเทยบกฎหมายความรบผดตอสนคาไมปลอดภย, (กรงเทพฯ: ส านกพมพวญญชน),(พมพครงท2, 2553) หนา7 [Sakda Thanitkul, The Explanation and Comparative Decisions on Unsafe Product Liability, (Bangkok: Winyuchon Publisher), (2d ed. 2553), p. 7). 226 Id. at 76. 227 Ina Brock and Stefan Lenze, supra note 222, at 144. 228 Id. at 149.

48

Directive into its product liability law, it does not abolish the principle of section 823 BGB. Therefore, the injured person is still able to claim compensation based on both laws in order to be fully compensated229.

3.2.1.3 Method of Calculation The BGB (German Civil Code) distinguishes between damages for pecuniary loss and damages for non-pecuniary loss where generally, the amount of damages for non-pecuniary loss in German law will be determined to compensate the pain, suffering, loss of amenities of the injured person and also to make a satisfaction to the injured person (section 253(2) BGB)230; yet, it is still subjected to the Court‟s discretion as per section 287 of the “Zivilprozessordnung” or the ZPO (procedural law) thus the claimant does not have to determine a specific amount of damages in contrast, what he‟s claiming is regarded to be the minimum amount that the Court will exercise his discretion in order to grant damages; taken into account age, loss of marriage prospect, loss of earning capacity, impairment of possibility to engage in leisure activities, change of personality, loss of senses, unforeseeable future effect, relevant of pre-existing damage, social background, early death and relevance physiological consequences231 therefore, the Court is empowered to grant damages in the amount more than the requested amount232, without any limitation233. However, with the influence of the European continent in making guidelines to facilitate the Court in assessing the amount of damages for non-pecuniary loss, German Court also developed similar Guidelines/table called “Schmerzensgeldtabellen” which is a device to facilitate the Court in determining the amount of damages for non-pecuniary loss.

Nevertheless, the Court‟s discretion is subjected to the law i.e., German law prohibits punitive damages. Even if punitive damages were granted in other jurisdictions, it cannot be enforced under German law. Under German law punitive damages are regarded to be contrary to the public order234.

In addition, under the PLA, German law has restricted the Court‟s discretion by setting the ceiling of recoverable damages that resulted from one incident at 85 million Euros; the amount is varied by industry e.g., The Drug Act has set the ceiling of damages at 120 million Euros235.

229 Anan Chantara-opakorn, supra note 38, at 46. 230 Giovanni Comand , Some Insights into the Italian ‘Revolution(s) for Non-Pecuniary Damages, p. 14, available at www.liber-lab.eu. 231 Basil Markesinis, Michael Coester, Guido Alpa and Augustus Ullstein, supra note 51, at 68-78. 232 Id. at 65. 233 Ina Brock and Stefan Lenze, supra note 222, at 150. 234 Id. 235 See Drug Act.

49

3.2.2 Personal Injury and Damages for Non-Pecuniary Loss in Italy 3.2.2.1 General System The main articles provided in Italian tort compensation system which we have

to study are; Article 2043 of the Italian Civil Code (“Il Codice Civile Italiano”) „Whoever

intentionally or negligently commits an illicit act must pay damages236‟ and; Article 2059 of the Italian Civil Code „non-patrimonial damages can be

compensated only in the cases set forth by law237‟ Italian law is considered to be restricted pluralism providing general rule in

article 2043 along with specific rule i.e., article 2059 for non-patrimonial damages or, stated in this thesis, „damages for non-patrimonial loss‟. Therefore the Court tends not to grant damages for non-patrimonial loss in general except there is a law expressly provided as such i.e., article 185 of the Criminal Code. This left damages for non-patrimonial loss as to “pretium doloris” (the price of pain) or damages for moral loss arising out of criminal action238. This is the strict interpretation of section 2059 which is counter to the Constitution. Damages for non-patrimonial loss should be awarded in any case that injures the right of others239.

The start of the revolution in Italy preliminarily arose from the scope of

personal injuries in “Encicplopedia del Diritto” in which indicate that earning is the parameter to award damages in case of personal injury. It led to a misconception that personal injuries will only be compensated for economic loss for example, the income reduced from such injury240. As Tuscan Court once outrageously stated: “A person who has no value exists i.e., old people who is incapable to earn

anything241.” This outrageous determination led to the reshape of the approach of damages for non-pecuniary loss resulted in the present Constitutional approach which provides that everyone‟s health (right to health or “danno alla salute” or “danno biologico”, i.e., right of no injuries affecting the victim‟s personality and capacity to lead a

236 Italian Civil Code Art. 2043 (“Qualunque fatto doloso o colposo, che cagiona ad altri un danno ingiusto, obbliga colui che ha commesso il fatto a risarcire il danno”). 237 Italian Civil Code Art. 2059 ( “Il danno non patrimoniale deve essere risarcito solo nei casi determinati dalla legge”). 238 Giovanni Comand , supra note 230, at 3. 239 Basil Markesinis, Michael Coester, Guido Alpa and Augustus Ullstein, supra note 51, at 92. 240 Giovanni Comand , supra note 230, at 9. 241 See Tribunale di Firanze on 5 January 1967 (Trip. Firanze, 6 gennaio 1967), in Arch.resp.civ.,1969, 130 cited in Giovanni Comand , supra note 230, at 9.

50

peaceful existence242, is protected under the Constitution Article 3243and Article 32 of the Italian Constitution as fundamental rights regardless of the earning ability of the injured person. The approach reflected in one statement of the Court that „in this examined case all requirements for protecting the right to health, acknowledged by the Constitution as a fundamental right, are found244‟, in this way damages for non-pecuniary loss will not be limited by the strict interpretation of article 2059. In fact, the Constitution Court recognizes “danno alla salute” as a first, essential, proprietary compensation that conditions every other one245‟.

In brief, in old decisions, according to the wording in article 2059, the Court

has to interprete damages for “danno alla salute” as damages for pecuniary loss that has no limitation (under article 2043) and left damages for non-pecuniary loss as only “pretium doloris” which will be awarded only in case of criminal offense even though the criminal suit is dismissed246. “Pretium doloris” is a temporary, fundamentally transient, psychological upsetting contained247. This was decided by the Constitutional Court (“Corte Costituzionale”)248 but it is, however, not followed by the Supreme Court (“Corte di Cassazione”). The Supreme Court adversely regards damages for “danno alla salute” as damages for non-pecuniary loss which once again came under article 2059 but with broader protection i.e., not only “pretium doloris” that is recoverable”. At present, the Supreme Court has laid down its principle which the Constitutional Court has concurred which are249:

242 Basil Markesinis, Michael Coester, Guido Alpa and Augustus Ullstein, supra note 51, at 83. 243 Angelo d. Marra, Italian Law No. 67/2006 on discrimination against people with disabilities: an overview, p. 2, available at http://www.personaedanno.it/cms/data/artcoli/files/006488_resource_orig.doc ((1) all citizens have equal social status and are equal before the law, without regard to their sex, race, language, religion, political opinions, and personal or social conditions or known as the principle of formal equality and (2) it is duty of the Republic to remove those economic and social obstacles which, limiting in fact the freedom and equality among citizens, hinder the full development of any human person and the participation of all workers in the political, economic, and social organization of the country which is known as „the principle of substantive equality‟.). 244 See C. Cost 26 July 1979, no. 88 [1979] Resp. civ. e orev.,698 with commentary by G. Ponzanellii, Danno non patrimoniale e danno alla salute: due sentenze della Corte Costituzionale cited in W. V. H. Rogers,Ewa Bagińska, Damages for Non-Pecuniary Loss in a Comparative Perspective, 2001. 245 In these terms Corte Cost 14 july 1986 no.184, [1986] Foro italino (Foro it), I, 2053, with commentary by G. Ponzanelli, La Corte Constituzionale, il danno non patrimoniale e il danno all salute cited in W. V. H. Rogers,Ewa Bagińska, Damages for Non-Pecuniary Loss in a Comparative Perspective, 2001. 246 Giovanni Comand , supra note 230, at 3. 247 See Corte Cost. 14 luglio 1986 n. 184. 248 Corte Cost., 27 October 1994, no. 372, [1994] Giustizia civile (Giust.civ.). I, 3035, with commentary by F.D. Busnelli, Yre"punti esclamativi", tre "punti interrogativi", un "punto e a capo", Corte Cost., 22 july 1996, ord. no. 293, [1997] Giurisprudenza italiana (Giur.it.). II, 313 with commentary by G Comand , L'ordinanza 293 del 22 luglio 1996 ed il nodo irrisolto dell'art. 2059 c.c. cited in W. V. H. Rogers,Ewa Bagińska, Damages for Non-Pecuniary Loss in a Comparative Perspective, 2001. 249 Giovanni Comand , supra note 230, at 20.

51

1) Non-pecuniary loss is recognized by laws and damages for non-pecuniary loss will be granted accordingly and; 2) There is no need to make a sub-heading of damages for non-pecuniary loss

e.g., existential damages250 for article 2059. The requirement is that only such loss is caused by a wrongful act and the loss cannot be measured in terms of money and;

3) In case where such injury is an injury to the right guaranteed by the

Constitution, article 2059 will not be in effect as it is contrary to the Constitution251. Therefore, even the loss is not explicitly provided within the laws, damages for non-pecuniary loss are recoverable if it injures the right guaranteed by the Constitution.

In conclusion, the revolution of the Italian Law brought them to the Constitutional approach. By way of interpretation, Italian scholars divided non-patrimonial damage (“danno non-patrimoniale”) into two types252 (1) pain and suffering (“danno morale”)253 and (2) loss of amenities (“danno alla salute” or “danno biologico”)254. This “danno alla salute” may be described as a damage resulting in a „physical devaluation of the victim‟. It can be in form of severe physical alteration of the individual and/or his way of life which resulted from loss of health, freedom, free will, or privacy. These will be regarded as forms of losses requiring compensation independent of compensation for pain and suffering255. Hence, it will be compensated even there is no pain and suffering or any pecuniary loss according to the Constitution Court‟s decision (“Corte Cost” 14 July 1986 no.184,[1986])256. Within this interpretation, having “danno alla salute” has made Italian legal system one of the systems that provides broadest protection under the law of torts i.e., by regarding non-pecuniary loss as one of losses that resulted from injury to health or “danno alla salute”257

250 Angelo d. Marra, supra note 243, at 15 (Existential injury is the injury that made life more difficult.). 251 Giovanni Comand , supra note 230, at 20. 252 Basil Markesinis, Michael Coester, Guido Alpa and Augustus Ullstein, supra note 51, at 84. 253 Id. 254 Id. at 84- 86 (Psychiatric injury can be considered as the interference with the health of a person considered in and of itself as a legal interest worthy of valuation and thus worth to compensate. It covers both temporary and permanent disabilities for example, damage to social life (Cass. 24 April 2001, no. 6023) and reduction of normal life opportunities. (Cass. 27 November 2001, no. 15034)). 255 Christian Von Bar, The Common European Law of Torts Vol 2: Damage and Damages, Liability for and without Personal Misconduct, Causality, and Defences, (2000), Clarendon Press Oxford, p. 27. 256 Giovanni Comand , Doing Away with Inequality in Loss of Enjoyment of Life, cited in John O. Ward, Robert J. Thornton, (2009), 91 Personal Injury and Wrongful Death Damages Calculations: Transatlantic Dialogue Contemporary Studies in Economic and Financial Analysis 255, Emerald Group Publishing Limited, at 260-261. 257 Basil Markesinis, Michael Coester, Guido Alpa and Augustus Ullstein, supra note 51, at 84.

52

3.2.2.1.1 Damages for Non-Pecuniary Loss that are Recoverable According to the Constitutional approach, any injury that injures the right

guaranteed by the Constitution is recoverable. The relatives of the victim can claim damages for non-pecuniary loss if he can show the actual existence of the injury to his health which incurred from the death of the deceased by referring to “danno alla salute”. The “danno alla salute” approach is the possibility to measure as objectively as possible the impact of the impairment on the individual258. However, “danno alla salute” cannot directly use to claim damages for loss of a life because health has a different value from life. It is not the maximum possible damage that can cause to health instead; it terminates all rights of the injured person and also the life of the deceased259. Besides “danno alla salute”, there is “danno morale”. “Danno morale”

connects with an injury concerning moral sphere of the individual. It is considered as being existence even if it doesn‟t materially exist. Damages for “danno morale” is usually claimed by immediate relative or husband and wife260. It is awarded in case of injury to health or violation of other personal rights261.

3.2.2.1.2 Damages for Non-Pecuniary Loss that are not Recoverable Pure grief is not included in “danno alla salute” because it does not actually

affect health/body and because it is too difficult to ascertain, the argument of the chemical reaction between pure grief and the function of the brain does not receive much attention from the Court of the same practice of the conservative common law. However, some Courts have more sensitivity for instance; the Court of Milan262 has awarded damages for pure grief to the parent of the deceased as there was an alteration to their mental equilibrium as a result of the grief. Though, some reject such approach263. In overall practice, damages for pure grief will be awarded only in extreme serious cases excluding fatal cases and normal injuries cases264.

258 Giovanni Comand , supra note 230, at 11. 259 Cass. 20 January 1999, no. 491, Giust. Civ. Massimario, 1999, 115 cited in Basil Markesinis, Michael Coester, Guido Alpa and Augustus Ullstein, supra note 51, at 89. 260 Basil Markesinis, Michael Coester, Guido Alpa and Augustus Ullstein, supra note 51, at 91. 261 Id. at 94. 262 2 Sep 1993 (In Nuovagiur. Civ. Comm..,1993, I, 680) cited in Basil Markesinis, Michael Coester, Guido Alpa and Augustus Ullstein, supra note 51, at 91. 263 Giulio Ponzanelli, „La Corte costituzionale e il danno da morte‟, as an annotationto the decision under examination, Foro it., 1994, I, 3303 cited in Basil Markesinis, Michael Coester, Guido Alpa and Augustus Ullstein, supra note 51, at 91. 264 Giovanna Visintini, I fatti illeciti, I, Ingiustizia del danno. Imputabilita‟ (Padova, 1987), p.87 ff.; Guido Alpa, La responsabilita‟ civile (Milano, 1999), p. 654 ff. cited in Basil Markesinis, Michael Coester, Guido Alpa and Augustus Ullstein, supra note 51, at 90-91.

53

3.2.2.2 Product Liability Italy has its own product liability law as well as other European countries

called the DPR n. 224 dated May 24, 1998 which adopted the EC Directive‟s principle. However, a few numbers of cases have been filed based on product liability law because Italy Court provides very broad protection by interpreting its tort laws i.e., by Constitutional approach265. In other words, Italian product liability law traditionally based on general torts section 2043 of the Italian Civil Code (CC) states that „any person whose willful or negligent conduct causes unfair detriment to another must compensate the victim for any resulting damages suffered‟ or the “neminem laedere” principle (no one to injure)266. Under this section 2043, consumer can sue under tortious claim according to fault based liability without having to have any contractual relationship between the consumer and the business operators. This is because case law has developed a theory that the defective nature of a product has proved the negligence in manufacturing process in itself267. Nevertheless, the Consumer Code, former DPR224/88, which applies the strict liability regime, requires the injured person to prove 2 elements (1) such damage is resulted from the defective product, without proving the fault of the manufacturer and; (2) causation between such damage and the use of the defective product. What is more, recent case law has held that section 2043 and the Consumer Code share the same principles thus claiming under the Consumer Code, damages for moral loss is recoverable268. In all cases, Italy legal system allows both forms of protection, that the consumer can bring a claim both under its Consumer Code and its Civil Code section 2043269. In addition, Italian university is considering toxic tort and product liability as

tort and not of criminal offense. Since some areas of tort and crime may be overlapped however, if considered from the purpose of compensation, tort is to compensate the victim while criminal is to punish the wrongdoer270. The example of product liability case is the case of Stalteri v. British American Tobacco Italia, the tobacco case, the damages has been awarded against the defendant, by demonstrating that the death of the deceased was related to the genetic mutations caused from smoking. On the same hand, the defendant was failed to prove that he had conducted what is suitable to avoid such harm.271 265 Elenora Rajneri, Interaction Between European Directive on Product Liability and the Former Regime in Italy, p. 69 cited in ศกดา ธนตกล, ค าอธบายและค าพพากษาเปรยบเทยบกฎหมายความรบผดตอสนคาไมปลอดภย, (กรงเทพฯ: ส านกพมพวญญชน),(พมพครงท2, 2553) หนา197 (Sakda Thanitkul, The Explanation and Comparative Decisions on Unsafe Product Liability, (Bangkok: Winyuchon Publisher), (2d ed. 2010), p. 86). 266 Francesca Rolla, Filippo Chiaves, Italy, (2006), The International Comparative Legal Guide to: Product Liability 2006 A Practical Insight to Cross-Border Product Liability Work 174, Global Legal Group Ltd., at 174. 267 Id. 268 Id. at 181. 269 Id. at 174. 270 Glanville Williams, Foundation of the Law of Tort, Butterworths, (2d ed. 1984), pp. 3-4. 271 Stefano Bertone, Italy; Tobacco Case, Studio legale Ambrosio e Commodo (TO), available at www.globaljusticeforum.com/.../product_liab_develop_bertone.ppt.

54

3.2.2.3 Method of Calculation Due to the inability to measure non-pecuniary loss into terms of money; it is

impossible to find the exact amount of damages for non-pecuniary loss, if otherwise calculated by medical treatment then it may become damages for pecuniary loss. However, subjective suffering is taken into account in awarding damages for “danno morale”. Despite this hardship, the Court, inspired by the French method of calculation

called “calcul au point”272, has sought a solution in assessing the amount of damages for non-pecuniary loss as to comply with the principle of equality of the Constitution resulting in Italian‟s method of calculation called “calcolo a punto” (evaluated by points). The method is to use medical expert to evaluate the level of disability then multiplies the level of disability with the monetary value, assigned by the Court. The tables of this evaluation273 and monetary value are prepared by medical examiner, trade association and judges274 The tables are the same in every Court in case of assessing damages for “danno morale”275 but will differ from Court to Court in case of assessing damages for “danno alla salute”276. The table for “danno alla salute” is varying from court to court. For instance, a 5 years old child, for each point of permanent disability, may obtain 550 Euros from Tribunal in Milan but 1,200 Euros from Tribunal in Genoa. In this regard, article 5 of Law no.57 of 5 March 2001 has fixed a uniform price of disability i.e., created uniform tables which are now available up to 9 points, those higher points still remain uninformed. The figure can be adjusted taken into account inflation rate and the cost of living277 while “danno morale” taking into account circumstances of the case. In practice, damages for “danno morale” is awarded about a half less than damages for “danno alla salute”. In a few districts, the Courts have their tables that set out for this kind of damages in which empower the Court to award different amounts of damages by referring to several factors e.g., duration of pain and suffering. However, the majority of the Courts still reserve their discretionary power278i.e., the Court‟s discretionary power remains in granting the finalized sum of damages.

272 Basil Markesinis, Michael Coester, Guido Alpa and Augustus Ullstein, supra note 51, at 19 (It is the method that damages are measured by point system fixed by medical profession. Point 1 represents the lowest disability and point 100 represents the permanent disability. The amounts given will be calculated from the point of invalidity vary according to standard factors e.g., age, sex, etc. of the victim.). 273 See infra Appendix A. 274 Basil Markesinis, Michael Coester, Guido Alpa and Augustus Ullstein, supra note 51, at 19 (Every local court has tables drafted with the help of statistics.); Giovanni Comand , supra note 230, at 17; Giovanni Comand , supra note 256 at 259-260 (The Courts create their own tables of monetary values, which decrease according to age and increase according to the degree of disability with reliance to previous decisions.). 275 Basil Markesinis, Michael Coester, Guido Alpa and Augustus Ullstein, supra note 51, at 19. 276 Id. at 84. 277 Id. at 19. 278 Id. at 84.

55

Furthermore, Italian regime is trying to move away from discretion to statutory, for instance, the intervening of the parliament by passing law no 273 of December 2002. Such law gives additional criteria aiming to cap the levels of award which objectively to 1) act as a curb against inflation and; 2) end inequalities279. Yet, under the criteria, discretion power of the Court still maintains as it is favored by those who believe that everyone enjoys their lives in different way280.

Also, under Italian Civil Code and the Consumer Code, even if damages for

“danno alla salute” are recoverable, subjected to the method of calculation and the Court‟s discretion281, however damages claimed shall be no more than the actual damages incurred from actual loss because the principle of tort law is to restore the prior position of the victim therefore, no punitive damages were allowed282. Damages will be mostly assessed based on fact, evidence and sometime Judge‟s discretion framed by statistical criteria and presumptions or equitable criteria283. It can be said that „there is no limited amount for any recoverable damages as long as it would restore the “status quo ante” of the injured person‟, except for nuclear activities or other activities framed by special law284.

3.3 The Single Rule 3.3.1 Personal Injury and Damages for Non-Pecuniary Loss in France 3.3.1.1 General System French law was influenced by natural law285, it is classified itself as the „Single rule‟ since it learnt from Persia‟s mistake that having too lot of provisions can lead to confusion in interpreting the laws however, it also recognizes the necessary of having specific provisions for vicarious liability apart from fault based liability (separate liability for one‟s own act from liability for other‟s act) and now, French legal system is having the new regime similar to other European jurisdictions called strict liability286.

279 Id. at 87. 280 Scalfi, Resp. civ. Prev., 1988, 223. cited in Basil Markesinis, Michael Coester, Guido Alpa and Augustus Ullstein, supra note 51, at 95. 281 Basil Markesinis, Michael Coester, Guido Alpa and Augustus Ullstein, supra note 51, at 19 (“Danno morale” and “danno alla salute” is left to the Court‟s discretion but currently has some pressure to apply tables.). 282 Basil Markesinis, Michael Coester, Guido Alpa and Augustus Ullstein, supra note 51, at 83. 283 Francesca Rolla, Filippo Chiaves, supra note 266 at 181. 284 Id. 285 Yud Sang-utai, supra note 28, at 20-21. 286 จรญ โฆษณานนท, นตปรชญา, พมพครงท 13, (กรงเทพมหานคร: ส านกพมพมหาวทยาลยรามค าแหง), 2547, หนา 118-119 (Jarun Kosananun, Philosophy of Law, (Bangkok: Ramkumheng University Publisher), 2004, pp. 118-119)

56

The acknowledgment of non-pecuniary loss is deeply rooted and well established in the French legal system and it is widely relied on among its Judges and scholars that it performs the fundamental function of expressing society‟s acknowledgement of what is currently called as the „eminent dignity of human dignity287‟. The French concept of “dommage moral” is so wide that there is no legal obstacle in claiming compensation for pure psychological disorders, provided they are medically ascertained288. 3.3.1.1.1 Damages for Non-Pecuniary Loss that are Recoverable The general principle of French tort law is section 1382 of the French Civil Code (“Code Civil”)289 states „anyone who, through his act, causes damage to another by his fault shall be obliged to compensate the damage290‟. Thus, all matters that amount to a disturbance/injury to one‟s living conditions may be subjected to compensation claimed under section 1382 as long as it is direct and immediate consequence of the incident291 caused by fault of the tortfeasor292. French legal system has no reluctance to compensate for pure non-pecuniary loss as it believes that equal treatment for psychiatric and physical injury claims should be made293. Moreover, damages can be awarded not only for the pain caused by the loss of an “être cher” („a loved one‟) but also for the pain caused by witnessing such a person suffers or so called “dommage moral par ricochet294”. Some scholars criticize that it would lead to an endless lawsuits295. The condition is that such third party has to have some kinds of close relation with primary victim which are not limited to the relation by marriage or

287 Julio Alberto Diaz, supra note 204, at 108. 288 Id. 289 French Civil Code § 1382 (“Tout fait quelconque de l‟homme, qui cause à autrui un dommage, oblige celui par la faute duquel il est arrivé à le réparer.”). 290 Michel Cannarsa, Compensation for Personal Injury in France, research and teaching assistant universitỳ Jean Moulin-Lyon 3 (France and Università del Piemonte Orientale (Italia), available at www.docstoc.com and http://www.docstoc.com/docs/3830543/Compensation-for-Personal-Injury-in-France-by-Michel-Cannarsa-Researchp3. 291 Id. at 17. 292 French Civil Code §§ 1382-1383 (A fault may result either from the commission of an act or from the omission to perform an act.); As under French law, every fault that cause injury to others can be recoverable only that the elements required is passé which are fault, injury and the causal link between the two cited in Kathie D. Claret, Anthony Paronneau, France, The International Comparative Legal Guide to: Product Liability 2006: A Practical Insight to Cross-Border Product Liability Work 136, Global Legal Group Ltd., p. 136. 293 Julio Alberto Diaz, supra note 204, at 108. 294 Scottish Law Commission, Discussion Paper no. 120, supra note 146, at 54. 295 See P Malaurie& L Ayne‟s, Droit Civil: Les Obligations, ¶ 247 cited in Scottish Law Commission, Discussion Paper no. 120, supra note 146, at 54.

57

descendent296. In this regard, damages for non-pecuniary loss which are recoverable under French law are divided into 3 headings297. 1) “pretium doloris” or pain and suffering, whether mental or physical, in the past and future which is likely to continue in the foreseeable future298. Pain and suffering shall include fright, mental reaction, fear, future incapacity299, upset felt when an animal is killed300 and upset felt when surrounded by noisy environment301. In addition, damages in case of coma, vegetative condition and brain damage are recoverable even the injured person is unconscious because it is presumed that gravity of the vegetative condition state in itself gives rise to real injury302. 2) “préjudice d‟agr ment” (impaired enjoyment of life or loss of amenities) resulted from the loss of quality of life303 including “dommage moral”304 whether temporary or permanent impairment305 e.g., damages for spoiled holiday306, loss of life expectation in case of HIV blood transfusion307, loss of earning capacity, loss of congenial employment and loss of housekeeping ability. The Court has a

296 Cees Van Dam, European Tort Law, (Oxford: Oxford University Press, 2006), p. 330. 297 Raymond Youngs, supra note 197, at 322. 298 Michel Cannarsa, supra note 290, at 16. 299 Civ. 2e, 5 January 1994, J.C.P. 1994.IV.585 cited in Michel Cannarsa, supra note 290, at 16 300 Civ. 2e, 16 January 1962, D. 1962, 199, commentary by Rodière; J.C.P. 1962.II.12557, commentary by ESMEIN (Lunus decision, concerning the killing of a horse);TGI Caen, 30 October 1962, D. 1963, p. 92; Rouen, 16 September 1992, D. 1993, p. 353, commentary by Marguénaud (killing of a dog) cited in Michel Cannarsa, supra note 290, at 19. 301 Civ. 2e, 14 December 1966, D. 1967, 197; Civ. 3e, 3 November 1977, D. 1978, 434, commentary by Caballero; Civ. 3e, 24 October 1990, J.C.P. 1990.IV.417 cited in Michel Cannarsa, supra note 290, at 19. 302 Y. Lambert-Faivre, Droit du Dommage Corporal, n° 150; M. Le Roy, L’évaluation du Préjudice Corporel, n° 140 cited in Michel Cannarsa, supra note 290, at 20. 303 Civ. 2e, 19 March 1997, D. 1998, Jur., 59, commentary by Y. Lambert-Faivre cited in Michel Cannarsa, supra note 290, at 17. 304 Crim. 5 March 1985, Bull. crim. N° 105, 1°, p. 275 cited in Michel Cannarsa, supra note 290, at 17. 305 Civ. 2e, 30 September 1998 (two decisions), R.C.A. 1998, n° 373 and 379 (“Les troubles physiologiques subis par la victime au cours de la p riode d‟incapacit temporaire constituent, indépendamment de la perte de revenus qui peut en résulter, un préjudice corporel de caractère objectif dont les juges ne peuvent refuser la r paration”) 125 M. Guidoni, Le Préjudice Esthétique, thèse, Paris I, 1977; L. Melennec, L’indemnisation du Préjudice Esthétique, Gaz. Pal., 5 nov. 1976, p. 2 cited in Michel Cannarsa, supra note 290, at 17. 306 Michel Cannarsa, supra note 290, at 19. 307 Y. Lambert-Faivre, Principes D’indemnisation des Victimes Post-Transfusionnelles du SIDA, D. 1993, chr. p. 67; I. Bessières-Roques, Le Préudice Spécifique de Contamination; Un Nouveau Préjudice?, R.F.D.C. 1993, p. 79 ; Civ. 1re, 1 February 1995, R.C.A. 1995, n° 126, R.T.D. civ. 1995, p. 626, commentary by Jourdain. cited in Michel Cannarsa, supra note 290, at 18; §§ 1382-1383 of the French Civil Code (A fault may result either from the commission of an act or from the omission to perform an act); As under French law, every fault that cause injury to others can be recoverable only that the elements required is passé which are fault, injury and the causal link between the two cited in Kathie D. Claret, Anthony Paronneau, France, (2006), The International Comparative Legal Guide to: Product Liability 2006: A Practical Insight to Cross-Border Product Liability Work 136, Global Legal Group Ltd., at 136.

58

broad conception of non-pecuniary loss, as the diminution of the pleasure of life, caused by the impossibility or the difficulty of participating in normal activities308 and; 3) “perte d‟affection” (suffering from the death of the deceased or injury of the injured person) including all pain and suffering, loss of amenity and loss of life in case of injury to life. These damages are granted since 1976309. However, damages will be granted as long as it arises from a certain, direct and personal damage to the plaintiff310. Notice that these aesthetic damage may in effect constitute a separate injury in itself of some importance e.g., leading to loss of career or cause the victim to avoid social occasions. 3.3.1.1.2 Damages for Non-Pecuniary Loss that are not Recoverable All matters that amount to a disturbance in one‟s living conditions may be subjected to compensation claimed under section 1382 as long as it is direct and immediate consequence of the incident311. French law does not limit the right to claim for damages312. 3.3.1.2 Product Liability The law of 98-389 of 19 May 1998 is the transposition of the directive no 85/374/CEE dated 25 July 1985 (EC Directive) into domestic law313 by inserting the provisions concerning product liability into its Civil Code314 i.e., article 1386-1 through 1386-18 which established a new ground of liability called „strict liability315‟

308 Paris, 2 December 1977, D. 1978, p. 285, commentary by Y. Lambert-Faivre cited in Michel Cannarsa, supra note 290, at 18. 309 Simon Deakin, Angus Johnston and Basil Markesinis, supra note 115. 310 Michel Cannarsa, supra note 290, at 11. 311 Id. at 17. 312 Kathie D. Claret, Anthony Paronneau, France, (2006), The International Comparative Legal Guide to: Product Liability 2006: A Practical Insight to Cross-Border Product Liability Work 136, Global Legal Group Ltd., at 143. 313 François Xavier Testu et Jean-Hubert Moitry, La Responsabilite du Fait des Produits Defectueux, commentaire de la loi 98-389 du 19 Mai 1998, Avocats assciés a la Cour, p. 1, available at http://www.testu-avocats.com/docs/French%20Product%20Liabi_2006A5.pdf. 314 John Bell Sophie Boyron and Simon Whittaker, Principles of French Law, (2d ed. 2008), Oxford University Press, New York, p. 406. 315 Kathie D. Claret, Anthony Paronneau, supra note 312, at 136; Maddox, Products Liability in Europe, Towards a Regime of Strict Liability, 19 J.W.T.L. 508, 521 (1985) pp. 14-15; Baum, Lothar W., Forum Shopping in Products Liability Actions: A Comparative Between the United States, France and Germany, (LLM Theses and essays. Paper 117, University of Georgia School of Law), available at http://digitalcommons.law.uga.edu/stu_llm/117 (1988).

59

in which the principle is rooted from the notion of “res ipsa loquitur” (things speak for itself)316. The main article providing damages caused by the defective product is article 1386-2: “Les dispositions du présent titre s‟appliquent à la réparation du dommage qui résulte d‟une atteinte à la personne ou à un bien autre que le produit défectueux lui même317.” This article has been inspired by the directive article 9 318 in which defines the type of damage that recoverable. However, the directive does not expressly say that damages for non-pecuniary loss are recoverable, instead it left to each member‟s domestic law whether it would extend the scope of protection to those of non-pecuniary loss or not319. For France, article 1386-2 of French Civil Code provides the right to recover damages for any damage caused to a person by the unsafe product (“dommage qui résulte d‟une atteinte à la personne”) without any restriction to the type of damage that would be recoverable. These recoverable losses might be categorized as 1) pecuniary loss caused to a person e.g., loss of income; 2) non-pecuniary loss caused to a person i.e., all that out of pecuniary definition320; 3) loss by the disappearance of the price, for the victim of the product and; 4) loss of the victim by ricochet (third person), since this solution is restrainted by the Supreme Court (“Cour de Cassation”) on the basis of the directive itself321.

316 Available at http://www.buis-avocat.fr/droit-de-la-responsilite-des. 317 François Xavier Testu et Jean-Hubert Moitry, supra note 313, at 4; Responsibilité du fait des Produits Défectueux en France, available at http://fr.wikipedia.ord/wiki/responsabilit%C3%A9_du_fait_des_produits_d%C3%A9fectueux_en_France; François Xavier Testu et Jean-Hubert Moitry, supra note 242, at 6, 32 (However, CJCE accuses that France cannot integrate the EC Directive correctly. Because Art. 1386-15 para. 1 which states “les clauses qui visent à écarter ou à limiter la reponsilibité du fait des produits défectueux sont interdites et r put es non crites” of France does not import the clause that determine the minimum amount of the claim in case of injury to property (minimum of 500 Euros) because it does not want to discourage the small litigant. From this, it can be inferred that the EC Directive is not regarded as the minimum standard of protection instead, it is regarded as a standard itself i.e., the country may not put a stronger liability on the producer. This is at least the fear which various consumer protection groups already complaint of. ). 318 Directive Art. 9 (For the purpose of article 1 damage means: (a) damage caused by death or by personal injuries; (b) damage to, or destruction of, any item of property other than the defective product itself, with a lower threshold of 500 ECU, provided that the item of property: (i) is of a type ordinarily intended for private use or consumption, and (ii) was used by the injured person mainly for his own private use or consumption. (iii) This article shall be without prejudice to national provisions relating to non-material damage.) and article 1 (The producer shall be liable for damage caused by a defect in his product.). 319 François Xavier Testu et Jean-Hubert Moitry, supra note 313, at 4. 320 Id. 321 Id.

60

The scope of non-pecuniary loss includes “dommage moral” caused by physical and mental suffering and also loss of enjoyment of life322. It includes even unforeseeable economic loss of commercial purchaser, loss of opportunity or so called in French “perte d‟une chance”323. The claimant only has to prove that such damage is certain. In case of death, the heirs can claim damages for “préjudice morale” („loss of a loved one‟) and “préjudice material”(„loss of maintenance‟)324. In addition, article 1386-4 provides the definition of the word „defective‟ which is interpreted as „the product is defective when it does not provide the safety which a person is entitled legitimately to respect‟. In claiming damages for damage that resulted from an unsafe product, the plaintiff has to prove that damage is the outcome of the defective product and, that there is a link between the defect and the damage as per article 1386-9. Since the plaintiff does not have to prove the fault of the business operators, the ground of liability shifts from fault based liability to special regime of liability called „strict liability.‟ Not only it can be regarded as the strict liability, it is also special regardless of the pre-existing contractual duty that is to say, the suit on product liability can be claimed without having to specify whether it is claimed under contractual relation or tortious relation325 ; implemented by the principle from the EC Directive article 13326.

3.3.1.3 Method of Calculation Damages for non-pecuniary loss are usually awarded in a lump sum but divided into categories of losses327 i.e., “pretium doloris”, loss of amenities and bereavement as clarified above in 3.3.1.1.1. In principle of compensation, the victim shall be placed in the same position he would have been in had the accident not occurred or the “principe de réparation intégrale”328 or known as the principle of full compensation. French law will

322 See D.Tebbens, International Products Liability 146,1979, at 84, 96 cited in Baum, Lothar W., supra note 315. 323 Baum, Lothar W., supra note 315, at 197 (For example, where someone is unable, because of his injuries, to obtain a better job, when he prior has the necessary qualifications). 324 De Leyssac, France, Product Liability in Europe, A Collection of Reports Prepared for the Conference on Product Liability in Europe held in Amsterdam on 25 and 26 September 1975, (1975), at 65 cited in Baum, Lothar W., supra note 315. 325 Kathie D. Claret, Anthony Paronneau, supra note 312, at 137. 326 Directive Art. 13 (This directive shall not affect any rights which an injured person may have according to the rules of the law of contractual or non-contractual liability or a special liability system existing at the moment when this directive is notified.). 327 Michel Cannarsa, supra note 290, at 17. 328 Civ.2e, 28 oct 1954, J.C.P. 1955. II. 8765 cited in Michel Cannarsa, supra note 290, at 12.

61

compensate for nothing but the real injury329 thus no punitive damages are assessable330. Also, there is no limited amount of damages claimed except having specific provision saying so331. In specific, damages for non-pecuniary loss, since it is difficult to assess, Judges must exercise their discretion332, determining the amount of damages according to the principle of full compensation333 and equality. The compensation may be considered as satisfactory and adequate334 one but it cannot be determined by reference to the social, cultural or financial status of the victim335. Yet, Judges‟ discretion are subject to the amount of the plaintiff‟s claim336. By seeking to comply with the principle of full compensation and equality, French law, during the early 1980s, has found the method of calculation called “calcu au point” used to assess the amount of damages for non-pecuniary losses arising out of personal injuries cases. This method was considered by Italian and Belgian Court academic as a model to be copied and imported337. This method has scales which are considered to be damages determining device. Medical expert applies the scale representing seriousness of an injury (loss suffered by the victim) which is graduated from 0-7. This scale does not take sex and age into account338. However, according to the procedural law, the Court is free not to appoint medical expert (Article 263 of the Nouveau Code de Procédure civile339) but

329 Y. Lambert-Fatvre, Droit du Dommage Corporal, 4th ed., Dalloz, 2000, n๐87 cited in Michel Cannarsa, supra note 290, at 12. 330 Baum, Lothar W., supra note 315, at 85. 331 Kathie D. Claret, Anthony Paronneau, supra note 312, at 143. 332 T. Ivainer, Le Pouvoir Souverain du Juge dans L’appréciation des Indemnités, D.S. 1972, chr. 1; Civ. 2e, 20 December 1966, D. 1967, 669, commentary by M. LE ROY ;Civ. 2e, 20 February 1980, Bull. civ. II, n° 40, p. 29; Civ. 1re, 16 July 1991, Bull. civ. n° 249, p. 164; Civ. 2e, 8 June 1994, J.C.P. 1994. IV. 2016, commentary by Viney cited in Michel Cannarsa, supra note 290, at 12. 333 The recent implement of product liability directive is a good example for showing the right to full compensation by not setting the ceiling of the amount of damages recoverable cited in Michel Cannarsa, supra note 290, at 12-13. 334 Michel Cannarsa, supra note 290, at 12. 335 Id. at 21. 336 Id. at 20. 337 Basil Markesinis, Michael Coester, Guido Alpa and Augustus Ullstein, supra note 51, at 19; Marco Bona, Towards the ‘Europeanization’ of Personal Injury Compensation: Contexts, Tools, Projects, Materials and Cases on Personal Injury Approximation in Europe, Personal Injury Compensation in Europe, (2003), Kluwer, available at www.jus.unitn.it/cardozo/Review/2005/Bona1.pdf. 338 Y. Lambert-Faivre, Droit du Dommage Corporal, p. 144; M Le Roy, L’évaluation du préjudice corporel, p. 150 (However, the Courts do take these factors into account.) cited in Michel Cannarsa, supra note 290, at 17. 339 Id. at 13.

62

it is more common today that they appoint one340. Then, there is another scale which is the scale of “pretium doloris”. This scale will be differed by degrees of pain (very light, light, moderate, medium, quite severe, severe, and very severe)341. Then the scores will be multiplied by the monetary value created by the Court. (see also supra 3.2.2.3) In case of multiple injuries, an assessment will first be made in relation to the most serious injury, to which a percentage of incapacity will be ascribed. The percentage of incapacity of other injuries will then be calculated by reference to the remaining capacity342. In all cases, the method shall not bind the Court in the finalized sum of damages343.

340 C. Fournier and M. Oliveir, L’expertise du Dommage Corporel, R.F.D.C. 1989, p. 5; C. Rousseau, Le respect du contradictoire dans l’expertise, R.F.D.C. 1991, p. 365; E; Attamian, L’évaluation du Dommage Corporel: Une Spécialité Médicale, R.F.D.C. 1992, p. 455 cited in Michel Cannarsa, supra note 290, at 13. 341 See the scale in Y. Lambert-Faivre, Droit du Dommage Corporal, p. 271; in M.L Le Roy, L’évaluation du Préjudice Corporal, p. 78 cited in Michel Cannarsa, supra note 290, at 16. 342 Michel Cannarsa, supra note 290, at 22. 343 Giovanni Comand , supra note 230, at 17. (Cass, 2e civ., Feb 1, 1995, Bull. Civ. II, No.42).

63

CHAPTER 4

ANALYSIS OF THAI LAWS

Before entering into compensation part, one must first determine whether an act is considered to be tortious act or not. Under Thai tort law, the section which deals with this evaluation is section 420 of the TCCC which provides:

„A person who, willfully or negligently, unlawfully injures the life, body,

health, liberty, property or any right of another person, is said to commit a wrongful act and is bound to make compensation therefor.‟

This section indicates 4 requirements for an act in order to be qualified as a

tortious act. First, the alleged person must act intentionally or negligently; Second, such act must cause damage to any right of others (life, body, health, liberty, property or any right of another person); Third, the alleged person must act without any legal right to act (unlawful) and; Fourth, the act and the damage are relevance (causation).

After an act is qualified as a tort, the Court is empowered to order

compensation (state of compensation). According to the principle of full compensation, the injured person shall be compensated, either by money or other specific performances or any other measures, as much as it could bring the injured person back to the position had tortious act not occurred. In other word, law will not allow compensation just because there is a tortious act, except for nominal damages; It would grant damages only if such tortious act caused the injured person loss or damage. As mentioned in the preliminary information part that damages can be grouped into damages for pecuniary loss and damages for non-pecuniary loss. That is because the loss resulted from a tortious act to a person can bring about both pecuniary loss and non-pecuniary loss i.e., loss that cannot be converted into terms of money e.g., loss of amenity and loss of ability to do whatever the injured person was able to do.

In this regard, the author would like to draw a „damages for non-pecuniary

loss‟ chart as follow:

64

Damages for Non-Pecuniary Loss As we have studied in Chapter 2, Thai Court has no reluctance to grant

damages for non-pecuniary loss in case where it is accompanied with injury to body, health and liberty as per section 446 of the TCCC (Line 2). Outside the scope of such strict interpretation, the Court hardly grants damages for non-pecuniary loss (Line 1). This interpretation has brought about problems. These problems are: 4.1 The Problem Concerning Recovering Damages for Pure Non-Pecuniary Loss under Thai Tort Laws in Case of Living Claimants

4.1.1 Regarding Recovering Damages for Pure Non-Pecuniary Loss under the Thai Civil and Commercial Code

According to section 420 of the TCCC, the person who claims for tortious act must prove that there is damage against his right guaranteed by the law. What rights are guaranteed by the law? The answer is found in section 420 which provides:

„A person who, willfully or negligently, unlawfully injures the life, body,

health, liberty, property or any right of another person, is said to commit a wrongful act and is bound to make compensation therefor.‟

65

As literally enacted in section 420, the rights guaranteed by the law are the right to live without any injury to his life, body, health, liberty, property or any right of his/her.

Whether the Court is able to compensate pure non-pecuniary loss, the Court must first seek to identify whether pure non-pecuniary loss qualifies as a state of damage or not. If not, the Court must apply section 446 in order to grant damages for non-pecuniary loss as a state of compensation. But in this interpretation, damages for pure non-pecuniary loss are not recoverable because they are not accompanied with injury to body, health or liberty of the injured person. This question we must concern here is about the interpretation of „any right of another person‟ literally provided within section 420 of the TCCC.

With all respect to the translation of section 420344, the wording „any right of

another person‟ in English translation does not seem to show any ambiguous meaning. However, the original wording of section 420345 can lead to an ambiguous meaning. Seeing that one side of scholars interprets “สทธอยางหนงอยางใด” (any right of another person)346 strictly, that it shall mean only „absolute rights‟347 guaranteed by the law because the list of rights protected under section 420 are all kind of absolute rights, for instance privacy right and the right to maintain human dignity and personal integrity. The other side of scholars, in contrast, interprets „any right of another person‟ as any right of a person existing and guaranteed by any law348. It need not be only absolute rights. For example Supreme Court decision no 152/2523 showed that the contractual right (a kind of relative right) can also constitute the right to claim compensation under tort system349.

According to the latter interpretation, section 420 will make section 446

useless because injury to pure non-pecuniary loss will be regarded as „any right of another person‟ that falls into the scope of the term „any right of another person‟ as a

344 Translated in ยงยทธ วรยายทธงกร, ประมวลกฎหมายแพงและพาณชย แปลไทย-องกฤษ พ.ศ. 2551, (กรงเทพฯ: ส านกพมพสตรไพศาล), 2551(Yongyud Viriyayudthungkul, The Civil and Commercial Code Translated Thai-English Update 2008). 345 TCCC § 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 therefor.) (ผใดจงใจหรอประมาทเลนเลอ ท าตอบคคลอนโดยผดกฎหมายใหเขาเสยหายถงแกชวตกด แกรางกายกด อนามยกด เสรภาพกด ทรพยสนหรอสทธอยางหนงอยางใดกด ทานวาผนนท าละเมด จ าตองใชคาสนไหมทดแทนเพอการนน). 346 With all respect to the translation, the author finds that it should be interpreted as „one of the rights‟ 347 อนนต จนทรโอภากร, โครงสรางพนฐานกฎหมายลกษณะละเมด, รวมบทความในโอกาสครบรอบ 60 ป ดร ปรด เกษมทรพย, 2531, หนา 101-102 (Anan Chantara-opakorn, Foundation of Tort Law, Essays in Honour of Preedee Kasemsup, 1988, pp. 101-102). 348 Prajuck Puttisombaed, supra note 89, at 61(Damage to any rights beyond those specifically provided in the section 420 i.e., damage to moral and damage to mental state.); See Supreme Court decision no. 124/2487 (Damage to family right: The fiyoncé/husband can claim compensation from another man who makes love/rapes his wife/ fiyoncé. (§§ 1445-6)). 349 See Supreme Court decision no. 152/2523 (The defendant and his fellows intentionally made a strike blockage the plane and forced the airline to cancel the plaintiff‟s contract, otherwise they will not let the plane take off. The act was unlawful and caused the plaintiff damage thus, it was a tortuous act. The defendant must compensate the plaintiff even the plaintiff was previously have deficit.), available at http://www.siamjurist.com/forums/2297.html.

66

state of damage which shall be subjected to compensation under section 438 of the TCCC.

For the first interpretation, that „any right of another person‟ includes only

„absolute rights‟ of a person. As „absolute rights‟ are the rights guaranteed by the laws in which no one could argue against such right therefore we must refer to the law that is the fundamental one and cannot be revoked by other laws. Referring to the Constitution of the Kingdom of Thailand B.E. 2550 (the Constitution), the Constitution affirms many heading of rights for instance, right to be treated equality (section 30350), right to life and body(section 32351), family/fame and privacy right, and property right (section 35352). Moreover, the Constitution establishes its core and principles in section 4 that guarantees the rights, freedom, equality and human dignity353. According to the Constitution, „any right of another person‟ in the scope of „absolute right‟ must include „any right a human was born with‟ or „right to human integrity‟ or „right to human dignity‟. Considering „human dignity‟ in specific, a human being is composed of his physical being, psychiatric being and mental being. Therefore, referring to the National Health Act B.E. 2550 section 3 „health‟ means the state of human being which is perfect in physical, mental, spiritual, and social aspects, all of which are holistic in balance; „spiritual‟ means the comprehensive knowledge and conscience leading to kindness and sympathy; … and section 5 „ a person shall enjoy the right to live in the healthy environment and environmental conditions.‟, psychiatric injury/mental injury should be included in the definition of the terms „absolute right‟ and thus included in the definition of the term „any right of another person‟354 which makes a person who infringing this kind of right to be subjected to

350 Thai Constitution B.E. 2550 § 30 (All persons are equal before the law and shall enjoy equal protection under the law. Men and women shall enjoy equal rights. Unjust discrimination against a person on the grounds of the difference in origin, race, language, sex, age, disability, physical or health condition, personal status, economic or social standing, religious belief, education or constitutionally political view, shall not be permitted. Measures determined by the State in order to eliminate obstacle to or to promote persons‟ ability to exercise their rights and liberties as other persons shall not be deemed as unjust discrimination under paragraph three.). 351 Thai Constitution B.E. 2550 § 32 (A person shall enjoy the right and liberty in his life and person. A torture, brutal act or punishment by a cruel or inhumane means shall not be made; provided that punishment under judgments of the Courts or by virtue of the law shall not be deemed the punishment by a cruel or inhumane means under this paragraph. Arrest and detention of person shall not be made except by order or warrant issued by the Courts or there is a ground as provided by the law. Search of person or act affecting the right and liberty under paragraph one shall not be made except by virtue of the law. In the case where there is an act affecting right and liberty under paragraph one, the injured person, public prosecutor or any person acting for the benefit of the injured person shall have the right to bring lawsuit to the Courts so as to stop or nullify such act and to impose appropriate measure to alleviate damage occurred therefrom.). 352 Thai Constitution B.E. 2550 § 35 (A person‟s family rights, dignity, reputation and the right of privacy shall be protected. The assertion or circulation of a statement or picture in any manner whatsoever to the public, which violates or affects a person‟s family rights, dignity, reputation or the right of privacy, shall not be made except for the case which is beneficial to the public. Personal data of a person shall be protected from the seeking of unlawful benefit as provided by the law.). 353 Thai Constitution B.E. 2550 § 4 (The human dignity, right, liberty and equality of the people shall be protected.). 354 กตตบด, นานาสาระ : ขอสงเกตจากการบรรยายละเมด ๔ (Kittibordee, Misc: Note from Tort Lecture 4), available at http://dean-lawkku.com/?p=1945.

67

compensation under section 438 TCCC since psychiatric injury/mental injury qualifies as a state of damage under section 420 of the TCCC. Nonetheless, emotions are not one of the absolute rights that are guaranteed by section 420.

However, as we have studied from the Supreme Court decisions in Chapter 2, the Court will not apply section 438, and his discretionary power, to grant damages for pure non-pecuniary loss instead, the Court applies specific law that specifically mentioned about damages for non-pecuniary loss i.e., section 446 of the TCCC in order to grant damages for non-pecuniary loss355.

Section 446 paragraph 1 of the TCCC provides:

„In case of injury to the body or health of another, or in the case of deprivation

of liberty, the injured person may also claim compensation for the damage which is not a pecuniary loss. The claim is not transferable, and does not pass to the heirs, unless it has been acknowledged by contract, or an action on it has been commenced.‟

Section 446 literally suggests that the claimant is able to claim damages for non-pecuniary loss in case where it is accompanied with injury to body, health or liberty. Therefore, damages for non-pecuniary loss except in case of injury to body, health and liberty (line 2 of „damages for non-pecuniary loss‟ chart) will not be recoverable. According to Thai Court‟s approach studied in Chapter 2, Thai Court will grant damages for pure non-pecuniary loss under section 446 only if the Court views that such pure non-pecuniary loss is tantamount to injury to body or injury to health. In such event, an expressed physical injury as an element to recover damages for non-pecuniary loss is not needed. For instance, Supreme Court decision no. 626/2493 regarded such madness as injury to body because it disturbs the injured person‟s nervous system356. This view is similar to common law lawyers who regard psychiatric illness as an injury to body. Another example is Supreme Court decision no.392-393/2461 which held that nuisance is a kind of injury to health as it made the plaintiff much less comfortable than normal357. The Court regards nuisance as injury to health that disturbs one‟s well-being. This approach is similar to civil law lawyers who regard psychiatric illness as injury to health. In these cases, the Court will not indicate that these are pure non-pecuniary losses, the Court will instead indicate that these are injury to body/health that bring about the right to claim damages for non-pecuniary loss under section 446 of the TCCC. In relation to such approach, the Court does not award any damages for pure non-pecuniary loss if it is regarded to be only emotions especially sadness from losing a love one358 (This shall be further discussed

355 The Court was taking this approach because there is not enough reason to favor human‟s emotions. “According to the nature of human, this kind of loss may be more severe than property loss itself however, there is not enough reason for the law to protect emotions …” (Professor Pod Pudsapakom (p. 167)) cited in Kittibordee, supra note 354.

356 See Supreme Court decision no. 626/2493, supra note 71.

357 See Supreme Court decision no. 392-393/2461, supra note 105.

68

in the next part of this Chapter 4). Note also that another problem relating to this problem is that the TCCC, in general, only provides compensation to the injured person thus only the injured person is able to claim damages for non-pecuniary loss under section 446 i.e., there is no concept of secondary victim in the TCCC yet.

This present approach cannot provide full compensation to the victims in

reality where pure non-pecuniary loss exists for example the case of McLoughlin v O’Brain „the claimant was not in the scene of the accident but suffered psychiatric illness after seeing her family admitted in the hospital after the accident‟. If this case was happened in Thailand, the claimant may not be able to claim damages for her psychiatric illness because (1) damage to mental state alone does not qualify as a state of damage under section 420 and it is not sure whether the Court will regarded this kind of injury as injury to body/health or not; (2) this damage to mental state is not accompanied with injury to body, health or liberty (according to Thai Court‟s present approach, except where non-pecuniary loss accompanied with injury to body, health or liberty, the injured person has no right to claim compensation for losses that is not pecuniary loss) and; (3) she was not the victim of the accident (according to section 446 of the TCCC, only the injured person will be able to claim damages for non-pecuniary loss. Moreover, Thai law does not clearly have the concept of secondary victim. However, the victim can claim damages for loss of legal support as damages for her pecuniary loss. In brief, the study in Chapter 2 reveals that (1) the Court recognizes non-pecuniary loss that amounts to injury to body/health as a state of compensation if it is equivalent to damage to a well-being of a person or obviously impairs a person‟s being; (2) Thai Court strictly deals damages for non-pecuniary loss with section 446 of the TCCC only;

Yet, after the new Liability for Damages Arising from Unsafe Products Act enacted, there is one case showing that the Court is trying to move away from the strict interpretation as seen in Dr. Jermsak‟s case, that claimed for his non-pecuniary loss. This case was decided in the Magistrate Court, the first case won for damages for pure non-pecuniary loss, a Consumer black case no. 1/2551359 „the claimant is successful in claiming damages for pure non-pecuniary loss as he suffered nervousness during his flight because the airline service omitted to search by the defective detect automatic machine according to the airline regulations‟. With all due respect, the author dissents from the decision because the Liability for Damages Arising from Unsafe Products Act was designed to apply with the case where damage resulted from the use of an unsafe product; not the service. Therefore, we must consider if such nervousness resulted from the service is protected as a state of damage under section 420 of the TCCC or not. The study of this early Chapter together with Chapter 2 show that the Court does not regard pure non-pecuniary loss, in this case nervousness, as a state of damage under section 420 therefore requesting 358 See Supreme Court decision no. 1742/2499 (Damages for non-pecuniary loss are not recoverable in case of death.). 359 Manager Newspaper Report, supra note 5.

69

damages for such nervousness caused from the service must be claimed under section 446 as a state of compensation. Still, according to the strict interpretation of section 446 taking by Thai Court, the claimant will not be able to claim damages for non-pecuniary loss under section 446 as well because this nervous should not be regarded as injury to body/health as it does not affect materially well-being of a person and it does not obviously impair one‟s being. This loss should be regarded as emotions that are not qualified as an absolute right under section 420 of the TCCC. The claimant in this case won in the Magistrate Court because the Court applies the definition of damage to mental state in the Liability for Damages Arising from Unsafe Products Act to the case. However, it may not be right to do so. (see infra 4.1.2.)

Nevertheless, if the interpretation is not certain it will be an obstacle for the

claimant to claim damages for non-pecuniary loss because section 142 paragraph 1 of the Thai Civil Procedure Code (the TCPC) which provides „A judgment or order of a Court disposing of a case shall decide on every claim in the plaint, but no judgment or order shall be given for anything in excess of or not included in such plaint, …‟ Not only it is hard for the plaintiff to make a request concerning damages for non-pecuniary loss but also to request for its appropriate amount. Subject to this article, it is the claimant‟s duty to do as such since the Judge cannot rule in favor more than what the claimant has requested in the motion.

4.1.2 Regarding Recovering Damages for Damage to Mental State under the Liability for Damages Arising from Unsafe Products Act.

The Liability for Damages Arising from Unsafe Products Act gives the

definition of „damage to mental state‟ in order to guide the Court of the new interpretation for section 446 of the TCCC, in other words, moving away from the old strict interpretation. In fact, as intended, section 446 allows recovery of damages for non-pecuniary loss but Thai Court has never granted damages for non-pecuniary loss if the loss was not clearly resulted from injury to body, health or liberty. The standard reason the Court uses to deny recovery of such damages is seen in a familiar phrase stated „no statutory law provides compensation for such loss i.e., pure non-pecuniary loss‟. This made the merit of section 446 devalues. Then, the Liability for Damages Arising from Unsafe Products Act has defined the definition of „damage to mental state‟ in order to ensure full compensation of the victims that damages for damage to mental state are recoverable. Nevertheless, The Liability for Damages Arising from Unsafe Products Act section 11(1) in which allows the recovery of damages for non-pecuniary loss has two ambiguous meaning. Thus, what should be the interpretation of section 11(1)?

4.1.2.1 The Status of Damage to Mental State under the Liability for Damages Arising from Unsafe Products Act.

Section 446 paragraph 1 of the TCCC reads „In case of injury to the body or

health of another, or in the case of deprivation of liberty, the injured person may also

70

claim compensation for the damage which is not a pecuniary loss. The claim is not transferable, and does not pass to the heirs, unless it has been acknowledges by contract, or an action on it has been commenced.‟

This section suggests that non-pecuniary loss can be claimed under the TCCC

if such non-pecuniary loss has accompanied with the injury to body, health or liberty. That is to say, damages for pure non-pecuniary loss cannot be claimed360. In fact, the court tends not to grant damages for pure non-pecuniary loss by claiming that no law provides as such361. This is because Thai Court does not interpret it as a head of damage protected under section 420. That is why the Liability for Damages Arising from Unsafe Products Act section 4 has specifically defined the term „damage to mental state‟ as another head of damage along with its definition according to the Council of the State explanation; the purpose of defining damage to mental state is to make this type of damage be absolutely recognized in which to guide the Court of the enforcement and to grant compensation for this kind of loss.362

Section 4 of the Liability for Damages Arising from Unsafe Products Act

provides: „Damage‟ means damage arising from an unsafe product, regardless of

whether the damage is to life, body, health, hygiene, mental state, or assets. This shall not include damage to the unsafe product.

„Damage to mental state‟ means pain, suffering, fear, anxiety, sorrow, shame

or other similar mental damage. From the explanation of the Council of the State, it can be inferred that the

„status of damage to mental state‟ in section 4 of the Liability for Damages Arising from Unsafe Products Act is similar to section 420 of the TCCC because the reason for including „damage to mental state‟ within the definition of the term „damage‟ is to guaranteed that „damage to mental state‟ shall be recognized and entitle to compensation. But the intention might not be accomplished since section 4 only provides definition and separately enacted section11 (1), „damage to mental state‟ in section 4 does not constitute a „status of damage‟ thus, does not constitute the right to claim damages for damage to mental state in itself. Hence, whether „damage to mental state‟ in the Liability for Damages Arising from Unsafe Products Act is recoverable or not, the claimant has to refer to section11(1) of the Liability for Damages Arising from Unsafe Products Act. It then raises another similar question whether „damages for damage to mental state‟ in section 11(1) of the Liability for Damages Arising from Unsafe Products Act has the same status as „damages for non-pecuniary loss‟ in

360 According to the Supreme Court decisions that we have observed in chapter 2, it can be inferred that non-pecuniary loss is only recognized under section 446 since the Court tends to not grant damages for pure non-pecuniary losses under other sections. 361 The Council of State’s Minute, supra note 4. 362 Id.

71

section 446 of the TCCC or does it share the same status with „any right of another person‟ in section 420 of the TCCC ?

(i) if the status is similar to section 420 of the TCCC, it will mean that

„damage to mental state‟ is regarded as a „state of damage‟ protected under the Liability for Damages Arising from Unsafe Products Act therefore even if there occurs only pure-non-pecuniary loss, the claimant can claim damages for non-pecuniary loss as per section 11(1) of the Liability for Damages Arising from Unsafe Products Act itself.

(ii) However, from the above mentioned interpretation, section 11(1) of the

Liability for Damages Arising from Unsafe Products Act literally reads: „The court shall be authorized to demand compensation for damages based on

the following, in addition to compensation for violations of the Civil and Commercial Code:

(1) Compensation for damage to mental health, as well as body, health, and

hygiene of the damaged party. In the event the damaged party has died, the damage party‟s husband, wife, children, or descendants shall have rights to compensation for the damage occurring to mental health.‟

With all respect to the translation of section 11(1) of the Liability for Damages Arising from Unsafe Products Act363, the original wordings of section11 (1) has defined that the Court is entitled to grant damages for damage to mental state if damage to mental state is the consequence result of damage to body, health or hygiene of the injured person364. This suggests that section 11(1) will grant „damages for damage to mental state‟ only if it is a consequence result of damage to body health or hygiene. In fact, it is the same interpretation of section 446 of the TCCC365. That is to say, the „status of damage to mental state‟ is the same as the „status of damages for non-pecuniary loss‟ in section 446 of the TCCC i.e., „damages for damage to mental state‟ is regarded as a „state of compensation‟. From this conclusion, the gap in claiming damages for pure non-pecuniary loss remains. To be exact, „damages for damage to mental state‟ can be claimed only if it complies with the conditions in section 11(1) of the Liability for Damages Arising from Unsafe Products Act meaning

363 Transalted in http://www.thailaws.com and http://www.thailawonline.com/fr/autres/consumer-law/219-liability-for-damages-arising-from-unsafe-products-act-be2551-2008-?format=pdf . 364 Liability for Damages Arising from Unsafe Products Act § 11 (The court shall be authorized to demand compensation for damages based on the following, in addition to compensation for violations of the Civil and Commercial Code: (1) Compensation for damage to mental health, as well as body, health, and hygiene of the damaged party. In the event the damaged party has died, the damage party‟s husband, wife, children, or descendants shall have rights to compensation for the damage occurring to mental health.) (นอกจากคาสนไหมทดแทนเพอละเมดตามทก าหนดไวในประมวลกฎหมายแพงและพาณชย ศาลมอ านาจก าหนดคาสนไหมทดแทนเพอความเสยหายตามหลกเกณฑดงตอไปนดวย (๑) คาเสยหายส าหรบความเสยหายตอจตใจอนเปนผลเนองมาจากความเสยหายตอรางกายสขภาพ หรออนามยของผ เสยหาย และหากผ เสยหายถงแกความตาย สาม ภรยา บพการ หรอผสบสนดานของบคคลนนชอบทจะไดรบคาเสยหายส าหรบความเสยหายตอจตใจ).

365 สมบต พฤฒพงศภค, คาสนไหมทดแทนในคดผบรโภค, (2552), 2 ดลพาห 109, หนา 115 (Compensation according to Consumer Protection Laws, (2009), 2 Dullaphaha109, p. 115).

72

although section 4 of the Liability for Damages Arising from Unsafe Products Act expressly provides „damage to mental state‟ as another head of damage along with its definition, the claimant must refer to section 11(1) as a „state of compensation‟ to claim „damages for damage to mental state‟ only if such „damage to mental state‟ is the consequence result of damage to body, health or hygiene of the claimant. Note also that only the injured person is able to claim „damages for damage to mental state‟ under section 11(1) since section 11(1) does not provide within its section the concept of secondary victim/third person except where the injured person dies, still, there is no indication whether such right is the inheritability right or the right of the person listed therein themselves. This issue shall be further discussed in the next part of this chapter. (The persons listed within section 11(1) of the Liability for Damages Arising from Unsafe Products Act which are the injured person‟s husband, wife, children or descendants hereinafter referred to as „listed-persons‟) 4.1.2.2 The Different Terms Used between the Thai Civil and Commercial Code and the Liability for Damages Arising from Unsafe Products Act.

The survey in Chapter 2 reveals that damages for non-pecuniary loss that are

recoverable under section 446 of the TCCC are those of loss of ability, loss of beauty, loss of good health, loss of good personality, loss of organ, pain and suffering. In the other hand, section 4 of the Liability for Damages Arising from Unsafe Products Act provides that „damage to mental state means pain, suffering, fear, anxiety, sorrow, shame or other similar mental damage.‟ The question is that does this different terms should bring about different interpretation between „damages for non-pecuniary loss‟ and „damages for damage to mental state‟ or not? The answer is not certain because no case has ever brought to the Supreme Court yet366.

Section 11 paragraph 1 states that „in addition to compensation for violations

of the Civil and Commercial Code… the Court is empowered to award damages for damage to mental state…‟ This leads to ambiguous interpretation that section 446 of the TCCC does not include „damage to mental state‟ as its „state of compensation‟ and that „damage to mental state‟ is outside the scope of the protection provided in the TCCC therefore, „damages for damage to mental state‟ in the Liability for Damages Arising from Unsafe Products Act which was enacted to fulfill the gap in TCCC does not accomplish its goal because the Liability for Damages Arising from Unsafe Products Act itself determines as if „damage to mental state‟ is outside the scope of protection under section 446 of the TCCC. And as stated above; the Council of the State enacted the terms „damage to mental state‟ to make this type of damage be absolutely recognized and subjected to compensation. However, section 11 of the Liability for Damages Arising from Unsafe Products Act has been enacted in contrast with its intention. It also leads to the interpretation that „damage to mental state‟ is wider than „damages for non-pecuniary loss‟ without any justification.

366 Id.

73

In trying to identify the definition of non-pecuniary loss that is recoverable under section 446 of the TCCC, we must again refers to the survey in Chapter 2, the author found that damages for non-pecuniary loss which is recoverable under section 446 of the TCCC are losses that materially affect the well-being of a person or obviously impair one‟s being, the damage that cause detriment to the living. The Court always rejects claims which refer to „normal damage to mental state‟ of a person. This is different from the definition of „damage to mental state‟ in the Liability for Damages Arising from Unsafe Products Act.

„Damage to mental state‟ means pain, suffering, fear, anxiety, sorrow, shame

or other similar mental damage.‟ According to the wording in section 4, the Act pays attention to any kind of „damage to mental state‟ without any justification of the level of such damage that might occur. Thus, a normal damage to mental state might be recoverable under the Act including emotions such as fear, sorrow and shame that does not materially or lastly exist. Then, if the intention of the Council of State is to use the definition of the Liability for Damages Arising from Unsafe Products Act as a Guideline to grant „damages for non-pecuniary loss‟ under the TCCC, it must be inferred that the TCCC is ready to grant damages for emotions or „normal damage to mental state‟ as well.

Somehow, the author found that there is an overlapping area between „non-

pecuniary loss‟ in section 446 of the TCCC and the definition of „damage to mental state‟ of the Liability for Damages Arising from Unsafe Products Act e.g., the area of pain and suffering. Then which law should apply to the claim in case of personal injury for pain and suffering occurred from an unsafe product? The principle in Thai law is that special law overrule general law, therefore in such case the Liability for Damages Arising from Unsafe Products Act will have to apply. For other non-pecuniary losses that fall outside the scope of damage to mental state the TCCC section 446 will have to apply in order to claim damages for non-pecuniary loss according to section 14 of the Liability for Damages Arising from Unsafe Products Act which states:

Section 14 of the Liability for Damages Arising from Unsafe Products Act

„The stipulations to the Act shall not deprive the damaged party of his rights to demand compensation based on rights under other laws‟.

This section provides that the injured person has the right to claim damages

under both the TCCC and under the Liability for Damages Arising from Unsafe Products Act which gives no hindrance to the claimant to claim damages under both laws at the same time. But it is worth noticing that, with the old strict interpretation, „damage to mental state‟ provided within section 4 of the Liability for Damages Arising from Unsafe Products Act is wider than non-pecuniary loss in the TCCC except where damages ordered is higher than the ceiling provided within section 11(2) of the Liability for Damages Arising from Unsafe Products Act.

74

4.1.3 Regarding Possible Solutions in order to Bypass Legal Restriction

In order to find possible solutions to these problems, it is noteworthy to identify models of tort and, models of damages for non-pecuniary loss grouped from our previous comparative study. 4.1.3.1 Models in Use 4.1.3.1.1 Models of Tort (i) Unrestricted Plurality

This unrestricted plurality is a regime that provides much diversified range of protection by giving specific provisions for specific circumstances. This regime is mostly found in common law countries, in this study is England. However, as it is a common law system, some of the laws which apply to such specific circumstances will be made by decisions of the Judges, no statutory provisions are necessary except where the law intends to grant damages without extending the scope of liability, the Act concerning such practice will be enacted to fulfilled the intention of the law e.g., the Fatal Accident Act, 1976. Underlining damages for non-pecuniary loss, we will find in this regime category of non-pecuniary losses that are entitled to compensation e.g. pain, suffering, loss of amenities and nervous shock. However, regardless of damages for bereavement, the Court does not ready to grant damages for each category separately. (ii) Restricted Pluralism This regime provides general principle in a provision to apply to general cases and provides some specific provisions for specific cases. This regime mostly found in civil law countries e.g., Germany, Italy and Thailand. In these countries you will find that specific type of compensation that is recoverable will be provided within their specific provisions, enacted in their Code. But it will not try to provide category of non-pecuniary losses that are recoverable. Non-pecuniary loss will be regarded as a unit that entitled to compensation therefore, regardless to damages for bereavement, damages for non-pecuniary loss will be granted in one sum. Occasionally, various elements may be made in order to guide the Court what should be compensated e.g., existential damages and biological damages in Italy however, the Court tends not to concentrate on making any sub-heading anymore as long as it is a loss that cannot be measured in terms of money i.e., non-pecuniary loss. (iii) The Single Rule This single rule regime gives a general principle which applies to most of the cases concerning tortious act for instance, French Civil Code section 1382. This

75

section covers all kinds of damage that are entitled to compensation though some specific provisions may only be made in order to separate the liability for other‟s act from liability for one‟s own act. In this single rule, we may find that non-pecuniary loss will be made in various categories. However, damages for non-pecuniary loss will be granted in a one sum form.

4.1.3.1.2 Models of Non-Pecuniary Loss

(i) Plural Loss with Single Sum This is a regime of the jurisdiction that divides the claimant‟s non-pecuniary loss into named categories for instance, England and France. But as they are not preparing to grant them separately, they‟re giving damages as a global sum367. (ii) Single Loss with Single Sum This regime is found in Thailand368, the claimant‟s non-pecuniary loss will be treated as one single loss (i.e., non-pecuniary loss) and be compensated in a single sum with neither a verbal nor a mathematical breakdown369 (iii) Single Loss referring to Various Elements with Single Sum This regime also regards non-pecuniary loss as a single loss but with various elements in order to guide the Court of what should be compensated; in analyzing the scope and extent of the loss370. The countries which apply this regime are, for example, Germany and Italy. 4.1.3.1.3 Models of Granting Damages for Pure Non-Pecuniary Loss in Case of Living Claimants

(i) Allowance This regime provides damages for all kind of pure non-pecuniary loss as long as it is a direct result from the tortious act. It does not limit the right to claim damages for this kind of loss. This is found in French legal system which applies the Single Rule model; one principle allowing the right to claim all damages resulted from the

367 Harvey McGregor, 11 International Encyclopedia of Comparative Law : Tort Ch. 9 Personal Injury and Death, p. 58. 368 Id. at 58. 369 Id. 370 Id.

76

tortious act. Thus, both primary and secondary victim are allowed to claim damages as per this one general principle. Italy, after introducing its Constitutional approach, is moving toward this model. (ii) Non-Allowance

This regime does not grant the right to claim damages for pure non-pecuniary loss. The provisions provided do not cover the right to claim damages for non-pecuniary loss that is not accompanied with injury to body, health or liberty. This regime is found in Germany and Thailand, as countries that deny the right to claim damages for pure non-pecuniary loss, by both primary and secondary victim. Mostly, it is found in the countries where they apply restricted pluralism model. However, the present legal approach of Germany has moving forward by granting damages for some of non-pecuniary loss that is not accompanied by physical injury. (iii) Restricted Allowance This regime grants damages for pure non-pecuniary loss in a restricted manner. The restricted manner may be identified by categories of loss, type of entitling person, intention of the defendant, the gravity of pure non-pecuniary loss, proximity of the event and etc. Mostly, it is found in the countries which apply unrestricted plurality model e.g., England.

4.1.3.2 Possible Solutions

As studied in Chapter 3, other jurisdictions have found their ways to bypass the legal restriction in order to provide full compensation. In brief, English law provides general heading of damages for non-pecuniary losses that are recoverable i.e., pain and suffering and loss of amenities, no matter which heading will fall into either category. Later, it moves away from the physical impact, this makes the scope of protection extend to nervous shock and also those secondary victims, with some restrictions. Non-pecuniary loss in England is regarded as a „state of damage‟ which is similar to the status of the right protected under section 420 of the TCCC; psychiatric illness is regarded to be injury to body. In conclusion, damages for non-pecuniary loss under English law is recoverable if the loss amounts to recognized illness regardless of whether the injured person is a primary victim or secondary victim.

German law, in contrast, grants damages for non-pecuniary loss only where it

is accompanied with injury to body, health, liberty or from the immoral act. , as same as law of Thailand; no heading was specified. German also recognizes compensation for nervous shock and psychiatric illness by the reason that it affects physical being of a person (injury to health), with some restrictions. Therefore, Germany, as well as Thailand, damages for non-pecuniary loss are recoverable as a state of compensation; and are the same status as per section 446 of the TCCC.

77

Italy law provides maximum protection by linking its tort law with its

Constitution. Therefore, damages for any damage can be recoverable if such damage is resulted from any injury against personal right(s) guaranteed by the Constitution; the right to health or known as “danno alla salute” usually applies in cases of non-pecuniary loss. In Italy, as well as in Thailand, damages for non-pecuniary loss are recoverable as a state of compensation; the same status as per section 446 of the TCCC, but it bypasses the problem of recovering damages for non-pecuniary loss that is not accompanied with physical damage by interpreting “danno alla salute” to includes pure non-pecuniary loss and that “danno alla salute” is one of the rights protected under its Constitution.

Under French law, all matters that amount to a disturbance in one‟s living

conditions may be subject to a claim for compensation under section 1382 as long as it is direct and immediate consequence of the incident371.

Concerning the product liability law, these countries are member of European

Countries which follow the principle of the EC Directive 1985 that left damages for non-pecuniary loss to the domestic law of each country. In England, the Consumer Protection Act 1987 does not precisely state about damages for non-pecuniary loss therefore it must refer to their general principle of tort. In German, since the year 2002, the product liability law of Germany has provided damages for pain and suffering. However, it does not abolish the right to claim compensation under the general principle of tort in the BGB; this is the same concept as our product liability law. Italy, with its wide scope of protection under its general principle of tort, even it has implemented the EC Directive into its domestic law, few cases was really been brought to the Court under the product liability law. Lastly, French law, by the implementation of the EC Directive, inserting article 1386-2 into its Civil Code, has provided the right to recover damages for any damage caused to a person by the unsafe product (“dommage qui résulte d‟une atteinte à la personne”) without any restriction to the type of damage that would be recoverable. Therefore, damages for non-pecuniary loss are recoverable under French product liability law. The models of implementing the product liability law in European continent are either enacting a new Act concerning product liability or inserting the new provisions into the Civil Code.

The uniform concept pulled out of these four jurisdictions are (1) damages for

non-pecuniary loss that is not accompanied with physical injury is recoverable; (2) Secondary victim, either expressly or impliedly, can claim damages for non-pecuniary loss that is not accompanied with physical injury and; (3) damages for non-pecuniary loss are recoverable under the product liability law itself but they still refer to their general principle of tort law because they already provide a very wide range of protection.

371 Michel Cannarsa, supra note 290, at 17.

78

As of Thailand, the inability to grant damages for pure non-pecuniary loss according to section 446 will also lead to improper level of care372. From the study, the author shall make the recommendation regarding possible solutions in order to bypass the legal restriction as follow:

4.1.3.2.1 Introducing Unified Interpretation of ‘Any Right of another Person’ The first alternative is to acknowledge that psychiatric injury is in itself a form of injury, and to cease viewing the sufferer as a secondary victim373. This is the effective device to limit the claim. (see also H,Teff, „Liability for Psychiatric Illness after Hillsborough‟)374

The first approach we might introduce is to introduce a unified interpretation

of „any right of another person‟. Referring to the survey of the Supreme Court decisions, the author found that the „right of the other person‟ should mean all the rights guaranteed by the laws375. Notwithstanding, the importance to draw a distinction line of „any right of another person‟, „any right of another person‟ shall mean either „absolute right‟ or „any right guaranteed by the law‟, non-pecuniary loss will be regarded as a state of damage thus, the claimant has the right to claim damages for his pure non-pecuniary loss as per section 420 and section 438 of the TCCC. But as mentioned above, this kind of interpretation will make section 446 useless. And the only person who can claim for damages for non-pecuniary loss must first in the position of a primary victim thus, a person who suffers psychiatric illness in other cases than to be in the accident himself will not be entitled to compensation since section 420 and section 446 only provide compensation for those primary victims. In addition, it does not solve the problem of the Liability for Damages Arising from Unsafe Products Act because it does not help distinguish between the terms „non-pecuniary loss‟ in section 446 of the TCCC and „damage to mental state‟ in the Liability for Damages Arising from Unsafe Products Act. Also, it does not clarify the status of „damage to mental state‟ in section 4 and 11(1) of the Liability for Damages Arising from Unsafe Products Act. What is more interesting about the issue of what should be the new interpretation of „any right of another person‟?. In foreign cases, for instance, Z v. United Kingdom376 a number of children (also parents in some cases) made claims for

372 The Complete Report , supra note 92, at 4-19. 373 Simon Deakin, Angus Johnson and Basil Markesinis, supra note 115 , at 143. 374 Id. at 144. 375 See Supreme Court decision no. 1100/2537 (The right protected under trademark law and privacy right are regarded as any right of another person provided in section 420); See Supreme Court decision no. 3489/2539 (The false published which caused the plaintiff to be disrespect from the society is considered as tortious act) cited in Sanunkorn (Jumpee) Sodtiparn, supra note 69, at 85-86. 376 [2001] 2 FLR 621, (2002) 34 EHRR 3.

79

psychiatric harm arising from alleged negligence committed by local authorities in the exercise of their powers of child protection. In most cases, authorities negligently failed to take steps to protect them from parents who cause physical/mental harm, in other cases, authorities negligently exercise their power to remove children from their parents377. At present the duty concept of English law recognizes, interests which are physical integrity of a person, tangible property and purely economic or financial interest. One possibility is the notion of mental well-being which is now given in restricted circumstances, look at the case mentioned about separating parents and child; under English law, the claimant will not be able to recover such pure non-pecuniary loss but under Article 8 of the European Convention on Human Rights which provides safeguard to family life, the outcome of the case would be different i.e., the claimant will be able to claim damages for non-pecuniary loss378.

4.1.3.2.2 Introducing a New Interpretation of ‘Injury to Body’ As medical practitioner has commented that body-mind-emotion is related and can never be separated. The mind is within the body. Whatever affects the mind will affect the body and vice versa. Emotions are the status of the mind which is stimulated by something in order to make the mind or body to response to. Commonly emotions status are aggression, anger, joy, shame, depression and etc.379 These 3 things have a chain reaction between them and therefore they can never be separated380. One emotion can lead to other emotions and, finally cause physical effect. For instance, hopelessness is the emotion where the person feels that he has no choice in his current life situation. If it lasts, it can result in depression381. If we stick to this explanation of medical science, we can interpret injury to body to include damage that is a pure non-pecuniary loss because it will finally affect the body. In this approach, the claimant will be able to claim damages for pure non-pecuniary loss by referring to section 420 (injury to body as a state of damage) and section 438 of the TCCC.

This approach does not solve the problems in the Liability for Damages Arising from Unsafe Products Act as well. If „damage to mental state‟ is regarded to be „injury to body‟, why would the law enact it separately? Because every emotion or mental injury, those stated in section 4, are already included in one „body‟ as per medical science explanation. One thing we should concern on using this interpretation is that, medical science is unlike legal science. Medical science seeks to find as much as explanation for a „body‟ in order to cure any illness which might occur while legal

377 Simon Deakin, Angus Johnson and Basil Markesinis, supra note 115, at 133. 378 See East Berkshire [2004] QB 558 cited in Simon Deakin, Angus Johnson and Basil Markesinis, supra note 115, at 136. 379 Patricia D. Barry, Mental Health& Mental Illness, (6th ed.), Lippincott-Raven Publishers, p. 138. 380 จรนทร ธานรตน, อนามยบคคล, (กรงเทพมหานคร: ส านกพมพโอเดยนสโตร), หนา 273-279 (Jarin Thaneerat, Personal Hygiene, (Bangkok: Odien Store Publisher], pp. 273-279. 381 Patricia D. Barry, supra note 379, at 141.

80

science seeks to impose liability on people therefore, the law must be certain, reasonable and realistic. In allowing claims according to this medical explanation, it will be hard for the defendant to defend himself since it‟s only the claimant who know what he is being, the doctor who is in charge of the injured person‟s treatment will also be reluctant to testify without the claimant‟s will. Even more, the problems as occurred for the first solution also remain i.e., section 446 will be useless and that only primary victims are entitled to claim damages for non-pecuniary loss. 4.1.3.2.3 Introducing a New Interpretation of ‘Injury to Health’ The World Health Organization recognizes that the mind is a part of health by defining health as „a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity‟382. Plus, in Thailand, there is also the definition of health provided in the National Health Act B.E. 2550 section 3 „health means the state of human being which is perfect in physical, mental, spiritual, and social aspects, all of which are holistic in balance‟. Moreover, learning from the interpretation of health right of other jurisdictions, „injury to health‟ can be interpreted in a wider sense i.e., to cover a well-being of a person as a state of damage. With this approach, the injured person will be able to claim damages for pure non-pecuniary loss by referring to section 420 (injury to health as a state of damage) and section 438 of the TCCC.

This interpretation will also diminish the problem mentioned in 4.1.2.2 because it would be clearer that section 11(1) of the Liability for Damages Arising from Unsafe Products Act authorizes the Court to order damages for damage to mental state which, according to its section 4, includes those similar to emotions which should be outside the scope of damages that is recoverable under the TCCC. In short, this unified interpretation will cover only damage to one‟s well being as damage to health therefore there would be some kind of damage that is actually outside the scope of protection of the TCCC.

This approach however, results in the same problem as the first solution; that section 446 of the TCCC will be useless. It would one day take us back to these problems whether damages for pure non-pecuniary loss can be claimed under section 446 or section 420 via section 438 of the TCCC; the same problem as of Italy during its revolution. Moreover, using interpretation to solve the problem can result in the challenge of the Court‟s proper authority under the Constitution to interpret the law as experienced by German Court which later lead to the Reform of Tort law383. Also, only those primary victims are entitled to request for damages for non-pecuniary loss.

382 Preamble to the constitution of the world health organization as adopted by the international health conference, New York, 19-22 June 1946; signed on 22 July1946 by the representatives of 61 states (Official records of the world health organization, no. 2, p.100) entered into force on 7 April 1948; The definition has not been amended since. 383 Comments on Princess Soraya case, supra note 195.

81

4.1.3.2.4 Amending the Laws (i) Amending the Thai Civil and Commercial Code The other approach left by which is possible to solve the problem of recognizing damages for pure non-pecuniary loss for the injured person as a primary victim is to amend the law i.e., either to amend section 420 or section 446 of the TCCC. In amending section 420 to cover pure non-pecuniary loss as another state of damage that raises the right to claim damages for pure- non-pecuniary loss under section 438 will allow the same problem as encountered in 4.1.3.2.1-4.1.3.2.3. In amending section 446 to allow pure non-pecuniary loss to be compensated even if there is no physical injury (injury tot body, health or liberty), it should be a better solution in order to diminish the restriction of the right to claim compensation for the loss which is not pecuniary loss. In engineering the provision, we must examine the nature of pure non-pecuniary loss. By categorizing mental injury, we might be able to divide the characteristic of mental harm into 3 types384 (1) affect to emotions; emotions normally occur as to human existence (2) pure non-pecuniary loss; the level of its seriousness is between emotions and illness therefore, it is hard to ascertain. (3) mental illness; this kind of damage is always recoverable because the symptom obviously showed and it is certain that illness is needed to be cured. This type will either regarded, in most jurisdictions, as injury to body or injury to health. As we are trying to engineer the new section 446 in order to provide compensation for pure non-pecuniary loss, a level of certainty must be met that is to say, the provision must provide the exact requirement in order to entitle the claimant to claim compensation for this kind of loss. In the United States of America, its legal system is well organized seeing that, it divides characteristic for each type of pure non-pecuniary loss that is recoverable and not recoverable, along with its requirements. The first form is the „Intentional Infliction of Emotional Distress‟. This type is to confirm that tort law recognizes the importance of one‟s emotional well-being where the extreme and outrageous conduct is found provide that there is causal connection between the tortious conduct and injury which cause this severe emotional distress385. The word „Intent‟ meaning that the tortfeasor has acted with knowledge that severe emotional distress will certainly be occurred by his conduct386.The next wording, „outrageous‟ is commonly understood as an action which goes beyond all possible bounds of decency and is regarded as atrocious and utterly intolerable in

384 Jakarin Kohomase, supra note 8. 385 Beau Baez III, supra note 62, ¶ 167. 386 Leaf River Forest Prods.,Inc. v. Ferguson, 662 So. 2d 648,666 (Miss. 1995) (citing Lyons v. Zale Jewelry Co, 150 So. 2d 154, 158 (Miss, 1963) cited in Beau Baez III, supra note 62, ¶ 170.

82

civilized community387. Thus, determining what is outrageous is depends on each society‟s cultural values and norms as well as by certain factors that may be unique to the individuals in a particular case. This gives us 4 general indications (1) by abusing a position of power (2) by taking advantage of a claimant whom the tortfeasor knows to be particularly vulnerable (3) continue certain acts which in isolation may be merely offensive, at times when the claimant is unable to leave in order to avoid such offensive acts; or (4) physically harming or threatening to physically harm a person or property of special interest to the claimant388. The second form is „Negligent Infliction of Emotional Distress‟. This type of distress will be recoverable if the result of such distress is foreseeable and links to the act providing that a reasonable person would suffer the same severe emotional distress, under the same circumstances, and actually suffer from such distress389. However, there is still no uniformity since this kind of distress lasts temporarily. The law is afraid of false claim and disproportionate of defendant burden and that it might be too remote hence, different approach is taken (1) deny the claim unless the claimant was in the zone of danger. The notion of „Zone of danger‟ meaning that the claimant was not physically impacted by the act of the tortfeasor but the claimant is entitled to ask for his emotional distress provide that at the time of the act (i) he was within the zone of danger of a negligent act directed at him by defendant (ii) the claimant was subjected to reasonable fear of immediate personal injury (iii) the claimant actually suffered substantial bodily injury or illness as a result of an act in the areas where a person is at risk of physical harm390 (2) deny the claim unless the claimant had sensory observation of the event that causes the third party‟s injuries (3) deny the claim unless there was an existence of special relationship between the claimant and the injured person (4) deny the claim unless the injury was materially serious391. The last form is to deny the claim unless the claim is complied with the impact rule392 that is to say, only where the distress is accompanied with physical injury. But these details are able to be made where conditions are not restricted by the statutory law, mostly found in jurisdictions where applying the unrestricted plurality model. In our restricted pluralism model, we must seek to find the core principle that is able to cover all details then enacted into our provisions.

387 McMAhon v. Craig, 97 Cal. Rptr. 3d 555, 566 (Cal. Dist. App. Ct. 2009); Beau Baez III, supra note 62, ¶ 168. 388 Id. ¶ 169. 389 Id. ¶ 175. 390 Id. ¶ 178. 391 Id. ¶ 176. 392 Id. ¶ 178.

83

According to the survey studied in chapter 2, all headings the Court has ever granted compensation for the claimant can be categorized into 4 types (1) pure non-pecuniary loss that caused detriment to one‟s well-being or to one‟s being. (2) pain and suffering accompanied with physical injury. (3) loss of amenities, this shall includes loss of beauty, loss of sense, loss of sex capacity, loss of earning capacity, loss of marriage prospect, loss of social and etc., ; and (4) psychiatric illness that is tantamount to injury to body or injury to health. Most of all, the Court will determine the claimant‟s right to claim damages by the present status of the injured person however, sometimes the future expectation has been taken into account e.g., loss of expectation of life (length of life, future career), loss of the possibility to engage in leisure activities/social, loss of the opportunity to lead a happy and normal life. All these may be grouped in a type of „loss of opportunity that reduces quality of one‟s life‟. In this connection, a threshold of well-being, being and quality to life may be made in order to facilitate the assessment of damages. In this new requirement, in case of Dr. Jermsak, even he claimed he suffered pure non-pecuniary loss resulted from the act, he is not entitled to compensation for his nervousness because it does not cause detriment to his well-being, his being nor does it reduce his quality of life. It does not amount to illness and it is not considered as pain or suffering since no physical impact has taken place. Therefore, his nervousness will be regarded as only emotions which the law, even acknowledges, but does not provide compensation for. Moreover, we must consider also the type of circumstances that should raise the right to claim compensation for pure non-pecuniary loss. Firstly, should we indicate the requirement that the act must be intentionally acted and, must it be acted outrageously? The author does not wish to indicate the outrageousness of the circumstance or the intention of the tortfeasor as the requirement of this new recommended section because some acts might not be outrageous yet, result in a material loss. For example in this illustration, in case where the mechanic negligently fixed the car then, the wheel dropped off the car while the claimant was driving in the night. The car cannot be stopped. In that time, a truck was coming in that way and may crush on the car. The truck and the car were very close, the truck beeped his horn loudly, and the claimant thought he is going to be crushed. Fortunately, the car slipped out off the road by accident and the claimant was not physically hurt however, he suffered a real stress which developed aftermath. He rarely drives at night and if he did, he will be nervous if he heard a loudly beeped-horn. Moreover, lots of medical malpractice lawsuit is not normally resulted from an intention act, rather negligent393. The outrageousness of the circumstance will already be taken into account when assessing damages as per section 438 of the TCCC. Still, when drafting the new section 446, we might consider nominal damages for damage to emotions that does not reach the level of pure non-pecuniary loss. For example, in case where a girl who was standing in a crowed metro whose bottom was intentionally touched by an unpleasant old man. In this case, she will suffer no mental

393 Kenneth B. Baren, Bystander Emotional Distress: Should Third Parties Recover Regardless of the Negligent Tort?, (2004), 25 J. Legal Med. 351, p. 2.

84

illness, nor does she suffer pure non-pecuniary loss at the level which will be set in the new section 446. Therefore, she cannot claim damages for her non-pecuniary loss nor does she lose anything that is pecuniary. Hence, she will be compensated with nothing under tort law. In this regard, the author views that section 420 provides protection for a person, every person will be guaranteed not to be disturbed or injured by anyone but himself. Therefore, in case of this illustration, the right of a girl to peacefully hold her body was being disturbed by the old man; her right was injured but she suffers no material loss. Tort law will not compensate if there is no loss. However in this case, her peaceful life had been damaged, but as it is not a material loss therefore, it should be compensated by nominal damages, to acknowledge that the loss is being compensated. In any case, if the damage is not severe enough, the claimant will naturally lack of incentive to file the lawsuit. Second, we must consider the proximity of the incident, whether it should has the proximity, either in time or in space? Consider for example the case of news transmission via television or other mass media, the television should not be liable for its transmission as they have their right under the Constitution to tell the truth according to freedom of the press, as long as they do not use their right off limit394. On the other side, should the tortfeasor is liable for the distress caused by the transmission of the news? In fact, the television itself can be considered as an act of a third party that breaks the chain of causation. Or we might consider that the tortfeasor should have known that the news must be transmitted and the relatives must immediately see it and suffer from it. Thus, the notion of „zone of danger‟ has been introduced to foreign jurisdiction, this may be considered to be another approach we can introduce to our jurisdiction as well. But the modern trend is to be away from the „zone of danger‟ since some claimants may arrive at the hospital shortly after the accident395. The author views that only the direct and immediate perception of the event 396 should be compensated. For example, in case arriving at the hospital, the claimant will be compensated only if the claimant arrives shortly after being informed of the incident. It can, at least, be presumed that relationship between the claimant and the injured person is tightening enough that the claimant has to leave everything else in order to come to the hospital as soon as possible. Third, how severe is the harm that should be qualified as „pure non-pecuniary loss‟ or „emotional distress‟. In this connection, the author would like to commence by referring to the category the author has made above which are (1) pure non-pecuniary loss that cause detriment to one‟s well-being or to one‟s being. (2) pain and suffering accompanied with physical injury. (3) Loss of amenities, this shall includes loss of beauty, loss of sense, loss of sex capacity, loss of earning capacity, loss of marriage prospect, loss of social and etc.; and (4) psychiatric illness that is tantamount to injury to body or injury to health. Thus, what we must consider is the first category

394 TCCC § 421 (The exercise of a right which can only have the purpose of causing injury to another is unlawful.). 395 Beau Baez III, supra note 62, ¶ 181. 396 B.S. Markesinis & S.F. Deakin, supra note 52, at 130.

85

of pure non-pecuniary loss. How severe the harm is should be considered as causing detriment to one‟s well-being or to one‟s being. The author agrees with the view that describes „what can upset/disturb the victim‟s mental balance by provoking strong sentiments of fear, anger, grief, insecurity, depression, loneliness, and the victim having to abandon one‟s cherished pastimes of future plans is considered as mental distress.‟ In this sense, the judge can only approach this view by taking all the facts of each individual into account397. Although each individual case might have to take each individual fact into account, we must recognize this kind of loss. Considering these cases, should there be any differences between the case where the victim whose house is burgled and who is unable to sleep for months after the event and the case where the thief knocks his victim down and committed a criminal act of bodily harm398. If we do not recognize pure non-pecuniary loss, the previous case will not be entitled to compensation. However, the author views that such pure non-pecuniary loss should, at least, last for a period of time. In this way, we can be sure that the loss is real. (ii) Amending the Liability for Damages Arising from Unsafe Products Act Seeing the experience from French lawyers who sought to endure that the new legislative liability will be no less strict or broader than the law already applied by the court 399The concept of the Liability for Damages Arising from Unsafe Products Act of Thailand concerning damages for non-pecuniary loss should be the same as in the TCCC to eliminate further confusion, either enacted with the same principle of the TCCC or delete the present section 4 and 11(1) concerning „damage to mental state‟ and apply the principle in the TCCC mutatis mutandis400. In this way, the Liability for Damages Arising from Unsafe Products Act will provide no less strict or broader than the law concerning damages for non-pecuniary loss that already applied. Regardless of the idea to implement the principle of the TCCC to this Liability for Damages Arising from Unsafe Products Act, the Act should implement the „State of Art‟ rule within the Act i.e., to exclude the liability of the business operators where it can be proved that in such time of production the business operator could not have any awareness (not enough technology/knowledge) to acknowledge of the unsafe of the product.

397 Christian Von Bar, supra note 255, at 174. 398 Id. 399 John Bell, Sophie Boyron and Simon Whittaker, supra note 314, at 404 cited in J. Ghestin, „La directive communautaire et son introduction en droit français‟ in J. Ghestin (ed.) Sécurité des Consommateurs et Responsabilité du Fait des Produits Défectueux, Colloque, (LGDJ, Paris, 1987), p. 111. 400 Anan Chantara-opakorn, supra note 38, p. 189.

86

4.1.3.2.5 Introducing the Concept of Secondary Victim

(i) Under the Thai Civil and Commercial Code

As to the issue of secondary victim, it is best to start by separating between those jurisdictions which allow third parties some degree of recovery and those which deny the possibility of claim to all. The strict approach was revealed in Switzerland. This strict approach provides the right to compensation for only the injured person (Oftinger 169). French in contrast, interprets its section 1382 in a very wide sense, extending the circle of potential claimants beyond the victims of physical injury (LeRoy ch.3)401. The last approach is to recognize the concept of secondary victim, with some restriction. For instance, English law imposes some requirements in order to be qualified as secondary victim as previously studied in Chapter 3.

In this new solution, secondary victim should also be able to claim damages

for their non-pecuniary loss. It would be unfair for the secondary victims not to have the right to compensation when they actually suffered the loss. For instance, there is a case of foreign jurisdiction in which the Court grants damages for badly crippled infant who got severe brain damage. He was once a bright kid. The Court granted damages for the child‟s pain and suffering and loss of amenities for 27,500 pounds402. In this case, what about the compensation for the parents? Because the suffering of the parents to watch their child growing up at such condition may cause even greater suffer for the parents. The parents could have looked forward to his child‟s happiness, marriage and etc. But all have been deprived from them as to the accident yet, they continue to look after their child and they are not entitled to recover for their grief and suffering403. Thus, as to the comparative study, foreign jurisdictions accept the concept of secondary victim. It is the time for Thai legal system to introduce the concept of secondary victim concerning compensation for non-pecuniary loss. However, with the lesson of flood gate in other jurisdictions; the law should scope the type of person and/or requirements of whom should be qualified as secondary victim.

The approach may be to (1) provide qualification of secondary victim. This

approach complies with the principle of the Constitution404 i.e., no discrimination. Because some couple/people who actually has a close tie relationship may not have any legal relationship. In fact, some groups of people are not allowed to be legally married under the present law. (2) specify the class of people who is eligible for the claim i.e., the type of relationship of the claimant. This approach is a better solution in order to eliminate the problem of floodgate although it leaves no discretionary power

401 Harvey McGregor, supra note 367, at 70. 402 See Taylor v Bristol Omnibus Co. Court of Appeal, supra note 184. 403 Id. 404 Thai Constitution B.E. 2550 § 30, supra note 350.

87

for the Court to determine whether the relationship between the claimant and the injured person is real or not. There was once stated in the case of Stovin v. Wise, Lord Nicholls in particular stated about the notion of proximity „proximity is a slippery word. Proximity is not legal shorthand for a concept with its own, objectively identifiable characteristics. Proximity is convenient shorthand for relationship between two parties, which makes it fair, and reasonable that one should owe the other a duty of care. This is only another way of saying that when assessing the requirements of fairness and reasonableness regard must be had to the relationship of the parties‟405In this light, consistency successful claimants have always been parents, spouses, few children and fiancé (In France406). The next statement which should be read before specifying the class of person who might be considered as secondary victim is the case of McLoughlin v O’Brain which Lord Wilberforce particularly said „as regards the class of persons, the possible range is between the closet family ties- of parent and child, or husband and wife- and the ordinary bystander. Existing law recognizers the claims of the first; it denies that of the second, either on the basis that such persons must be assumed to be possessed of fortitude sufficient to enable them to endure the calamities of modern life, or that defendants cannot be expected to compensate the world at large… other cases involving less close relationships must be very carefully scrutinized. I cannot say that they should never be admitted. The close the tie (not merely in relationship, but in care) the greater the claim for consideration. The claim, in any case, has to be judged in the light of the other factors, such as proximity to the scene in time and space, and the nature of the accident407‟. Specifically consider the type of person who should be regarded as secondary victim, where a jurisdiction has decided to limit damages for loss of support to those legally entitled to demand support, it is hardly in a position to accept a wider range for the subsidiary claim based upon mental suffering since there is no appropriate analogy to the criterion of legal obligation to support (For example, Scotland awarded “solatium” for mental suffering to those whom the deceased has been obliged to support. Greece had a wider sense of protection as it does not restrict to only those who has legal obligation to support but extend to those who provide the actual support408. In the author‟s opinion, those who have a duty to provide an actual support should be presumed that they are entitled to compensation as a secondary victim. Because in this sense, we can be certain that there is an actual tie relation in care, not only in name. Moreover, such person who actually provides care for the injured person is presumed to be in distress as he/she must see the injured person in suffer. For instance, in case where the claimant is a mother of a young lovely child who is about to grow up with a bright future, an accident has deprived all the bright future of a child as a child got brain damage resulted from the accident. Not only the child is suffer, the parents who actually provide care for their child must suffer too since they must see their child in an unacceptable condition everyday instead of seeing their child as a healthy young

405 [1996] AC923, 932 cited in Simon Deakin, Angus Johnson and Basil Markesinis, supra note 115, at 130. 406 Cour Paris 26 sept. 1956, Gaz. Pal. 1956. 2. 233 cited in Harvey McGregor, supra note 367, at 75. 407 B.S. Markesinis & S.F. Deakin, supra note 52, at 131. 408 Id. at 110.

88

child. However, as per the rule of presumption, if the defendant can prove otherwise, damages for non-pecuniary loss will not be granted to secondary victims.

The other requirements shall be the same as in the issue of requesting damages for pure non-pecuniary loss i.e., the proximity in time, the nature of pure non-pecuniary loss and the intention of the tortfeasor. (ii) Under the Liability for Damages Arising from Unsafe Products Act

The Liability for Damages Arising from Unsafe Products Act section 11(1) also does not provide the right to claim compensation for „damage to mental state‟ for a person who is not a „damaged party‟. Therefore, secondary victim cannot claim compensation for „damage to mental state‟ under the Act except where the damaged party has died. The concept of secondary victim in case of living claimants therefore, should be introduced as same as will be introduced in the TCCC, to confirm that the protection under the Liability for Damages Arising from Unsafe Products Act will be no less strict nor broader than the protection under the TCCC. Nevertheless, detriment to mental state can be restored, even it is not equal to pre-accident level, by other means than damages for instance, to assist counseling and psychotherapy409 to secondary victims. The author finds that, regardless of what law the claimant refers in filing the lawsuit, there should be a Psychotherapy Support Institution funded by the government (for both primary and secondary victim) or, in case there is no such institution, damages for non-pecuniary loss for secondary victims may be used in order to require treatment from therapists. 4.2 The Problem of Recovering Damages for Non-Pecuniary Loss in Case of Injury to Life In Italy, there was a problem whether biological damages can be claimed by the heirs/relatives/persons listed under the law (as the case maybe) of the deceased, or whether they merely inherit the deceased‟s right to claim. This distinction is important since in case of instant death biological damages will be excluded thus no claim can be made by the estate. But if the victim survives long enough to suffer biological damage, his claim will be inherited to his relatives. Additionally, his relatives are empowered to pursue their claims for their “danno morale”410. As to the importance of this distinction, the author has made 3 models of suing for compensation in case of injury to life.

409 Johannesson, Kerstin Bergh, Stefanini, Stefano, Lundin, Tom and Anchisi, Roberto (2006),Impact of Bereavement among Relatives in Italy and Sweden after the Linate Airplane Disaster, International Journal of Disaster Medicine 110, 4:3, at 111. 410 Christian Von Bar, supra note 255, at 25.

89

4.2.1 Models of Recovering Damages for Non-Pecuniary Loss in Case of Injury to Life

4.2.1.1 Models of Suing

4.2.1.1.1 Against the Estate

The victim loss is not diminished by the death of the tortfeasor, claim against the estate can always be made by the injured person against the estate of the tortfeasor411 4.2.1.1.2 By the Estate There are 2 possibility types of claim that can be done by the estate (1) the inheritability of the right to damages for non-pecuniary loss of the injured person while living. There are many approaches in order to allow this type of claim for instance, base upon whether an action has already been commenced by the victim while living, solutions may be found in specific term in civil code and occasionally by case-law 412. Another approach is to at least provide the declaration of the injured person‟s intention to pursue the claim413. Also in common law, we might find in form of specific legislation which indicates the survival of personal action414. (2) the inheritability of the right to claim for the injured person‟s value of life. This kind of form is the form that the author would like to introduce for our jurisdiction and will further explain infra. 4.2.1.1.3 By the Relatives of the Deceased The claims by the heirs/relatives/person listed under the law, as the case maybe, can be distinguished between those legal systems which do not compensate the grief caused by the loss of a loved one and those which do. In addition, the jurisdiction which grants damages for loss of a loved one also specifies the type of persons who are entitled to claim such damages. For instance, Greek insists that only the family of the deceased is entitled to such claim.415Some jurisdictions extend the type of persons who is eligible to claim i.e., to cover spouse, partner including foster children. The sub-models of granting damages for bereavement as per the relatives of the deceased‟s right are:

411 Harvey McGregor, supra note 367, at 76. 412 Id. at 77. 413 Id. at 78. 414 Id. at 79. 415 Christian Von Bar, supra note 255, at 189.

90

(i) Allowance

As same as in case of living claimants, this regime provides damages for all kind of pure non-pecuniary loss as long as it is a direct result from the tortious act for instance, French legal system applies the Single Rule model; in this sense the deceased‟s relatives can claim damages for bereavement in case of injury to life as of their own rights. (ii) Non- Allowance

This regime does not grant the right to claim damages for bereavement as it

regards bereavement as only emotions that are not guaranteed by the law mostly, found in the countries where apply restricted pluralism model e.g., Germany and our present system. (iii) Restricted Allowance

This regime grants damages for bereavement in a restricted manner i.e., by specifically providing such right in a statutory law mostly found in the countries which apply unrestricted plurality model e.g., England. 4.2.2 Regarding Damages for Non-Pecuniary Loss in Case of Injury to Life 4.2.2.1 Under the Thai Civil and Commercial Code 4.2.2.1.1 Damages for Bereavement First of all, section 446 suggests that the right to claim damages for non-pecuniary loss will die with the injured person and will not pass to the heir. Section 446 of the TCCC provides “In case of injury to the body or health of another, or in the case of deprivation of liberty, the injured person may also claim compensation for the damage which is not a pecuniary loss. The claim is not transferable, and does not pass to the heirs, unless it has been acknowledged by contract, or an action on it has been commenced.” Together with the strict interpretation of section 446, 443 and 445 and according to the Supreme Court‟s approach revealed in his decisions studied in Chapter 2, damages for non-pecuniary loss will not be granted in case of injury to life because the Court found that no statutory law literally provide compensation for non-pecuniary loss in case of injury to life and that emotion (sadness) resulted from the loss is not regarded as a state of damage guaranteed by the TCCC.

91

4.2.2.1.2 Inheritability The Thai Civil and Commercial Code does not provide the right to inherit the right to claim damages for non-pecuniary loss of the deceased except where an action on that has already been commenced as per section 446. In engineering the right to claim damages for non-pecuniary loss in case of injury to life, one must consider this inheritability issue since when drafting, the problem of ambiguous meaning may arise i.e., does the right to compensation in case of injury to death means the right to claim damages for bereavement, damages for loss of life (value of life) claimed by the heirs/relatives/person listed under the laws (as the case maybe) of the deceased or does it mean the inheritability of the right to claim damages for non-pecuniary loss of the deceased? 4.2.2.1.3 Damages for Loss of Life (Value of Life)

The present Thai Civil and Commercial Code does not provide the right to claim damages for loss of life i.e., no value of life can be claimed as the Court strictly applies section 446 , section 445 and section 443 in order to grant damages in case of injury to life. 4.2.2.2 Under the Liability for Damages Arising from Unsafe Products Act ‘Section 11: The court shall be authorized to demand compensation for damages based on the following, in addition to compensation for violations of the Civil and Commercial Code: (1) Compensation for damage to mental health, as well as body, health, and hygiene of the damaged party. In the event the damaged party has died, the damage party‟s husband, wife, children, or descendants shall have rights to compensation for the damage occurring to mental health.’ Seeing that this section does not clearly mention whether the right to claim damages for „damage to mental state‟ is the inheritability of the injured person‟s right or it is the listed-persons own right to claim damages for „damage to their mental state‟ i.e., damages for bereavement. With all respect to the translation, the original wording of this section416 uses the terms “ชอบทจะไดรบคาเสยหายส าหรบความเสยหายตอจตใจ” should be interpreted as „entitled to receive damages for damage to mental state‟, not „have rights to compensation for the damage occurring to mental health.‟. There are two ways to interpret this provision (i) the right to claim damages under section 11(1) is inheritable because it is the right to claim „damages for damage

416 See Liability for Damages Arising from Unsafe Products Act § 11 (1).

92

to mental state‟ which is an additional damages from the TCCC; the right to claim damages for non-pecuniary loss under the TCCC is inheritable. Therefore, it can be enacted separately; or (ii) the listed-persons have their own right to claim damages for bereavement resulting from the death of the deceased; or (iii) the listed-persons have their own right to claim damages for loss of the deceased‟s life (value of life). According to the note from the Council of State which suggests that the Council of State does not want damages for „damage to mental state‟ to survive the death but rather give damages for bereavement of the relatives417, Thai scholars still are not willing to inherit the right to claim damages for non-pecuniary loss because they regard non-pecuniary loss as a personal matter which won‟t be inherited according to the law of succession418. However, the wording of the section should be amended so as not to result in any further confusion. 4.2.3 Regarding Possible Solutions in order to Provide Full Compensation in Case of Injury to Life The author would like to brief the comparative study before introducing possible solutions for the problem, With regard to the study in Chapter 3, personal injury damages for non-pecuniary loss in England will survive the death of the deceased by the power of the Miscellaneous Provisions Act 1934, this provision can be inferred that damages for non-pecuniary loss are not regarded as an estate if there is no specific law saying so. It means that English law regards non-pecuniary loss as the deceased‟s right but the law specifically inherits such right to the heirs because the owner cannot claim compensation as he has already died419.Moreover, English specially grants damages for bereavement by the Fatal Accident Act 1976. German law previously did not inherit the right to claim damages for non-pecuniary loss to the heirs but later amended its provision in order to inherit such right. However, it does not grant damages for bereavement because it regards secondary victim as the third person which shall be able to claim damages according to the case specified by laws. For Italy, with its revolution, the right is inheritable by claiming “danno alla salute”, without amending its provision. By referring to “danno alla salute”, everybody is entitled to claim damages for non-pecuniary loss if the action causes damage against the right guaranteed by the Constitution.

417 ศกดา ธนตกล, ค าอธบายและค าพพากษาเปรยบเทยบกฎหมายความรบผดตอสนคาไมปลอดภย, (กรงเทพฯ: ส านกพมพวญญชน), (พมพครงท2, 2553) หนา167 (Sakda Thanitkul, The Explanation and Comparative Decisions on Unsafe Product Liability, (Bangkok: Winyuchon Publisher), (2d ed. 2010), p. 167). 418 TCCC § 1600 (Subject to the provisions of this code, the estate of a deceased includes his properties of every kind, as well as his rights, duties and liabilities, except those which by law or by their nature are purely personal to him.). 419 See Miscellaneous Provision Act 1934.

93

France legal system, does not specifically say anything on the issue, French legal system allows all claims that meet the requirements of its section 1382. England, Germany, Italy and France all allow the pursuant/continuous of damages for non-pecuniary loss claims suffered by the deceased420. The similarity of the principle of these countries is that no country automatically regards damages for non-pecuniary loss as the heritage, either puts the right to claim damages as the persons listed under the law‟s right or, specifically enacts a special law to inherit such right. However, there is still some countries that stick to the old rules for instance, Poland; Article 445 subs 3 “… a claim for compensation passes to the heirs only when it has been recognized in writing or when an action has been begun during the life of an injured person‟ …subjective right,… not transmit to his estate” Netherland, with its half-way revolution, requires at least the deceased‟s verbal intention stating that he wants to pursue the claim and it does not grant damages for bereavement421. In product liability area, the study reviews that the principle of tortious claim is used for product liability area as well, whether it is inheritable or not will depend on the general principle of tort law in such country. But the common frame of European countries has directed that the person who has the right to claim compensation should not be limited to only the heirs but also the life-companionship. Some countries grant the inheritability of the right to claim damages for non-pecuniary loss, some do not. But most of the countries we have studied grant inheritability because they concern about the preservation of one‟s right and grant damages for bereavement to, at least, show that their laws acknowledge injury to life as well as other injury. For our jurisdiction, the author finds that we must also acknowledge damages for non-pecuniary loss in case of injury to life as well as it acknowledges damages for non-pecuniary loss in case of other injuries.

420 W. V. H. Rogers,Ewa Bagińska, Damages for Non-Pecuniary Loss in a Comparative Perspective, 2 Tort and Insurance Law, (New York: Springer-Verlag Wien), 2001, pp. 259-260. 421 See also Raad, [2002] NJ 240 (A mother who had a direct impact in her health by the shocking event of her child‟s death can recover damages for non-pecuniary loss) cited in W. V. H Rogers, Non-Pecuniary Loss, RIAD Vienna 28 x 05, p. 5, available at http://www.riad-online.net/fileadmin/documents/homepage/events/past_events/Vienna/Vortrag%20Rogers%20281005.pdf.

94

4.2.3.1 Under the Thai Civil and Commercial Code 4.2.3.1.1 Damages for Bereavement It is so true that emotions are hard to be ascertained. This is one of the reasons why laws do not grant the right to claim compensation for damage to emotion. However, the author finds that specific emotion should be guaranteed by the law i.e., bereavement because of the following reasons: (1) To provide full compensation to the injured person and his heirs/relatives. Even bereavement can be considered as emotion, it is a kind of serious emotion which resulted from loss of life, the most serious injury of all personal injuries. It will be weird if for example, in case where the injured person does not die but rather got material injury, his relative who was in the scene and was shocked by the incident is able to claim damages for his non-pecuniary loss while in a very same situation, his relative will have no right to claim compensation for his non-pecuniary loss if the injured person unfortunately died as per the accident. (2) To reflect the good moral of the society. The relatives are persons who actually lost something, their love one. Damages, even cannot bring back the “status quo ante”, it can be regarded as compensation since it is able to make the relatives feel that the wrongdoer has also lost something as a result of his wrongful act and that they are not undercompensated than the injured person in case of injury to body and alike which are obviously less serious than the injured person in case of injury to life. Not to grant damages for non-pecuniary loss in case of injury to life will constitute the improper level of care. This justification will be presented in the „lack of method of calculation‟ session (see infra 4.3.2.2) (3) To prevent an unfair settlement (see infra 4.3.2.3.). As the plaintiff might be under pressure and is forced to accept the sum of damages that may be less than the actual loss. (4) To comply with the culture of the TCCC section 1461, 1563, 1564 and 1439422. These sections make believe that the TCCC acknowledges the loss of relatives. Moreover, there is a research concerning the impact of bereavement among relatives after a disaster423. This research concludes that traumatic losses deeply affect bereaved relatives. And that health is affected by such trauma which can be developed into strong symptoms called „post-traumatic stress‟. A significant recovery was found

422 TCCC § 1461 (The husband and the wife shall cohabit as husband and wife. The husband and the wife shall support and maintain each other in accordance with their capacity and individual status); TCCC § 1563 (The children are bound to take after their parents); TCCC § 1564 (The parents are bound to take after their children and to provide the proper education for them in the period of their minority. The parents are bound to their children only when they a re infirm and unable to earn their living); TCCC § 1439 (When the betrothal has been, if a part commits the breach of the betrothal agreement, the other party can be entitled to take the compensation. In case of the part of the woman commits the breach, the engagement gift shall be returned to the man.). 423 Johannesson, Kerstin Bergh, Stefanini, Stefano, Lundin, Tom and Anchisi, Roberto, supra note 409.

95

18 months after the accident however, the recovery does not reach the pre-accident level. In addition, people tend to buy insurance in their old age as much as they do when they were young so as to insure their potential to receive medical treatment when they are sick and to insure the financial status of their heirs. (5) To comply with the principle in section 420 of the TCCC. Because even section 446 does not expressly provide injury to life as a kind of damage that raises the right to claim damages for non-pecuniary loss but injury to life is qualified as a state of damage under section 420 therefore, in fact, the Court is always be able to grant compensation for non-pecuniary loss according to the general principle of state of compensation as per section 438, any compensation that would bring the injured person back to the “status quo ante” shall be recoverable. Professor Kampree Kaowchareon commented that „any damage‟ in section 438 paragraph 2 would cover all types of compensation. Because even it does not clearly state this kind of compensation therein, it does not prohibit as well. (6) To comply with other science i.e., medical science. Medical profession recognizes emotion as a part of body because it disturbs well-being of a human. Also, it can cause adverse effect to the body itself. Various explanation providing by leading scholars such as Dr. Walter B Cannon of the Harvard Medical School stated that „Emotions can bring about important bodily changes‟424 For example, fear causes effect to the digestive processes, dry mouth and frequency of urination425. The body would response to emotions426, therefore an emotion as an purely mental thing does not exist427. There is a research which also indicates that the marital relationship also affect in shaping health trajectories in old age428 i.e., long-term physical and mental health429: a functional limitation and depressive symptom430.

424 Available at http://en.wikipedia.org/wiki/Walter_Bradford_Cannon; See the investigation of Dr. Walter B Cannon of the Harvard Medical School, available at http://oasis.lib.harvard.edu/oasis/deliver/deepLink?_collection=oasis&uniqueId=med00088. 425 Peter Handford, Mullany&Handford’s Tort Liability for Psychiatric Damage, (2d ed. 2006), Thomson Lawbook Co., p. 58. 426 สวทนา อารพรรค, ความผดปกตทางจต, คณะแพทยศาสตร, จฬาลงกรณมหาวทยาลย, หนา 369 (Suwattana Areepak, Psychatric Illness, Faculty of Medical Science, Chulalongkorn University, p. 369) (A man-nurse was working in the delivery room in the hospital. He became as a result of seeing a woman suffered from delivering her baby.). 427 Herbert F. Goodrich, Emotional Disturbance as Legal Damage, (1992) 20 Mich L Rev 497, at 501. 428 American psychological association, Spousal Associations between functional limitation and depressive symptom trajectories: Longitudinal findings from the study of asset and health dynamics among the oldest old (AHEAD, at 153), (2011), 30 Health Psychology 153, at 153-162, available at www.apa.org/pubs/journals/hea. 429 Id. at 161. 430 Id. at 160.

96

With altogether reasons, it is enough to recommend that emotion occurred from injury to life should be compensated i.e., damages for bereavement. The death of the deceased actually results in detriment to the deceased‟s heirs/relatives‟ mental state provided that such person are close enough in the sense of love and affection431. The problem is the sense of love and affection are abstract therefore, the author would recommend the type of people who will be presumed as secondary victim to also be qualified as a claimant for damages for bereavement. At least, it can be presumed that there is some sense of love and affection between the person who actually provides care and the person who actually receives it.. As the reasons stated above, the author suggests that we should grant damages for bereavement for a group of person (same as those who are presumed to be qualified as secondary victim) by enacting the new section 443/1 in the TCCC. In compensating damages for bereavement, one must be aware when drafting the law because it might lead to malicious lawsuits and unintentionally provide benefit for persons who seek to be benefited from their relative‟s death. Therefore, the author is on the side that damages for bereavement should be compensated once and for all which should fall into the estate of the decreased. This is to ensure that the defendant will not have to face series of lawsuits to pay for one big family‟s bereavement, and who know how big family the deceased may have. Thus, this new section will suggest that damages for bereavement, as it shall fall into the estate of the deceased, and will be able to be claimed once and for all to prevent repetition of claims and over compensation. The author could suggest adding the terms „injury to life‟ within section 446 in order to grant the right to claim damages for non-pecuniary loss in case of injury to life but the author finds that it can result in further confusion whether damages for non-pecuniary loss in section 446 means damages for bereavement or means the inheritability of the right to claim damages for non-pecuniary loss as it does in the present Liability for Damages Arising from Unsafe Products Act. 4.2.3.1.2 Inheritability

The same reason (1)-(3) apply to damages for bereavement. Thus, there should be something to compensate the heir of the deceased either

by the inheritability of the right to claim compensation for non-pecuniary loss of the deceased or by the heir‟s own right to claim damages for bereavement/damages for loss of life (the deceased‟s value of life). Considering the notion of tortious compensation, the principle of full compensation is to bring the injured person back to his pre-accident position. However, in case of injury to life, nothing of the deceased can be cured or reduced. Not similar to case of living claimants, it is possible to

431 Johannesson, Kerstin Bergh, Stefanini, Stefano, Lundin, Tom and Anchisi, Roberto, supra note 409.

97

investigate the loss of the injured person; the Court then can contemplate what should be the appropriate compensation for the injured person. But in case of injury to life, no injured person is lived to identify his status. The author does not wish to strongly state that there should be no inheritability at all because it may also be regarded as only the preservation of one‟s right that already existed432. However, considering that damages received cannot make any good to the deceased‟s position while it can, at least, make some better off for the deceased‟s status had he lived therefore, it may not need to reserve the right to claim damages for non-pecuniary loss in case of injury to life. The problem of recovering full compensation, maintaining good moral of the society and delaying settlements will already be diminished by the new right to claim for damages for bereavement and damages for loss of life (see infra 4.2.3.1.3). Thus, the author does not suggest to automatically grant the inheritability of the existing right to claim damages for non-pecuniary loss because such damages cannot compensate the loss of the victim; as he has already died. In granting the inheritability, together with damages for bereavement and damages for loss of life, will lead to over compensation for the relatives. In case the Court found that the tortious act was brutal, the Court still reserves his discretionary power in granting punitive damages as per section 438 of the TCCC. This approach is complying with the Council of State‟s view that damage to mental state or non-pecuniary loss is a personal matter and shall not be compensated except the injured person expressed so. 4.2.3.1.3 Damages for Loss of Life (Value of Life) Dating back to the modern notion of Human Capital of Adam Smith, human is regarded as one of the capitals. Therefore, if one capital is lost, it should be compensated433. Also, it is important to recognize value of one‟s life because it may lead to a conclusion that the law put more value on a property than on a life. For the purpose of illustration, a girl who has no relative or close person was wearing a very expensive watch while crossing the street. If a car crash on her and unfortunately she died, her watch broke completely. In this case of injury to life, as she has no relative or close person left, no one is eligible to claim damages for bereavement, and dmages for loss of life (value of life) as it is not acknowledged by the law. The only compensation left is recovering of damages for pecuniary loss which is the price of the watch. Even a life cannot be measured in terms of money; it is undeniable that it has value. Professor Sanankorn434 commented that the life is so valuable, then why shouldn‟t the life itself raise the right to claim damages in case where it was lost? The author views that a life has value in itself thus, we should insert the right to claim damages for loss of life (value of life) within the new section 443/1 so that the heirs/‟persons who will be listed‟ will be able to claim for such damages. These damages for loss of life will be able to be claimed once and, as it is an action by the

432 Law Commission No.257, supra note 118. 433 Adam Smith: The Concise Encyclopedia of Economics (1723-1790), available at http://www.econlib.org/library/Enc/bios/Smith.html. 434 Sanunkorn (Jumpee) Sodtiparn, supra note 69, at 264.

98

estate, it will fall into the estate of the deceased no matter who claim for such damages. 4.2.3.2 Under the Liability for Damages Arising from Unsafe Products Act For the Liability for Damages Arising from Unsafe Products Act, as of the Council of State‟s intention, damages for „damage to mental state‟ which is granted in case of injury to life shall mean damages for bereavement. However, to avoid confusion as stated above, the provision should be amended. The remaining problem is that in enacting as such, both laws will share the same principle with the TCCC. Therefore such right to claim damages for bereavement will not be regarded as „addition to compensation for violations of the Civil and Commercial Code‟ which is not complying with the wording of section 11 paragraph 1of the Liability for Damages Arising from Unsafe Products Act since the new Thai Civil and Commercial Code will be providing wider range of compensation than those provided within the Act. Thus, we might solve this problem by eliminating the first paragraph of section11 of the Liability for Damages Arising from Unsafe Products Act and, apply the principle in the TCCC mutatis mutandis435. 4.3 The Problem Concerning the Lack of Legal Method of Calculation Before entering the method of calculation part, it‟s noteworthy to remind us of models of non-pecuniary loss supra 4.1.3.1.2 (i) Pluralism with Single Sum. This is a regime of jurisdictions that divide the claimant‟s non-pecuniary loss into named categories but, granting damages as a global sum436. (ii) Single Loss with Single Sum. This regime treats non-pecuniary loss as one single loss and be compensated in a single sum437. (iii) Single Loss Referring to Various Elements with Single Sum. This regime treats non-pecuniary loss as a single loss but with various elements. In addition, the author would like to group models of method of calculation in order to seek the best method of calculation for our system 4.3.1 Models of Method of Calculation 4.3.1.1 Legal Method This method is either done by examining the amount of damages from previous decisions or by examining one‟s value with regard to economics and, with those figures, creates a table/guideline as a tool to facilitate the Court in assessing

435 Anan Chantara-opakorn, supra note 38, at 189. 436 Harvey McGregor, supra note 367, at 58. 437 Id.

99

damages. However, the final amount is subjected to the Court‟s discretion. Nevertheless, in some jurisdictions, after examination of the amount of damages from previous decisions or examination of one‟s value by regarding to economics, damages for bereavement have been fixed in the same figure for all. 4.3.1.2 Medio-Legal Method This method was created by the investigation of the amount of damages from previous decisions and concerted them into monetary numbers. Such numbers will be used as a tool to facilitate the Court in assessing the amount of damages however, it must be used together with medical assessment either directly by the medical valuation of disability/level of pain or indirectly by expenses incurred from medical treatment. Germany once used medical treatment expenses in assessing damages438 . 4.3.2 Issue Concerning the Lack of Legal Method of Calculation The TCCC, the Liability for Damages Arising from Unsafe Products Act and other laws or regulations concerning tort legal system have neither Guidelines nor any legal method of calculation in order to assess the amount of damages for non-pecuniary loss. The Court has to apply section 438 paragraph 1 of the TCCC439 and exercise his discretionary power in full in order to determine the amount of damages for non-pecuniary loss hence different Judges resulted in different amount of damages even the circumstances of the cases are similar. For example, in one case, a loss of an arm may receive damages amount to 3,000 Baht while another case may receive damages amount to 30,000 Baht. This full discretionary power may result in inequality for the claimants. In present, the Court has taken into account financial and social status of both parties in exercising his discretion440 when the actual loss cannot be proved441. This is because the Court understands that value of money is differed by financial and social status of the people (injured person). But is it the right approach which should be taken in order to grant damages for non-pecuniary loss? Moreover, if we are to take the value of money according to one‟s subjective; one pecuniary loss may become non-pecuniary loss. For example, 5 Baht may mean a lot to poor people therefore, taking 5 Baht from poor people, after that, giving it back to him. He is not fully compensated since there is also non-pecuniary loss that attach with such pecuniary loss442. 438 Holzschuher, Theorie und Casuistik des gemeinen Civilrechts (ed. 3 Leipzig 1864) 1120 cited in Hans Stoll, supra note 56, at 48. 439 TCCC § 438 para. 1 (The Court shall determine the manner and the extent of compensation according to the circumstances and the gravity of the wrongful act.). 440 Paijit Boonyapan, supra note 23, at 164. 441 See Supreme Court decision no. 1292/2524 (The Plaintiff cannot prove of the actual loss and the amount of damages. The Court is empowered to determine the amount of damages according to section 438.) cited in Paijit Boonyapan, supra note 23, at 165. 442 Paijit Boonyapan, supra note 23, at 164.

100

Not concurring with the approach that taking financial and social status into account in case of damages for non-pecuniary loss, the author suggests that tort legal system should have the uniform method of calculation in order to preliminarily calculate the amount of damages for non-pecuniary loss because of the following reasons; 4.3.2.1 To Prevent Inequality Even the Court seems to take into account financial and social status of both parties in exercising his discretion, we do not know of the exact inside method of calculation of the Court or the exact features the Court uses in exercising his discretion since the Court does not provide the method within his judgment e.g., specific factors, head of damage and etc.443 But as far as the author concerns, there is still no method of calculation. The difficulty of the assessment of the amount of damages for non-pecuniary loss poses the threat of the inconsistent practice of the Court and of the legal uncertainty which is arising therefore444. Seeing that different amount of damages are granted in cases which share similar circumstances. The study shows that in different cases, even with similar circumstances, the claimant of each case was granted a different amount of damages for instance, between the Supreme Court decisions no. 247/2538 and no. 4859/2538. The first case provides that „defendant recklessly drove and finally caused an accident. The claimant was in the car and was seriously injured. He suffered and became disabled for the rest of his life. He was awarded 137,617 Baht for his non-pecuniary loss‟. The latter case provides „the defendant was a government institution who used bare wire in public place without informing the public, the claimant who got electric shock which later resulted in damage to his brain and became paralyzed for the rest of his life. He was not awarded any damages for his non-pecuniary loss445. Another example, comparing the Supreme Court decisions no. 2580/2544 and no. 5751/2545, the first case provides „the claimant was under eyes surgery. With a medical malpractice surgery, the eyes cannot be closed properly, the claimant was awarded 220,251 Baht for her non-pecuniary loss‟ while the latter case provides „the defendant recklessly drove a bus and crashed on the claimant who got seriously injured. His left eye got damaged and cannot be cured. The defendant was awarded only 54,682 Baht446‟. The Court indicates the reason that the latter case received only about 50,000 Baht because he did not work and he was already 50 years old while case no. 2580/2544 received 220,251 Baht because there was a fact that she was a

443 The Complete Report, supra note 92, at 5-1. 444 Hans Stoll, supra note 56, at 37. 445 The Complete Report, supra note 92, at 5-3; See Appendix B. 446 Id.; See Appendix C.

101

teacher447. As we have studied about the Italian regime in its revolution, everybody should be equally compensated regardless of his age, work or social status. In fact, under Thai law, everyone should also be equally protected under the same Constitution according to the Constitution of the Kingdom of Thailand B.E.2550 which provides: Section 4 of the Constitution provides „The human dignity, rights and liberties and equality of the people shall be protected.‟ and; Section 6 of the Constitution provides „The Constitution is the supreme law of the State. The provisions of any law, rule or regulation, which are contrary to or inconsistent with this Constitution, shall be unenforceable.‟ and; Section 30 of the Constitution provides „All persons are equal before the law and shall enjoy equal protection under the law. Men and women shall enjoy equal rights. Unjust discrimination against a person on the grounds of the difference in origin, race, language, sex, age, disability, physical or health condition, personal status, economic or social standing, religious belief, education or constitutionally political view, shall not be permitted. Measures determined by the State in order to eliminate obstacles to or to promote persons‟ ability to exercise their rights and liberties in the same manner as other persons shall not be deemed as unjust discrimination under paragraph three.‟ However, equality does not always mean granting same things for everybody. In fact, the notion of equality is rooted since the time of Aristotle said, „different things should be treated differently and identical things should be treated identically448. 4.3.2.2 To Prevent Incompetent Deterrence Effect There is also another fact that shows that the Court tends to grant damages in case of injury to life less than in other cases. The study found that the estimated amount of damages in case of injury to life is equal to 700,000 Baht while in case of living claimants who became disabled (crippled) is 1.2 million Baht449. This shows the wrong sign that more severe damage will be compensated less than the less serious one. This will lead to the improper level of care450 and result in the incompetent deterrence effect in the society. The economists view that tort law is

447 Id. 448 “[T]he worst form of inequality is to try to make unequal things equal” (Aristotle) (Ancient Greek Philosopher, Scientist and Physician, 384 BC-322 BC). 449 The Complete Report, supra note 92, at 5-30; See Appendix D. 450 Id. at 5-29.

102

the tool to prevent loss. In contrast, lawyers regard tort as the tool to compensate loss and to create justice451. And even the existence of insurance company, compensation is still one of the functions for deterrence goal 452. Thus, for the maximum benefit of the society, all views of economists and lawyers should be met. Moreover, with the present approach, the third person will not be compensated for their non-pecuniary loss453 nor do they have the right to claim damages for the deceased‟s value of life. In addition, the right to claim damages for non-pecuniary loss of the deceased does not inherit to the heirs. In this way, it does not facilitate the competent deterrence effect at all. 4.3.2.3 To Eliminate the Obstacle in Settlement Without any method guiding the Court in awarding damages for non-pecuniary loss, the lack of such method can obstruct the settlement. Both the claimant and the defendant will be reluctant to accept the amount of damages that the other side proposes since both sides would think that the amount is not reasonable, fair and just. The method of calculation would help the claimant and the defendant to reach a reasonable and fair price for settlement. Whatever the case might be, the person has to pay the interest because at the time of assessing damages for non-pecuniary loss which normally has to be assessed in terms of money will be subjected to interest rate; a money debt according to section 224 and 206454 of the TCCC. The interest rate will be calculated as from the time of tortious act even the injured person was not yet paid for the loss however, the injured person has already lost the opportunity to use his ability to gain revenue455. And it is so true that litigation consumes a great period of time. However, the author finds that interest rate should not be calculated in case of damages for non-pecuniary loss because even if the injured person has already lost the opportunity to use his ability to gain revenue, his revenue is calculated as damages for pecuniary loss already attached with interest rate. In granting interest rate for both damages for pecuniary loss and damages for non-pecuniary loss may lead to over

451 Id. at 2-3. 452 Shavell, Steven (2004), Foundations of Economic Analysis of Law, Cambridge, MA, The Belknap Press of Harvard University Press, p. 261-267 (Shavell insists that even with the existence of insurance companies, compensation still functions for deterrence goal) cited in วรภทร ชยรตน, การก าหนดคาสนไหมทดแทนเพอละเมดในมมมองทางกฎหมายและเศรษฐศาสตร (2552), 3 ดลพาห 76, หนา 79 (Veerapat Chaiyawat, Law and Economics, (2009), 3 Dullaphaha76, p. 79). 453 The Complete Report, supra note 92, at 5-37. 454 TCCC § 224 (A money debts bears interest during default at seven and half percent per annum…); TCCC § 206 (In case of obligations arising from an unlawful act, the debtor is on default from the time when he committed it.). 455 The Complete Report, supra note 92, at 5-46, 5-51.

103

compensation for the injured person. Nonetheless, the inflation must be taken into account in order to reach the real value among change of time. 4.3.2.4 To Ensure the Ceiling of Punitive Damages under the Liability for Damages Arising from Unsafe Products Act The difference between the TCCC and the Liability for Damages Arising from Unsafe Products Act is that the Liability for Damages Arising from Unsafe Products Act expressly mentions about punitive damages. However, the Court may refer to section 438 of the TCCC in granting punitive damages. But in this sense, punitive damages will not be outside the scope of the TCCC. Anyhow, it is noteworthy to discuss about punitive damages expressly provided within this Liability for Damages Arising from Unsafe Products Act. Section11 (2) of the Liability for Damages Arising from Unsafe Products Act provides „In the event the facts indicate that the entrepreneurs produced, imported, or sold the products, although aware that the products were unsafe, or that the entrepreneur was unaware, but committed gross negligence, or had awareness that the product was unsafe after production, yet imported or sold the unsafe product without taking appropriate action to prevent damages from occurring, the court shall be authorized to order the entrepreneur to pay punitive damages in addition to the amount of actual compensation stipulated by the court, which shall be based on the discretion of the court, but not to exceed twice the actual compensation. Consideration will be given to the following circumstances including the severity of the damage sustained by the damaged party, the entrepreneur‟s cognizance of the damages arising from the product, the time period in which the entrepreneur concealed the danger of the product, the actions taken by the entrepreneur after becoming aware that the product was unsafe, the benefits received by the entrepreneur, the financial status of the entrepreneur, efforts to alleviate the damages that occurred on the part of the entrepreneur, and the part the damaged party had in the damages that occurred.‟ This principle resulted from the Federation of Thai Industries‟ request; a request for a method of calculation for damages for „damage to mental state‟ but the request has died in the Council because the Council found that „damage to mental state‟ has no obvious indication which we can made the exact method of calculation and that, when assessing damages, the Court can always refers to the principle of section 438 of the TCCC. But the Council agrees to put the ceiling for punitive damages to prevent the affect on the insurance premium for the business operators456. Nevertheless, the wording of section 11(2) suggests that in awarding punitive damages, the amount of such damages shall be based on the discretion of the Court,

456 Sakda Thanitkul, supra note 417, at 168.

104

but not to exceed twice the actual compensation. However, without the method of calculation, the actual compensation can go up to any figure. This means that the ceiling is useless. This inconsistency can be regarded as a risk for the business operators in which oblige them to continue buying additional insurance. In paying insurance premium, the additional price will be added to the product‟s price resulted in a higher price for the same goods457. Moreover, as the ceiling is not consistent, insurance company will increase premium and may cause the necessary producer to terminate its operation458. In contrast, if we set the ceiling as a fixed figure then what about an injury that causes damages over such fixed ceiling459? From these reasons, the author recommends that the system shall have Guidelines for the Court in order to facilitate the Court in determining the amount of damages for non-pecuniary loss, but the Court still has his full discretion not to follow the Guidelines. 4.3.3 Regarding Economic Method of Calculation 4.3.3.1 Regarding Value of Life As everybody should be equally treated under the law, each person‟s value of life should amount to the same accordingly. Therefore, in case where the law favors damages for bereavement/damages for loss of life (value of life), such damages should be set in a fixed sum. How much should it be? The author would like to refer to the economist‟s way of assessment before making a recommendation. The economist views that the proper compensation is the amount that is equal to the actual loss either damages for pecuniary loss or damages for non-pecuniary loss460. However, because non-pecuniary loss cannot be measured in terms of money, the actual value of non-pecuniary loss does not exist in general market and thus, should be approached by subjective value. This subjective value would provide more justice to the victim than to grant the replacement cost461. In all cases, there is still no unanimous answer for the method of calculation for damages for non-pecuniary loss462. Hence, the author would like to give brief principles on the approach the economists have used to identify the value of a life which are463:

457 See Sandra A. Hoffmann, W. Michael Hanemann, Torts and the Protection of ‘Legally Recognized’ Interests, Discussion Paper, (August 2005), available at www.rff.org. 458 The Complete Report, supra note 92, at 6-8. 459 Id. at 6-19. 460 Id. at 3-16. 461 Id. at 3-33. 462 Id. at 3-34. 463 J. Steven Landefeld and Eugene P. Seekin, The Economic Value of Life: Linking Theory to Practice, (1982), 72 AJPH 555, at 555-566.

105

4.3.3.1.1 Human Capital Approach (HK) Human Capital approach (HK) is the approach that measures the value of a human life by measuring the potential future production of a person which is usually calculated from the expected earnings. But this approach is contrary to the Constitution‟s principle since this approach allows the system to recognize a person with zero value i.e., people who have no income. This approach has no regard on the non-market activities that may be more important to the individual than those economic activities. 4.3.3.1.2 Willingness-to-Pay Approach (WTP) This method is also used by insurance companies in order to calculate damages. The principle equation of WTP of the insurance company is: “Compensation Amount = Sum Insured/Face Value × Loss”464 However, even it is the principle method; it is useable only in case of damages for pecuniary loss because the equation of WTP for damages for non-pecuniary loss will be: “Compensation Amount = Sum Insured/Unidentified Value465 × Loss” Hence, compensation amount for non-pecuniary loss will become so subjective since it depends on personal valuation e.g., how much he thinks his life‟s worth?

In order to adapt this principle in order to calculate damages for non-pecuniary loss, Gregory Mankiw has made some recommendations466. He suggests that WTP can be used to measure the value of a human life by referring to the amount of money that a person is willing to pay for the change of a risk rate that will affect his loss of life/avoid his loss of life. Usually, this approach will refer to the safety decision e.g., the sum paid for insurance premium, the decision in choosing a workplace and etc. However, there is an argument for this approach since the amount of money can also lie on „how much money such person has?‟ Another slightly different suggestion is to measures the value of a human life by referring to the amount of money that a person is willing to pay to avoid additional injury or death467. This approach can be used in finding damages for non-pecuniary loss in case of injury to life and also in case of

464 จารพร ไวยนนท, การบรหารความเสยงและการประกนภย, มหาวทยาลยธรรมศาสตร, 2552, หนา 99 (Jaruporn Waiyanun, Risk Management and Insurance, Thammasat University, 2009, p. 99). 465 Subjective value can have no objective market price therefore it must be assessed by subjective basis. 466 Available at http://en.wikipedia.org/wiki/Value_of_life. 467 P.S. Atiyah, Accidents, Compensation and the Law, George Weidenfeld and Nicolson Ltd, (3d ed. 1980), p. 214.

106

other personal injuries. Nevertheless, to make it fair, the economist has assessed such personal valuation by statistical way as explained below: (i) Value of Statistical Life (VSL)

It came from the thought that in measuring a value of life one must not regard only the economic value that such life has created but must also regard the hedonic value of such life as well468. There is of no suspicion that a life has no actual value. Hence, the economists have approached the value of life by referring to the amount of money that a man is willing to receive in exchange for taking a risk of losing his life or the amount of money that a man is willing to pay in exchange for reducing the risk of losing his life469. The equation for this VSL would be: VSL = Sum/the Risk Reduced For example if you are willing to pay 30,000 Baht for the chance to reduce risk for 0.01 percent, your VSL will be 30000/0.01 = 3,000,000 Baht 470 However, in approaching the value of life, the economists must approach by statistical way since the amount of money that a man is willing to receive/pay is depending on each person‟s valuation. This statistical way is called „econometrics‟471. There are also ways to ask in order to determine the amount of VSL for instance; (a) Revealed Preference Method

This revealed preference method acquires VSL by asking the willingness to pay or receive a sum of money in exchange for the higher or lower risk e.g., in labor market472, this answer will be revealed in terms of wages473. Viscusi and Aldy (2003)

468 The Complete Report , supra note 92, at 3-17. 469 Id.; Schafer, Hans-Bernd and OTT, Claus (2005), Lehrbuch der Okonomischen Analyse des Zivilrechts (Textbook Economic Analysis Of Civil Law), 4., uberarbeitete Auflage, Berlin, Springer., p. 249-250 (Schafer and OTT have suggested the similar approach with VSL (1) how much do you want in order to take more risk (2) how much do you willing to pay to reduce risk multiply by per capita national product) cited in วรภทร ชยรตน, การก าหนดคาสนไหมทดแทนเพอละเมดในมมมองทางกฎหมายและเศรษฐศาสตร (2552), 3 ดลพาห 76, หนา 88-89 (Veerapat Chaiyawat, Law and Economics, (2009), 3 Dullaphaha76, pp. 88-89). 470 Posner, Eric A. and Sunstein, Cass R. (2004), Dollars and Death, University of Chicago Law & Economics Working Paper No.222 cited in วรภทร ชยรตน, การก าหนดคาสนไหมทดแทนเพอละเมดในมมมองทางกฎหมายและเศรษฐศาสตร (2552), 3 ดลพาห 76, หนา 87 (Veerapat Chaiyawat, Law and Economics, (2009), 3 Dullaphaha 76, p. 87). 471 The Complete Report, supra note 92, at 3-18. 472 W. Kip Viscusi, The Value of Life: Estimates with Risks by Occupation and Industry, Discussion Paper No. 422, Harvard Law School, (May 2003), pp. 1-3 (The theoretical foundations dating back to Adam Smith‟s theory of compensating differential are widely accepted. Economists have developed empirical estimates of the tradeoff between wages and fatality risks, which continue to

107

(us) found that elasticity of VSL in labor market is 0.5-0.6 meaning that 1 percent raising wages will increase about 0.5-0.6 VSL. This is because people see safety as goods that they will buy whenever their pay got raised474. In goods market, Viscusi and Aldy (2003) found that VSL is about 0.77-5.13 million USD (in 2000) but there might be a selection bias since people who don‟t drink alcohol tend to put more rate than those who do475. (b) Contingent Valuation Method

This is the method that acquires the answer by directly asking people of his willingness to accept the risk or willingness to pay for risk reduction. There is two ways of asking, one is „how much would you pay in order to reduce risk?‟ and two „how much would you want to receive in order to take more risk?‟. McCaffery et al.(1995) found that the latter question result in higher amount because people love to buy thing in low price but want to sell thing in high price476. This method results in VSL at about 2-3 million USD, researched by Krupnick et al. (2002)477. (c) Meta-Analysis Method

This is the method which evaluates many VSL in combination. Mrozrk and Taylor(2002) found that VSL from this method is at about 2-3 million USD but VIscusi and Aldy(2003) found VSL resulted from this method at about 7 million USD which is a very different figure478. The very interesting thing is that Aldy and Viscusi (2007) found that VSL, by different method, will result in inverted U shape graph479.

dominate the value- of-life literature. The value of life estimates with risks by occupation and industry indicate a value of life of 4.7 million USD for the full sample, 7 million USD for blue-collar males and 8.5 million USD for blue-collar females. This value accounts for the influence of clustering of the job risk variable and compensating differentials for both workers‟ compensation and nonfatal job risks. For the past two decades, US federal agencies have used labor market estimates of the value of statistical life to assess the benefits of health, safety, and environmental regulations. But the argument is that all workers in the same industry or occupational group receive the same value for the job.). 473 The Complete Report, supra note 92, at 3-18. 474 Id. at 3-19. 475 Id. at 3-22. 476 Id. at 3-23. 477 Id. at 3-24. 478 Id. 479 Id. at 3-31; See Joseph E. Aldy and W. Kip Viscusi, Adjusting the Value of a Statistical Life for Age and Cohort Effects, (2008), 90 (3) The Review of Economics and Statistics 573.

108

This means VSL will increase until one point, it will drop because at such point people will not invest much to reduce risk480 and it may be because people can make the maximum of them in their middle age. However, people tend to buy insurance in their old age as much as they do when they were young481.

(ii) Value of Statistical Injury (VSI) See infra 4.3.2.2

(iii) Hand Rule Economists view that reasonable man would pay premium to ensure that his financial status after the accident will not substantially change, compared to his pre-accident financial status. The sum he requests will reveal the sum he would like to receive if he had actually been in the accident. Thus, to compensate something a man does not buy insurance for will be regarded as over insurance which is inefficiency in the eye of economists. But there is still no concrete evidence that people will not buy insurance for their non-pecuniary loss if such insurance is sold in general market482. Therefore, if we stick to this VSL method, under Hand Rule, we will find VSL by asking the same question in (i) but only the answer of a reasonable man will be used in order to find the figure of VSL. Presently, Thailand uses the WTP approach by asking safety decisions e.g., choosing workplace. This results in the value of Thai people‟s life at about 520,000 Baht each. But we find that the value of Thai people‟s life is about 3,600,000 Baht each by HK approach for the person who gains monthly income more than 10,000 Baht a month483. Because this uncertainly in the amount of VSL resulted from different methods chose by the economist, we must seek for the uniform method which should be applied to our legal system in order to guarantee consistency in the amount of VSL.

480 Id. at 3-32. 481 The application form of the insurance company implies that the life/health insurance is still being interesting among older ages as much as the young ones.; See Appendix E. 482 The Complete Report, supra note 92, at 2-19. 483 จกรนทร โกเมศ, คาเสยหายส าหรบความเสยหายทางจตใจตามกฎหมายลกษณะละเมด, (เคาโครงวทยานพนธนตศาสตรมหาบณฑต, คณะนตศาสตร, มหาวทยาลยธรรมศาสตร) (หองสมดสญญา ธรรมศกด มหาวทยาลยธรรมศาสตร) (2553) หนา 70 (Jakarin Kohomase, Damages for Damage to Mental Injury under Law of Torts (Unpublished Master Degree Dissertation Outline, Faculty of Law, Thammasat University) (on file with author) (2010), p. 70).

109

4.3.3.1.3 Linking Human Capital Approach and Willingness to Pay Approach This Linking HK and WTP approach is the method which measures the value of life (or injury) by additional cost a person is willing to pay to avoid financial loss associated with small risk e.g., to pay additional price for a car that has seat-belt and air-bag. But this result in the same problem as WTP because it would also depend on how much such person can afford484.

4.3.3.1.4 Marxist Model The alternative approach is Marxist Model485. This approach monetizes human life into a measureable unit. It sees human as one of the capitals, it suggests that in a capitalist system human labor is a commodity, which is equal to its cost of production called as Consumer Unit (CU). If a CU was destroyed, its value would be down to zero thus, future income is uncountable. The value of CUs varies by a combination of the costs associated with raising such CU to a maturity level where it becomes tradable and commodity in its category. To adopt this principle, Marx-Zilberman developed an equation to find a production cost of a CU which is: Production Cost of a Consumer Unit (CU) = Age of CU × CU's Household Annual Income/Number of CUs in Household486.

4.3.3.2 Regarding Value of Statistical Injury (VSI) Geistfeld (1995) has offered to use Hand Rule, the same practice used to find VSL, to find the value of pain and suffering called as VSI487. But there will be a minor change in the question which shall be used in the survey. The question will be „how much would you willing to pay for the change of a risk rate that will affect the occurrence of an injury/ to avoid the occurrence of an injury?‟ Also, even Cooter (2003) supports Hand Rule, he commented that pure VSL and VSI are different from Hand Rule because they calculated from the answer of a question which came from any people who were directly asked by researchers. But for Hand Rule, only reasonable man will be asked. This is an important issue that could create different VSL and VSI since a reasonable man will not answer by emotion and he is noble enough not to favor for his side in which normal people seem to do the contrary488. 484 J. Steven Landefeld and Eugene P. Seekin, supra note 463, at 559. 485 Stephen G. Kellison, Irwin McGraw-Hill, supra note 93, at 295 (Karl Marx argued that interest is exploitative and results from paying workers less than their just wage. Thus, interest has not existed in certain Marxist and communistic societies.). 486 Available at http://en.wikipedia.org/wiki/Value_of_life (As Cu is one of the capitals, he also developed an equation to find the economic impact on the society because of losing such CU. The equation is Economic Impact on Society or Cost of Penal System Consumer Unit = (Familycost + Statecost) − CUearnings.). 487 The Complete Report, supra note 92, at 3-24. 488 Id. at 3-30.

110

Thus, the author would like to separate Hand Rule out of VSL and VSI. Therefore, under Hand Rule, we can find VSI by asking the same question above stated but only the answer of a reasonable man will be used in order to find the figure of VSI.

4.3.3.3 Regarding Relation between Wealthiness and Healthiness That is to say in economics, where there is an injury and resulted non-

pecuniary loss, the utility level of a person will drop489.

Relation between Wealthiness and Healthiness490

From the graph, „a‟ represents satisfaction line (indifference curve) which is situating in a higher level than „b‟. This means that „a‟ is happier than „b‟ however, every point in „a‟ is having the same level of happiness i.e., a person being less wealthy but more healthy will be as happy as a person being less healthy but more wealthy. The graph compares healthiness and wealthiness as a product in which the indifference curve represents a shopping bag. The products (healthiness and wealthiness) can be perfectly replacing each other because the buyer will not feel indifference between the two since both products have equally satisfied the buyer491. However, back to our point, when the utility level drops from „a‟ to „b‟ in case where there is non-pecuniary loss; the thing that would bring back the utility level back is the perfect compensation. Nevertheless, even if non-pecuniary loss cannot be measured in terms of money and it does not restore the “status quo ante” of the injured person yet, according to the graph, damages can bring about the same happiness level even if it can‟t replace the loss. Furthermore, damages should take

489 Cooter, Robert D. and Ulen, Thomas S, Law and Economics, (4th ed. 2004), (Boston: Pearson Addison Wesley), pp. 311-312 cited in วรภทร ชยรตน, การก าหนดคาสนไหมทดแทนเพอละเมดในมมมองทางกฎหมายและเศรษฐศาสตร (2552), 3 ดลพาห 76, หนา 82 (Veerapat Chaiyawat, Law and Economics, (2009), 3 Dullaphaha76, p. 82). 490 Id. 491 In the author‟s opinion, this graph may be used in order to describe the increasing rate of crimes since people may choose to injure a person (reduce healthiness of others) for money (his wealthiness).

111

into account factors of the injured person. Still, there is a group of people where damages cannot bring back the happiness level i.e., elite people and also for every injured person in case of injury to life492.

4.3.4 Introducing Economic Method of Calculation to Legal System Firstly, we must determine what principle of compensation we should base on, either the principle of full compensation or the principle of fair and satisfactory compensation. The big issue is that if damages for non-pecuniary loss are granted by the sense of satisfaction then, financial position would certainly be one of the factors used to assessing damages493. By this financial position, there are arguments concerning this issue. It is argued that the rich should recover more damages because his lifestyle is far happier than the poor as he affords to buy everything that will pleasure him. On the other side of the arguments, the poor should get more damages for non-pecuniary loss as money has more meaning to the poor than the rich494. None of these arguments should be far more discussed since it is a subjective matter. We should therefore, refer to the principle of full compensation and equality i.e., everybody shall be compensated for what was lost and even it cannot be objectively measured, everybody will be equally compensated. English Court of appeal also agreed with this view as per Diplock L.J. in Fletcher v. Autocar and Transporters495 „I cannot think that it ranks any higher because the plaintiff, before the accident, was a rich man. Had an ordinary working man, who, like the plaintiff, had led before the accident full, active and useful life in his own sphere, sustained the same injuries with the same physical and mental results, he would in my view have been entitled to monetary compensation of the same order as the plaintiff 496‟. Also by French Court which stated “dommage moral” to a claimant is not “une function de la situation de fortune ou de la situation socialé” and “ne peut être apprécié par le tribunal que forfaitairement sans jamais tenir compte d‟une situation sociale”497 not geared to his financial or social situation‟ and „can only be assessed objectively without ever taking social situation into account‟ 498 There are several methods using to determine the amount of damages for non-pecuniary loss in foreign jurisdictions. For instance, giving a range of figure for each

492 Cooter, Robert D. and Ulen, Thomas S, Law and Economics, (4th ed. 2004), (Boston: Pearson Addison Wesley), pp. 311-312 cited in วรภทร ชยรตน, การก าหนดคาสนไหมทดแทนเพอละเมดในมมมองทางกฎหมายและเศรษฐศาสตร (2552), 3 ดลพาห 76, หนา 82-83 (Veerapat Chaiyawat, Law and Economics, (2009), 3 Dullaphaha 76, at 82-83). 493 Hans Stoll, supra note 56, at 47. 494 Harvey McGregor, supra note 367, at 65. 495 [1968] 2 Q.B. 322, 340-341 (C.A.) cited in Harvey McGregor, supra note 367, at 65. 496 Harvey McGregor, supra note 367, at 65. 497 Trib. corr. Lille 28 March 1962, D. 1962. J. 431 Harvey McGregor, supra note 367, at 65. 498 Id.

112

injury called as „Guidelines‟ i.e., the JSB Guidelines of England and the “Schmerzensgeldtabellen” of German. The difference is that the German offers more details, descriptions and arguments for each case and also offers collections indexed in different ways499. Yet, the argument remains is that the award of 10,000 Baht may be regarded as under compensate in the eyes of those wealthy people but it can be regarded as fair compensation for the poor one. The Italian method is a Medio-legal scale based upon a system of percentage point of each category of physical or mental impairment. This method calculates damages for non-pecuniary loss for each injury by referring to medical valuation and also monetary value created by the Court500 which revealed in a form of table. This method was inspired by the French „calcul au point‟ system. There is also an argument against this method that the amount of damages would depend on the decision of medical profession as much as it would depend on the hand of the Judge. Regardless of the arguments, these methods at least create equality under the law. Unlike U.S.A. where the amount of damages for non-pecuniary loss still depends on the jury‟s valuation501. Under the Product liability law, many jurisdictions have one explicit different principle that differs from the general principle of tortious compensation. That difference is to indicate the ceiling for the amount of damages for example, the EC directive allows the member countries to have the maximum ceiling for damages that will be awarded in one incident. However, the ceiling must not be less than 70 million ECU for identical items with similar type of damage502 for instance, Germany has adopted the minimum and maximum ceiling. The ceiling rule is fit for industrial country because the business operators will be able to calculate their risk through the ceiling figure while damages claimed under tortious act will have no ceiling. Basically, the Guidelines and Medio-legal scale have been created by referring to the amount of damages granted in previous decisions and to medical valuation. In order to accomplish equality, principle of full compensation and economic efficiency, economic values of a statistical life are now part of generally accepted economic methodology which continues to dominate the „value of life‟ literature503 therefore, the author would like to recommend combining the economists‟ principles and humanity perspective in order to create a new approach using to determine the amount of damages for non-pecuniary loss. Notwithstanding the above methods, there is another suggestion to use the Scenario Method which sets scenarios for juries for the juries to determine the amount

499 Giovanni Comandé, supra note 256, at 259. 500 Id. 501 Id. 502 Anan Chantara-opakorn, supra note 38, at 154. 503 W. Kip Viscusi, supra note 472, at 1.

113

of damages in each scenario,and then, compares the scenario with the case actually happened. When the case is similar, the amount of damages determined by the juries in the scenario will be used to determine the amount of damages in the actual case. However, it is hard in practice and also expensive. Moreover the scenarios will somehow differ from the case actually happened which, anyway, will lead to discretion matter504. 4.3.4.1 Approaching Economic Method of Calculation of Damages for Loss of Life (Value of Life) First of all, the author would like to introduce „the Market Value of Life‟ by referring to the social process of a tangible property. John Munkman has made the illustration about this social process505. The example is easy, we can see that the goods which sold every day in a shop have their market value because they are being sold every day until the market value becomes attached to the goods therefore the loss is easily converted into monetary term. If it was a rare piece of goods which is not for daily sale, then we might need some experts to reach the valuation. The expert will valuate by comparing the rare piece with another similar rare piece. Now it comes to the historic building which is not for sale, the value could be estimated by the experts who valuate such historic building by comparing it with other buildings that have a market value506. Thus, when we estimate a life as a non-pecuniary loss, we are not estimating its exact value but instead we try to reach the amount that the society at large thinks it is fair and neutral. In the illustration, to be exact, if there is only one car in this world then that car‟s value will not be able to measured, like a life which you only have one chance to use. In contrast, if the cars are being sold in our daily life. They will have their market value, varied by the material, trademark and other factors of the cars (value added). This whole process can be called as „social process‟. A life as a non-pecuniary thing will not be able to have its market value until it is being sold in our daily life either by way of insurance or by the advancement of medical technologies to create a new one that can replace the old life without any distinction, which is, in present, impossible. For now, there is only life insurance, and even it is being sold in our daily life however, the figure is still varied by qualification and type of insurance brought by the deceased. According to the principle of equality that the author shall use to underpin the method of calculation, the different figures of the market value of life are not permitted. Until the day that the figure granted under a life insurance becomes more common, a life still has no market value therefore we might estimate

504 The Complete Report, supra note 92, at 6-24. 505 John Munkman, Damages for Personal Injuries and Death, Butterworths, (6th ed. 1980), pp. 17-18. 506 วรภทร ชยรตน, การก าหนดคาสนไหมทดแทนเพอละเมดในมมมองทางกฎหมายและเศรษฐศาสตร (2552), 3 ดลพาห 76, หนา 81 (Veerapat Chaiyawat, Law and Economics, (2009), 3 Dullaphaha76, at 81) (Where there is no market price, the price will be the Arm‟s Length Price.).

114

the value of a life by comparing its value to another life‟s value507 as illustration case of rare vase. Hence the question we shall ask in a statistical survey for „market value of life‟ is „How much would you willing to pay to save a life/avoid the loss of life of a person who you do not know?” This is almost equal to VSL method. The different is that, this, „market value of life‟, will be determined by „how much do we value other person‟s life?‟ but VSL will be determined by „how much do you value yourself?‟ However, the author would like to scope to only the reasonable men‟s508 answers as to Hand Rule in order to get the fair figure509. Since this is also made by statistical survey, the author shall call this „market value of life‟ as ‘Market Value of Statistical Life’ or ‘MVSL’ 4.3.4.1.1 Pure Economic Method The first possible method is the „Pure Economic Method‟ which has 2 possibilities (1) providing a fixed sum for value of a life by referring to the economics in this regard, we can directly refer to MVSL as a fixed sum for a value of a life. (2) a combining set of equations and principles explained above. The method is, after we got the VSL, we will combine it with WTP equation of the insurance company as follow: With referring to the equation of the insurance‟s company

Compensation = Sum Insured/Value of Such Thing × Loss ----- (1) For damages for loss of life resulted from an injury to life, VSL will replace

the position of sum insured because the sum insured will reveal the figure of „how much you value yourself‟ because „sum insured‟ is the figure that represents how much the injured person value himself.

In this regard, „value of such thing‟ will be replaced by „MVSL‟ as mentioned

about the social process because „value of such thing‟ will reveal the figure of „how much a reasonable man values a life of other‟. The equation will be:

Compensation = VSL/MVSL × Loss ----- (2)

507 Street, Law of Damages, 1962, p. 5 (Everything has value by the social process and market price otherwise it may be evaluated by estimation, comparison or analogy method.). 508 Prachoom Chomchai, Law and Economics: Towards Applying a Common-Law, Alliance to Law Review and Contemporary Resource Development, Faculty of Law ,Thammasat University, p. 45 (Because a reasonable man in the eye of law is a person who will not only protect his own rights but also has a fair regard for the welfare of others. The author will not focus on a reasonable man in economical sense since a reasonable man in economist‟s eye is the person who protects only his own rights and benefits.). 509 Law and Economics: Economic Analysis of Tort Law (Normally people will make their decisions based on their Cost-Benefit Analysis. A reasonable man will choose to do things that bring them good than bad. In economics, it does concern only the decision of a reasonable man because they tend to be outnumbered the non-reasonable man. Therefore, the reasonable man‟s decision can dominate the direction of the goal.) cited in Veerapat Chaiyawat, supra note 506, at 77.

115

Next, the equation of loss, with referring to the core compensation of pecuniary loss, when we lost something, the “status quo ante” is to replace it with the thing exactly same to what was lost. Frequently, if a property was lost, the other property will replace the old one therefore the compensation can be made in term of damages that equal to the production cost of such property. According to the equation of Maxist, the equation to find the price of production for a life (CU) is:

Price of Production of a CU = Age of CU × CU's Household Annual

Income/Number of CUs in Household. ----- (3) The combination of equation (2) and (3) will be the final equation to find

damages for loss of life which is Compensation = VSL/MVSL × (Age of CU × CU's Household Annual

Income/Number of CUs in Household) ----- (4) In addition, the inflation rate shall be updated twice a year for VSL and MVSL

in order to keep up for the real value among change of time. 4.3.4.1.2 Eco-Humano Method According to the illustration of the cars, each car‟s value will also be differed by their „Value Added‟ and by several factors e.g., trademark, its competency and etc. Humans are the same. Even the Constitution guarantees that everybody shall be equally protected and treated under the Law, it does not mean that everybody has the same value. Regarding the principle of equality rooted since the era of Aristotle510, hence, in order to prove that the Constitution guarantees everybody‟s life fairly; the minimum amount of damages for the value of life will be fixed. This minimum standard will be calculated by the same method as the calculation method of MVSL. Then, the value will be differed by such person‟s „Value Added‟, which depends on how much such person can create. Therefore, MVSL represents an objective value of a person and this „value added‟ represents a subject value of a person. Referring to HK approach which evaluates a human life by measuring the potential future production of a person, usually calculates from the expected earnings. This HK approach calculates from the future perspective. However, the author finds that a value of a person should be calculated retroactively i.e., his previous action should determine how he will be treated. Therefore, the author suggests that we should combine the „value of work‟ (Value Added) with value of life in order to determine the amount of damages for loss of life. But this „Value of Work‟ will have to be made by a statistical survey and should be made by the outsider perspective as same as the method of MVSL so, the author would like to refer the „Value of Work‟ as ‘Market Value of Statistical Work’ or ‘MVSW’. Hence, the equation of damages for loss of life (value of life) will be:

510 Supra note 448.

116

Value of Life = MVSL + MVSW ----- (5) The next question is that „how can we find MVSW?‟ As the author suggests finding MVSW by referring to the method of MVSL thus, MVSW will be determined by statistical survey asking „how much would you pay to save this particular person?‟ And to facilitate the survey, the author suggests that we should scope the particular persons into groups by their profession and the benefit he made to the society as follow:

Market Value of Statistical Work511

The „x‟ represents the minimum and maximum that the public suggests to add to „each person MVSL‟. In this method, the Court still has to exercise his discretion of „how much benefit did such person make to the society?‟ But it is an easier question to answer than the question of „how much a life worth?‟ Moreover, damages for loss of life will act as an insurer for the deceased‟s heirs, guaranteed by the law, not the insurance company. 4.3.4.2 Approaching Economic Method of Calculation of Damages for Bereavement

There are also 2 possibilities in assessing the amount of damages for bereavement (1) is to get a fixed sum for damages for bereavement by referring to economics or previous decisions, analyzing what should be an appropriate amount for the relatives from the suffering resulted from loss of a love one. (2) Let‟s remind us of

511 Please note that this is the author‟s illustration, the real survey must be brainstormed in order to reach all groups of people and all level of benefit such person made to the society.

Profession Benefit made to Society

Global Level

International Level

National Level

Local Level

Province Level

District Level

Particular Group Level

Individual x-x x-x x-x x-x x-x x-x x-x Education x-x x-x x-x x-x x-x x-x x-x Political x-x x-x x-x x-x x-x x-x x-x Medical Profession x-x x-x x-x x-x x-x x-x x-x Charity Organization x-x x-x x-x x-x x-x x-x x-x Business Organization x-x x-x x-x x-x x-x x-x x-x

117

the graph in 4.3.3.3, where there is an injury and resulted in non-pecuniary loss, the utility level of a person will drop512.

Relation between Wealthiness and Healthiness513

According to the graph, healthiness and wealthiness can be perfectly replacing each other because both products have equally satisfied the buyer. However, when the utility level drops from „a‟ to „b‟, damages for non-pecuniary loss cannot bring about the same utility level. Thus, the utility level of a person will always drop. Damages can only be used to support happiness but it can never actually replaced non-pecuniary loss. Even more, it cannot be used to support happiness for the injured person in case of injury to life because the injured person is death so, he cannot make any good out of the damages. However, in case of damages for bereavement, the one who entitled to use such damages are the heirs/persons listed under the law (as the case maybe). Therefore, damages can be, at least, used to console them, either mentally or physically. The thing we need to find in order to determine the amount of damages for bereavement is the heir/persons listed under the law‟s utility level that drops because of the deceased‟s death. Thus, when drafting the graph, „a‟ should represent the utility level of the heirs/persons listed under the law in normal situation and „b‟ should represent the utility level of the heirs/persons listed under the law after the deceased‟s death. Then, we shall calculate the percentage of the utility level that drops which will be called as „Utility-Drop‟, and when done by statistical way, it results in „Statistical Utility-Drop‟ or „SUD‟. After that we will multiply UDP by MVSL (deemed to represent a 100 percent of utility level) so that we will get damages that comply with the level of loss. Hence, the equation for damages for bereavement would be:

Damages for Bereavement = SUD percent × MVSL ----- (6)

512 Cooter, Robert D. and Ulen, Thomas S, Law and Economics, (4th ed. 2004), (Boston: Pearson Addison Wesley), pp. 311-312 cited in Veerapat Chaiyawat, supra note 506, at 82. 513 Id.

118

And it will be a fixed sum for everybody for the purpose of equality; no one should be allowed to be sad more than others because of the race, religion or etc. 4.3.4.3 Approaching Economic Method of Calculation of Damages for Non-Pecuniary Loss in Case of Living Claimants

With referring to the method of calculation of damages for bereavement, the

equation used to find damages for bereavement will be applied in order to determine the amount of damages for non-pecuniary loss in case of living claimants as well.

4.3.4.3.1 Determining Damages for Non-Pecuniary Loss according to the Utility Level of Damages for Bereavement

The same approach with the method of calculation and equation of damages

for bereavement according to the utility level 4.3.4.2 shall be applied. The different is that when making the graph for SUD percentage, „b‟ must represent the utility level that drops for each injury. In order to facilitate the Court, claimants, defendants and all stakeholders, the percentage should be converted into tables so that they will be easy for everyone to use. The table should be as below:

Percentage of Statistical Utility-Drop

Types of Injuries Duration 1 Day 2 Day 1 Week 1 Year … Permanently nervous shock,… x x x x x x loss of finger, … x x x x x x loss of beauty,… x x x x x x loss of sexual competency,… x x x x x x loss of an arm,… x x x x x x … x x x x x x

Statistical Utility-Drop514

But in reality, the utility level of each person is not the same, for the purpose of illustration, David Beckham‟s (A famous footballer star) leg and Mr. Nobody‟s leg; it is obviously being calculated from a reasonable man that David Beckham‟s leg is more precious than Mr. Nobody‟s because of its utility level. It can be inferred that „the impairment of life quality‟ of each person resulted from a tortious act cannot be the same. Thus, damages from such loss cannot be the same. Note that we are

514 Noted that all figures, types of injuries and duration are illustrations of the author; no real statistical survey has been referred to.

119

focusing about damages for non-pecuniary loss therefore, in assessing damages for pecuniary loss i.e., loss of income, Mr. David would certainly get more compensation than Mr. Nobody. As to the issue of damages for non-pecuniary loss, it may be even more complicated to measure everybody‟s utility level when assessing damages thus, we may either promote equality by compensating the same amount for everybody or using the tables made by Statistical Utility-Drop in order to assess the minimum amount of damages then, add „Value-Added‟ for each person. The equation would be:

Damages for Non-Pecuniary Loss = SUD percent × (MVSL + MVSW) ------------(7)

This method is possibly used to assess damages for both damages for pure non-pecuniary loss, for primary and secondary victim, and damages for loss of amenities.

4.3.4.3.2 Determining Damages for Non-Pecuniary Loss according to the Value of Life in Pure Economic Method

According to equation (4) in 4.3.4.1.1:

Compensation = VSL/MVSL × (Age of CU × CU's Household Annual Income/Number of CUs in Household)

But in finding damages for non-pecuniary loss in case of living claimants the

equation for loss must be different since the loss is case of living claimant will not be equal to a price of production of a CU. The author, thus, has sought for other methods to determine the actual loss in case of living claimant which are to determine the loss by percentage. In finding such percentage, medical valuation must be used. The author will draw charts in order to demonstrate the source of the percentage figure. The chart is made by factors that used to determine the difference of persons and the injuries i.e., age and seriousness of the injury. The chart, in this thesis, will only be made in an easy and understandable chart in which does not represent the real figure of what the chart‟s scale should be. The real vertical scale that represents the age of the injured person should be scaled in daily scale. The real horizontal scale that represents the health condition of the injured person shall be more detailed and made according to the medical valuation. In this thesis, as only for the purpose of illustration, the charts are:

120

Box 0 represents 100 percent of a human life which is equal to “status quo ante” of a person who can spend his life perfectly until the average age of Thai people.

Box 1 represents a person who suffered injury level 6 at the age of 30 and cannot be fully restored. The percent of loss will be 77.77 percent.

121

Box 2 represents a person who suffered injury level 6 at the age of 60 but can be fully restored at 75 (approximately according to the medical opinion). The percent of loss will be 11.11 percent.

After we have the loss percentage, the author will put the loss percentage into the equation of damages for bereavement (equation (4)). The equation for damages for non-pecuniary loss in case of living claimants would be: Compensation = [VSI515/MVSI516 × (Age of CU × CU's Household Annual Income/Number of CUs in Household)] × Loss Percentage----- (8) Because the charts shall be made by medical valuation517 therefore, all damage to mental state expressly recognized by medical valuation as an illness/abnormality will be compensated under these charts. If not, the loss will be equal to zero which results in no compensation. This is because even emotions are connected to body as per medical science; we should not grant protection for every emotion since it will certainly leads to the lack of freedom in the society. If everybody has the duty of care to take care of others‟ feeling, it would be contrary to the principle of freedom and liberty under the Constitution. Specific emotions can be granted protection under specific laws otherwise only nominal damages may be recoverable as per the Court discretion.

515 VSI created by the same method in finding VSL; See supra 4.3.3.1.2. 516 MVSI created by the same method in finding MVSL; See supra 4.3.4.1. 517 The insurance company also regards medical valuation as a significant matter to compensate the injured person; See Appendix F.

122

This method is also possible to use in order to assess the amount of damages, for both damages for pure non-pecuniary loss, both primary and secondary victim, and damages for loss of amenities. 4.3.4.3.3 Determining Damages for Pain and Suffering Since mental suffering can be cured by money and, like commodities, it can be exchanged for currency518. Hence, it should be compensated. Also, the same underpin used in calculating damages for bereavement should be referred to; that damages for pain and suffering will be an average same sum for everybody for the purpose of equality; no one should be allowed to be sad more than others because of the race, religion or etc. In finding the amount of damages for pain and suffering, the statistical survey must be made in order to find MVSI for each type of injury. The table should be as below: Market Value of Statistical Injuries Types of Injuries Duration 1 Day 2 Day 1 Week 1 Year … Permanently nervous shock,… x-x x-x x-x x-x x-x x-x damage to arm, … x-x x-x x-x x-x x-x x-x damage to leg,… x-x x-x x-x x-x x-x x-x damage to brain,… x-x x-x x-x x-x x-x x-x severe damage to brain,… x-x x-x x-x x-x x-x x-x … x-x x-x x-x x-x x-x x-x

Market Value of Statistical Injuries519

In case of nominal damages for mental state that do not result in any incentive to the people in the society might not need to be perfectly compensated because it consumes more of administration costs than the advantage it would bring e.g., deterrence effect520. It may be granted by the Court‟s discretion, however, it should be guaranteed by the law that it is recoverable since every loss resulted from an intentional act should be compensated provided that the act is regarded as an offensive act for reasonable person for example, spit on one‟s face) 521. This is complying with the sole purpose of nominal damages i.e., to perfect the tort 522 In 518 Harvey McGregor, supra note 367, at 20. 519 Note that all figures, types of injuries and duration of injuries are illustrations of the author; no real statistical survey has been made. 520 Shavell, Steven (2004), Foundations of Economic Analysis of Law, Cambridge, MA, The Belknap Press of Harvard University Press, p. 242) cited in Veerapat Chaiyawat, supra note 506, at 81. 521 Beau Baez III, supra note 62, ¶ 346. 522 Id. ¶ 345; See Cowan v. Flannery, 461 N.W. 2d 155, 159 (Iowa 1990).

123

addition, because this kind of damage does not last long therefore; if the circumstance is outrageous, punitive damages can be the alternative regime in determining the amount of such damages523. Furthermore, in the author opinion, if one day such loss, even it is a non-pecuniary loss, is assessable in term of money i.e., loss of a tooth524, it should be compensated as if it was a pecuniary loss, by paying the actual amount of damages525.

Nevertheless, the method of calculation of damages for non-pecuniary loss shall not bind the Court of the finalized sum of damages i.e., still subject to section 438 of the TCCC. But in moving away from the method, the Court must show the reason that strongly supports such alteration. The same method should be applied to damages for non-pecuniary loss claiming under the Liability for Damages Arising from Unsafe Products Act. The ceiling principle found in the Liability for Damages Arising from Unsafe Products Act should remain since the Act is based on strict liability regime, the fixed figure of such ceiling should be put so that the industry would know the exact highest amount they are risking. Damages over the ceiling, the injured person may always be able to pursuit his claim under tortious ground. This way the law will support both the fairness for the injured person and the promotion of business industry. 4.3.5 Punitive Damages

Punitive or exemplary damages can be granted in order to purely punish the defendant or hold him up for an example526. However, “[T]he word exemplary damages may be a better expression that complies with the intention of the law because it intends to teach the defendant and others not to commit tort and also to teach them of the consequences rather than simply make the defendant pay an extra amount of damages, although the word „punitive damages‟ does precisely describe its effect527”. But with the new method of calculation being introduced, the problem of incompetent deterrence effect will be diminished because we can be certain that the law will provide compensation that complying with the proportion of injury i.e.,

523 Id. at 84. 524 The social process can explain why loss of some organs, even non-pecuniary loss, can be assessed in terms of money; because it can be replaced by today technology where there has the market value for instance, loss of a tooth is damages for non-pecuniary loss that could be objectively assessed in economic sense. 525 Veerapat Chaiyawat, supra note 506, at 84 (With medical sciences and technologies, there is a suggestion to refer the amount of damages to the market price of such organ, but the scope of the organ market is too narrowed; scoped only between relatives. Moreover, it is conflict with good moral therefore, the market price of human organ is almost impossible.). 526 B.A.Hepple, M.H. Mathews, Tort: Cases and Materials, (London: Butterworths), (4th ed. 1991), p. 404). 527 Id.

124

„more serious injury more compensation‟. However, it may not support the goal of eliminating the problem of incompetent deterrence effect in a way that the defendant might preview the exact amount he has to pay for an injury he might well cause. In this sense, the author views that the method of calculation should not be published to the public. The public should know only the criteria that the Court will take into account when granting damages. The question remains is „where there is method of calculation, are punitive damages appropriate in case where the Court grants damages for non-pecuniary loss?‟ 4.3.5.1 Under the Thai Civil and Commercial Code

Under the TCCC, even it does not expressly provide punitive damages; the Court has full discretionary power to grant damages and that includes the power to grant punitive damages. However, in granting damages for non-pecuniary loss, the sum granted, either by the Court discretion or by the method of calculation, are came from presumption of the actual loss. Therefore, in adding punitive damages to damages for non-pecuniary loss, it will allow the claimant to be over compensated; allowing pure punishment in this way will contravene almost every principle which has been evolved for the protection of offenders and the principle of tort compensation. Thus, punitive damages is not appropriate in case where the Court grants damages for non-pecuniary loss unless “[T]he act is offensive, high-handed, malicious, wanton or its like, or in case where the defendant has been calculate to make profit for himself which may exceed the compensation payable to the claimant”528 since the goal of punitive damages should be to prevent unjust enrichment rather than to punish529. And that there shall be no limit for the amount of damages granted under tortious liability except that they are unreasonable530. 4.3.5.2 Under the Liability for Damages Arising from Unsafe Products Act

The Liability for Damages Arising from Unsafe Products Act already expressly provides punitive damages where the requirement(s) under section 11(2) is met. Hence, with the exact conditions required by the law, punitive damages can be considered as appropriate. And since the Liability for Damages Arising from Unsafe Products Act does not explicitly state that punitive damages shall be applied only in case where the Court grants damages for pecuniary loss therefore, it can be applied to cases where the Court grants damages for non-pecuniary loss as well. The different is that, under this Act, there are ceiling for punitive damages i.e., punitive damages cannot be awarded more than twice an actual loss because the Liability for Damages Arising from Unsafe Products Act should also be written in order to support the growth of businesses as well as to guarantee the safety of the consumers.

528 Id. at 407. 529 Id. at 408. 530 Id. at 406.

125

CHAPTER 5

CONCLUSIONS AND RECOMMENDATIONS

5.1 Conclusions

Under Thai law of torts, in case of living claimants, the injured person cannot claim damages for his pure non-pecuniary loss since the present approach of Thai Court is to interpret the TCCC strictly i.e., not to regard pure non-pecuniary loss as a state of damage under section 420 and not to regard pure non-pecuniary loss as a state of compensation under section 446; neither regard pure non-pecuniary loss as injury to body nor health. In this sense, the injured person cannot claim damages for pure non-pecuniary loss neither under section 420 nor section 446 of the TCCC. In addition, the close related person cannot claim damages for their non-pecuniary losses as well since the TCCC has no secondary victim concept to support the claim; only the injured person can claim damages for non-pecuniary loss under section 446. Moreover, in case of injury to life, the injured person’s heirs are not able to claim any damages for the injured person’s prior non-pecuniary loss. The right to claim damages for non-pecuniary loss of the injured person does not automatically inherit. Apart from the inheritability issue, the heirs also cannot claim damages for their bereavement, nor do they have any right to claim damages for the deceased’s life. This leads to the improper level of case since the claimants in case of living claimants tend to have more right under the TCCC and thus, receive more compensation than in case of death. For the product liability law, we must determine whether ‘damage to mental state’ in section 11 of the Liability for Damages Arising from Unsafe Products Act is regarded as a ‘state of damage’ or a ‘state of compensation’. From the explanation of the Council of the State, it can be inferred that the status of ‘damage to mental state’ in section 4 of the Liability for Damages Arising from Unsafe Products Act is similar to ‘state of damage’ in section 420 of the TCCC because the reason for including ‘damage to mental state’ in the definition of ‘damage’ in the Act is to guarantee that ‘damage to mental state’ qualifies as another state of damage. However, section 11(1) of the Liability for Damages Arising from Unsafe Products Act literally enacted as if ‘damages for damage to mental state’ will only be compensated only if it is a consequence outcome of damage to body, health or hygiene. In fact, it is the same interpretation of section 446 of the TCCC which to grant damages for non-pecuniary loss only if it is accompanied with injury to body, health or liberty. Furthermore, with regard to section 11 paragraph 1 which states that ‘in addition to compensation for violations of the Civil and Commercial Code’ the Court is empowered to award damages for ‘damage to mental state’. This leads to the interpretation that section 420 and section 446 of the TCCC does not include ‘damage to mental state’ as a state of damage and a state of compensation therefore damages

126

for ‘damage to mental state’ in the Liability for Damages Arising from Unsafe Products Act which was enacted to fulfill the gap in the TCCC does not accomplish its goal because the Liability for Damages Arising from Unsafe Products Act itself determines as if damage to mental state is outside the scope of protection under the TCCC. Moreover, it cannot be sure whether ‘non-pecuniary loss’ in the TCCC has the same meaning as ‘damage to mental state’ in the Liability for Damages Arising from Unsafe Products Act or not. Nevertheless, section 11 of the Liability for Damages Arising from Unsafe Products Act does not clearly mention whether the heirs’ right to claim for damages for ‘damage to mental state’ is the inheritability of the injured person’s right or, it is the heir’s own right to claim damages for damage to the heirs’ mental state i.e., damages for bereavement or, it is the heirs’ right to claim damages for the value of the deceased’s life. There are three ways to interpret this provision (i) the right to claim damages under section 11(1) is inheritable or; (ii) the heirs have their own right to claim damages for bereavement resulting from the death of the deceased or; (iii) the heirs’ have their own right to claim damages for the loss of the deceased’s life. However, in present approach, in TCCC and the Liability for Damages Arising from Unsafe Products Act do not acknowledge the value of life therefore; they do not grant the right to claim damages for loss of life; the third interpretation is almost impossible. Lastly, the TCCC, the Liability for Damages Arising from Unsafe Products Act and other laws or regulations in tort legal system have no guideline concerning the legal method of calculation. The Court has to apply section 438 of the TCCC and exercise his full discretion in order to determine the amount of damages for non-pecuniary loss hence it results in inequality among injured persons plus the ceiling for punitive damages under the Liability for Damages Arising from Unsafe Products Act cannot reflect the real ceiling for damages. Hence, the ceiling does not really support the growth of business industry. In conclusion, damages for non-pecuniary loss in the law of torts in case of personal injuries still have gaps to be fulfilled since damages for pure non-pecuniary loss and damages for non-pecuniary loss in case of injury to life are not recoverable under the TCCC. Moreover the Liability for Damages Arising from Unsafe Products Act which was enacted in attempt to fulfill this gap has not accomplished its goal because the wording in the Act literally leads to ambiguous meaning. In this sense, the law does not provide full compensation to the victim. Nevertheless, Thai tort legal system still lacks of method of calculation for damages for non-pecuniary loss which leads to inequality among the victims. Of these problems, the author has made her recommendations as detailed in chapter 4 and concluded hereafter.

127

5.2 Recommendations In case of living claimants, from the possible solutions the author has analyzed in Chapter 4, not to cause further confusion and to provide full compensation, the author recommends that we amend the TCCC to cover damages for pure non-pecuniary loss for both injured person and secondary victims. However, the scope of secondary victims shall be made in order to prevent floodgate and malicious lawsuits. In determining the right to claim compensation for pure non-pecuniary loss, damage that raises the right to claim damages for pure non-pecuniary loss can be any damage that result or properly result injury to body or health or efficiently impair one’s quality of life. It is noteworthy to remind that damages for non-pecuniary loss in spouses, normally sexual relationships pleasure intercourse and possibility to have children, are always regarded as a head of damage that entitling the victim to recover for his/her damages531. Pain and suffering will not be specifically enacted as a head of non-pecuniary loss into the provision as it is the type of non-pecuniary loss that normally already attached to injury to body, health or liberty. This revision will also constitute the link between the rights guaranteed by the Constitution and the right to claim compensation which means compensation for every damage against the right guaranteed by the Constitution is recoverable. In exact, the right guaranteed by the Constitution is the right of an individual i.e., every quality aspect of a human life. In case of injury to life, the author recommends that damages for bereavement and damages for loss of life (value of life) should be granted to the heirs. These damages shall be compensated once and for all, and falls into the estate of the deceased so that it will be fairly distributed among heirs. Other emotions are not subjected to compensation since their evidence is subject to the claimant’s testimony. No law based on rational principles can impose damages on each and every act of carelessness. 532 The author scopes the right to claims damages for non-pecuniary loss in case of injury to life to only the heirs to ensure the fairness for both the victim’s side and the tortfeasor’s side since tortious act does not always result from an intentional act, moreover, the defendant cannot face the whole world because of the result of one act. A person more than the heir can claim damages only if he is in a position of secondary victim qualifying as secondary victim and claims damages for pure non-pecuniary loss and one must actually be close in care with the deceased. For the issue of inheritability, even with the reason stated in Chapter 4, the author would not suggest to automatically grant the inheritability of the existing right to claim damages for non-pecuniary loss because such damages cannot compensate the loss of the victim; as he has already died. To grant the inheritability, together with damages for bereavement and damages for loss of life, will lead to over compensation for the relatives, and if found that the tortious act is brutal, the Court still reserves discretionary power to exercise punitive damages as per section 438 of the TCCC.

531 Cour Paris 26 sept. 1956, Gaz .Pal. 1956. 2. 233 cited in Harvey McGregor, supra note 367, at 75. 532 Christian Von Bar, supra note 255, at 1.

128

This same principle of this amendment of the TCCC shall apply in the Liability for Damages Arising from Unsafe Products Act as well and section 11(1) shall be deleted in order not to result further confusion. This approach will also diminish the problem mentioned in 4.1.2.2. Moreover, the definition of ‘damage’ in section 4 shall be amended, but the definition of ‘damages’ should be added to confirm that the principle in the TCCC shall apply in this Liability for Damages Arising from Unsafe Products Act. In this regard, may the author suggest amending the law as follow: Draft of the Provisions to be Amended

Section Present Draft

Section 438 of the TCCC

The Court shall determine the manner and the extent of compensation according to the circumstances and the gravity of the wrongful act.

The Court shall determine the manner and the extent of compensation according to the circumstances and the gravity of the wrongful act with regard to the benefit the injured person has made to the society.

Section 443 of the TCCC

In case of causing death, compensation shall include funeral and other necessary expenses. If death did not ensue immediately, compensation shall include in particular expenses for medical treatment and damages for the loss of earning on account of disability to work If on account of the death any person has been deprived of his legal support, he is entitled to compensation therefor.

In case of causing death, compensation shall include funeral and other necessary expenses. If death did not ensue immediately, compensation shall include in particular expenses for medical treatment and damages for the loss of earning on account of disability to work If on account of the death any person has been deprived of his legal support, he is entitled to compensation therefor. *the author would like to only emphasize on the word ‘shall include’ when translated into Thai.

Section 443/1 of the TCCC

- In case of injury to life, one of the parents, children or spouses of the deceased shall be entitled to claim compensation for non-pecuniary loss. Such damages are the deceased’s damages for loss of his life and damages for bereavement, these damages shall be compensated once and for all, in which

129

the sum received shall fall into the estate of the decreased.

Section 446 of the TCCC

In case of injury to the body or health of another, or in the case of deprivation of liberty, the injured person may also claim compensation for the damage which is not a pecuniary loss. The claim is not transferable, and does not pass to the heirs, unless it has been acknowledged by contract, or an action on it has been commenced. A like claim belongs to a woman against whom an immoral crime is committed

In case of injury to the body, or health of another, or in the case of deprivation of liberty, or mental state that result or properly result injury to body or health or efficiently impair qualify of life, the injured person and/or the person who (1) can prove of the actual close tie relationship in care between him and the injured person i.e., parents, children and spouses of the primary injured person and (2) is efficiently proximate to the accident in time, may also claim compensation for the damage which is not a pecuniary loss. The claim is not transferable, and does not pass to the heirs, unless it has been acknowledges by contract, or an action on it has been commenced. A like claim belongs to a person against whom an immoral crime is committed. *For the purpose on equality treatment guaranteed by the Constitution, any person against whom an immoral crime is committed shall be entitled to recover his/her compensation for non-pecuniary loss as amended supra.

Section 4 paragraph 5 of the Liability for Damages Arising from Unsafe Products Act

Damage means damage arising from an unsafe product, regardless of whether the damage is to life, body, health, hygiene, mental state, or assets. This shall not include damage to the unsafe product. Damage to mental state means pain, suffering, fear, anxiety, sorrow,

Damage means damage arising from an unsafe product, regardless of whether the damage is to life, body, health, hygiene, mental state, or assets. This shall not include damage to the unsafe product. Damages mean damages according to the Thai Civil and Commercial Code and damages that are specifically provided

130

shame or other similar mental damage.

herein.

Section 11(1) of the Liability for Damages Arising from Unsafe Products Act

The Court shall be authorized to demand compensation for damages based on the following, in addition to compensation for violations of the Civil and Commercial Code:

(1) Compensation for damage to mental health, as well as body, health, and hygiene of the damaged party. In the event the damaged party has died, the damage party’s husband, wife, children, or descendants shall have rights to compensation for the damage occurring to mental health.

(2) In the event the facts indicate that the entrepreneurs produced, imported, or sold the products, although aware that the products were unsafe, or that the entrepreneur was unaware, but committed gross negligence, or had awareness that the product was unsafe after production, yet imported or sold the unsafe product without taking appropriate action to prevent damages from occurring, the court shall be authorized to order the entrepreneur to pay punitive damages in addition to the amount of actual compensation stipulated by the court, which shall be based on the discretion of the court, but

In the event the facts indicate that the entrepreneurs produced, imported, or sold the products, although aware that the products were unsafe, or that the entrepreneur was unaware, but committed gross negligence, or had awareness that the product was unsafe after production, yet imported or sold the unsafe product without taking appropriate action to prevent damages from occurring, the court shall be authorized to order the entrepreneur to pay punitive damages in addition to the amount of actual compensation stipulated by the court, which shall be based on the discretion of the court, but not to exceed twice the actual compensation. Consideration will be given to the following circumstances including the severity of the damage sustained by the damaged party, the entrepreneur’s cognizance of the damages arising from the product, the time period in which the entrepreneur concealed the danger of the product, the actions taken by the entrepreneur after becoming aware that the product was unsafe, the benefits received by the entrepreneur, the financial status of the entrepreneur, efforts to alleviate the damages that occurred on the part of the entrepreneur, and the part the damaged party had in the damages that occurred. *Only section11 (2) remains, because the principle in section11 (1) is the same as in the draft of the new section 446, 443 and 443/1 of the Thai Civil and Commercial Code.

131

not to exceed twice the actual compensation. Consideration will be given to the following circumstances including the severity of the damage sustained by the damaged party, the entrepreneur’s cognizance of the damages arising from the product, the time period in which the entrepreneur concealed the danger of the product, the actions taken by the entrepreneur after becoming aware that the product was unsafe, the benefits received by the entrepreneur, the financial status of the entrepreneur, efforts to alleviate the damages that occurred on the part of the entrepreneur, and the part the damaged party had in the damages that occurred.

Finally, with believing that the good foundation of law can create the better-off position of the society as well as to facilitate the growth of economy533 and that everybody should be equally compensated, therefore the system should seek to find the method of calculation regarding economic substances and humanity prospective in order to bring equality to the victims and to balance legal and social science for the best of the society. Of all the possible solutions described in Chapter 4, the author would recommend the ‘Eco-Humano Method’ for damages for loss of life (Value of life). Because this method will create incentive for the people in the society to create their ‘Value Added’ or ‘MVSW’ and in case where such person has no ‘value added’, he still has his minimum value equal to ‘MVSL’. In this connection, the equation for value of life is:

Value of life = MVSL + MVSW

533 Prachoom Chomchai, supra note 506, at 13.

132

For damages for bereavement, everybody shall receive the same amount of damages as a fix sum to ensure that the law recognizes everyone’s right to feel grief only at the same level regardless of their race, social status, financial status and etc. The damages should be calculated based on the percent of the utility level that drops so the equation comes out as:

Damages for Bereavement = SUD percent × MVSL

The compensation in case of living claimants will be divided into two parts. First impairment of quality of one’s life part or similar damage shall be calculated and based on the utility level that drops as well. However, ‘value added’ or ‘MVSW’ shall be used in the method as well because in reality the utility level of each person is not the same, to grant the same amount of damages for everybody without taken into account other factors would be unfair to the injured person and thus, cannot accomplish the principle of full compensation530. Hence, the equation the author recommends in order to calculate damages for non-pecuniary loss in case of living claimant is:

Damages for Non-Pecuniary Loss = SUD percent × (MVSL + MVSW) In case of pain and suffering normally attached to injury to body, health or liberty, everybody shall receive the same amount of damages as a fixed sum as same as the logic given for damages for bereavement. Pain and suffering will be granted according to MVSI; detail stated in Chapter 4. However, if such loss, even if it is a non-pecuniary loss, is assessable in term of money in the future i.e., a lost of a tooth, it should be compensated as if it was a pecuniary loss that is to say paying the actual amount of damages. In all case, because all this method is only the tool to facilitate the Court in using his discretion under section 438 of the TCCC, the method of calculation for damages for non-pecuniary loss shall not bind the Court of the final amount of damages accordingly. Thus, the threshold of non-pecuniary loss is not necessary since the Court can use his discretion to determine the level of damage531. The thing that may help the Court when exercising its discretion is a day-in-a-life video532. That’s how we know how much pain and suffering the victim encountered. In addition, all the figures of MVSL, MVSW, MVSI and SUD percent shall be made by statistical surveys. Plus, the inflation rate shall be updated each year for MVSL, MVSW and MVSI in order to keep up for the real value among change of time and to reveal the intention to match amount of damages with the increasing cost of living533 . But the

527 Veerapat Chaiyawat, supra note 504, at 83. 528 Ulrich Magnus, supra note 193, at 5. 529 Beau Baez III, supra note 62, ¶ 364. 530 Harvey McGregor, supra note 367, at 14.

133

interest rate will not be included in calculating damages for non-pecuniary loss. Nevertheless, with this kind of damages, medical profession maybe reluctant to give treatment to his patient thus some jurisdictions has set the ceiling of damages for medical malpractice 534, also some other specific acts. The same methods should apply to damages for non-pecuniary loss claiming under the Liability for Damages Arising from Unsafe Products Act. The ceiling principle found in the Liability for Damages Arising from Unsafe Products Act should be remained but, as it is a strict liability, the fix figure of such ceiling should be put so that the industry would know the exact highest amount they are risking. In this way, law will promote fairness for the injured person and meanwhile will not obstruct the growth of business. The damages over the ceiling are still recoverable under the TCCC. As to the issue of punitive damages, it may not be appropriate for damages for non-pecuniary loss because damages for non-pecuniary loss is already a presumption sum which will made the defendant have to compensate more than he has to however, the author would not want to eliminate punitive damages from the system since it should be apply for the outrageous cases to hold the defendant as a model not to follows. Remind us all that damages is only a tool to compensate for non-pecuniary loss because there is no better-off assessment however, if there is any tool else to compensate such loss, it shall also be regarded as the alternative for the Court to order compensation to the injured party for instance, the author also recommends that we have the Psychotherapy Support Institution funded by the government. This institution shall provide assistance for psychotherapy for those who in need535. Or the Court may attempt to sanction the wrongdoer with community services instead of punitive damages or, as was seen in Poland, a payment over a suitable sum of money to the Polish Red Cross if demanded by the claimant536. Note also, at all time that if the exactly amount has been provided; people may be more negligent because he knows that the capital of that decision is reduced537 hence, the author in the view that the method, when fixed, should be kept confidential, only guideline for what would be recoverable together with its criteria should be published.

With the entire proposal it should at least underpin the principle of full compensation538 and equality under the law of damages. The author might not make

531 Beau Baez III, supra note 62, ¶ 365. 532 Johannesson, Kerstin Bergh, Stefanini, Stefano, Lundin, Tom and Anchisi, Roberto, supra note 409 (This research shows that Psychotherapy Support Institution can help decreasing the level of Post-Traumatic Disorder after the disaster.). 533 Harvey McGregor, supra note 367, at 6. 534 (Peltzman 1975) cited in Prachoom Chomchai, supra note 506, at 20. 535 As the thesis has recommend to provide full compensation to the injured person however, because of the long legal procedure, the injured person may not be compensated quickly enough therefore there is a suggestion to bring the insurance system into the role, either voluntary or compulsory, or in a form

134

the perfect recommendation, and maybe prices for these non-pecuniary losses are not meant to be put however, the author does hope that the recommendations would at least make a step forward the idealistic way of compensation.

of insurance fund for the loss resulted from the unsafe products. However, concerning damages for non-pecuniary loss, if ever bring the insurance system into play, the actual amount of the loss within § 877(1) of the TCCC should be amended to cover non-pecuniary loss; See วณชดา สาระศร, ประกนภยความรบผดในผลตภณฑ: ศกษากรณสนคาทไมปลอดภย, (2552), 3 ดลพาห, 109 (Vanich-chada Sarasri, Product Liability Insurance: in case of Unsafe Products, (2009) 3 Dullaphaha109).

135

BIBILOGRAPHY 1. Books/Textbooks 1.1 English B.A. Hepple, M.H. Mathews, Tort: Cases and Materials, (London: Butterworths),

(4th ed. 1991). B.S. Markesinis, S.F. Deakin, Tort Law, (4th ed. 1999), (Oxford : Clarendon Press). Baade, Herzog and Wise, Rudolf Schlesinger’s Comparative Law, (6th ed. 1998).

Barbara Harvey, John Marston, Cases and Commentary on Tort, (1994), London: Pitman Publishing.

Basil Markesinis, Michael Coester, Guido Alpa and Augustus Ullstein, Compensation for Personal Injury in English, German and Italian Law, (2005), Cambridge University Press.

Beau Baez III, Tort Law in the USA, (2010), Kluwer Law International. Catherine Elliott and Frances Quinn, Tort Law, Pearson Longman, (6th ed. 2007). Cees Van Dam, European Tort Law, (Oxford: Oxford University Press, 2006).

Christian Von Bar, The Common European Law of Torts Vol 2: Damage and Damages, Liability for and without Personal Misconduct, Causality, and Defences, (2000), Clarendon Press Oxford.

Cooter, Robert D. and Ulen, Thomas S. (2004), Law and Economics, 4th ed., Boston: Pearson Addison Wesley. David Green, Law of Torts, The Cavendish Q&A Series, Cavendish Publishing Limited, (2d ed. 1995). Dennis Campbell, International Personal Injury Compensation, (London: Sweet & Maxwell, 1996).

Donald P. Kommers, The Constitutional Jurisprudence of the Federal Republic of Germany, Duke University Press, 1997.

Glanville Williams, Foundation of the Law of Tort, Butterworths, (2d ed. 1984) Hans Stoll, 11 International Encyclopedia of Comparative Law: Torts Ch. 8

Consequences of Liability: Remedies.

136

Harvey McGregor, 11 International Encyclopedia of Comparative Law: Tort Ch. 9 Personal Injury and Death.

Jean Limpens, Robert M. Kruithof and Anne Meinertzhagen-Limpens, 11

International Encyclopedia of Comparative Law: Tort Ch. 2 Liability for One’s Own Act.

John Bell Sophie Boyron and Simon Whittaker, Principles of French Law, (2d ed.

2008), Oxford University Press, New York. John Munkman, Damages for Personal Injuries and Death, Butterworths, (6th ed. 1980).

Louis R. Frumer, B.L. Benoit Mathew, Personal Injury Actions Defenses Damages Volume 3 Damages to False Arrest, (1957), (New York: Bender & Company Incorporated).

Miller, Product Liability &Safety Encyclopaedia, Division III Liability in Tort, Butterworths.

Nicholas J McBride&Roderick Bagshaw, Tort Law, (London: Pearson Longman), (2d ed. 2005).

P.S. Atiyah, Accidents, Compensation and the Law, George Weidenfeld and Nicolson Ltd, (3d ed. 1980). Patricia D. Barry, Mental Health& Mental Illness, (6th ed.), Lippincott-Raven Publishers.

Peter Handford, Mullany&Handford’s Tort Liability for Psychiatric Damage, (2d ed. 2006), Thomson Lawbook Co.,. Raymond Youngs, English, French, German Comparative Law, (London: Routledge Cavendish), (2d ed. 2007).

Simon Deakin, Angus Johnston and Basil Markesinis, Markesinis and Deakin’s Tort Law, (Oxford: Clarendon Press), (6th ed. 2007).

Shavell, Steven, Foundations of Economic Analysis of Law, Cambridge, MA, The Belknap Press of Harvard University Press, 2004.

Stephen G. Kellison, Irwin McGraw-Hill, The Theory of Interest, (2d ed. 1991). Street, Law of Damages, 1962. Vivienne Harpwood, Modern Tort Law, (London: Cavendish Publishing Limited), (6th ed. 2005). Tony Weir, A Casebook on Tort, (London: Sweet& Maxwell), (8th ed. 1996).

137

Tony Weir, Tort Law, Oxford University Press. W. V. H. Rogers, Ewa Bagińska, Damages for Non-Pecuniary Loss in a

Comparative Perspective, 2 Tort and Insurance Law, (New York: Springer-Verlag Wien), 2001.

W. V. H. Rogers, Damages for Non-Pecuniary Loss in a Comparative Perspective, 2001.

1.2 Thai

จรญ โฆษณานนท, นตปรชญา, พมพครงท 13, (กรงเทพมหานคร: ส านกพมพมหาวทยาลยรามค าแหง), 2547 (Jarun Kosananun, Philosophy of Law, (Bangkok: Ramkumheng University Publisher), 2004).

จรนทร ธานรตน, อนามยบคคล, (กรงเทพฯ:ส านกพมพโอเดยนสโตร), 2523 (Jarin Thaneerat, Personal Hygiene, (Bangkok: OdienStore), 1980). จตต ตงศภทย, ค าอธบายประมวลแพงและพาณชย บรรพ 2, เนตบณฑตยสภา, 2505 (Jitti Tingsapat, The Explanation of Civil and Commercial Code Book II, Thai Bar Association, 1962). จด เศรษฐบตร, หลกกฎหมายแพงลกษณะละเมด, โครงการต าราและเอกสารประกอบการสอน, คณะนตศาสตร มหาวทยาลยธรรมศาสตร, (กรงเทพฯ: ส านกพมพเดอนตลา), (พมพครงท 6, 2550) (Jeed Seadtabud, The Principle of Tort, Faculty of Laws, Thammasat University, (Bangkok: Deauntula Publisher), (6th ed. 2007). จารพร ไวยนนท, การบรหารความเสยงและการประกนภย, มหาวทยาลยธรรมศาสตร, 2552 (Jaruporn

Waiyanun, Risk Management and Insurance, Thammasat University, 2009). ชทตย ปานปรชา, จตเปนเหต, (กรงเทพมหานคร: ส านกพมพคลนกสขภาพ), 2544 (Chutit Panprecha, The Mind is the Reason, (Bangkok: Clinic Suk Ka Parb Publisher), 2001). ประจกษ พทธสมบต, ประมวลกฎหมายแพงและพาณชย ลกษณะละเมด จดการงานนอกสง และลาภมควรได, (กรงเทพฯ: ส านกพมพมสมบต), 2548 (Prajuck Puttisombaed, Civil and Commercial Code Tort, Management without Mandate and Endue Enrichment), (Bangkok: Meesombaed Publisher), 2005). ประชม โฉมฉาย, นตศาสตรและเศรษฐศาสตร: ขอเสนอแนะการน าแนวปฎบตคอมมอนลอวมาใชทบทวนกฎหมายและ

พฒนาการใชทรพยากรในปจจบน, คณะนตศาสตร, มหาวทยาลยธรรมศาสตร (Prachoom Chomchai, Law and Economics: Towards Applying a Common-Law, Alliance to Law

138

Review and Contemporary Resource Development, Faculty of Law, Thammasat University)

ปรด เกษมทรพย, กฎหมายแพง: หลกทวไป, กรงเทพฯ, (พมพครงท 5, 2526) (Pridi Kaseamsub, Civil Law: General Principle, Bangkok, (5th ed. 1983). พจน ปษปาคม, ค าบรรยายประมวลกฎหมายแพงและพาณชยวาดวยละเมด, ส านกอบรมศกษากฎหมายแหงเนตบณฑตย

สภา, พมพครงท 2 (Pod Pudsapakom, Explanation of the Civil and Commercial Code: Tort, Thai Bar Association, 2d ed).

พระวรภกดพบลย, ค าอธบายกฎหมายลกษณะละเมด(ชดเรยนงาย), (กรงเทพฯ: แพรพทยา) (Praworrapakpiboon,

Explanation of the Law of Torts (Nutshell), (Bangkok: Praepittaya Publisher).

เพง เพงนต, ค าอธบายประมวลกฎหมายแพงและพาณชยวาดวยละเมด ความรบผดทางละเมดของเจาหนาทและ กฎหมายอนทเกยวของ, (กรงเทพฯ: จรารตรการพมพ), (พมพครงท5, 2550) (Peang Peangniti,

The Civil and Commercial Code Explanation in Tort, Officer’s Tortious Liability and Other Related Laws), (Bangkok: Jirarat Limited Partnership Publisher), (5th ed. 2007). ไพจตร ปญญพนธ, ค าอธบายประมวลแพงและพาณชยลกษณะละเมดพรอมดวยภาคผนวกตารางความรบผดตางๆคา

สนไหม ทดแทนและนรโทษกรรม, (กรงเทพฯ: ส านกพมพนตบรรณาการ), (พมพครงท 12, 2548) (Paijit Boonyapan, Explanation Civil and Commercial Code: Tort, (Bangkok: Nitibunnakarn Publisher), (12th ed. 2005).

ยงยทธ วรยายทธงกร, ประมวลกฎหมายแพงและพาณชย แปลไทย-องกฤษ พ.ศ.2551, (กรงเทพฯ:ส านกพมพสตรไพศาล), 2551(Yongyud Viriyayudthungkul, The Civil and Commercial Code Translated Thai-English Update 2008).

วชา มหาคณ, หลกกฎหมายละเมดศกษาจากค าพพากษาฎกา, (กรงเทพฯ: สวางสทธการพมพ), (พมพครงท 1, 2523) (Vicha Mahakoon, Tort: Study from Supreme Court Decisions, (Bangkok), (1980).

วชา มนสกล, สรปวชากฎหมายลกษณะละเมด, (กรงเทพฯ: ส านกพมพธรรมสาร), 2537 (Vicha Mahnsakul, Tort in a Nutshell, (Bangkok : Thammasarn Publisher), 1994). ศกดา ธนตกล, ค าอธบายและค าพพากษาเปรยบเทยบกฎหมายความรบผดตอสนคาไมปลอดภย, (กรงเทพฯ: ส านกพมพวญญ

ชน),(พมพครงท2, 2553) (Sakda Thanitkul, The Explanation and Comparative Decisions on Unsafe Product Liability, (Bangkok: Winyuchon Publisher), (2nd ed. 2010)).

ศกด สนองชาต, ค าอธบายโดยยอประมวลกฎหมายแพงและพาณชยวาดวยละเมดและความรบผดทางละเมดตาม

พระราชบญญต, (กรงเทพฯ: นตบรรณาการ), พมพครงท 8, 2551 (Sak Sanongchart, The Explanation of Tort in Civil and Commercial Code and the Tortious

139

Liability According to the Officer Liability Act B.E. 2529, (Bangkok: Nitibunnakarn Publisher), (8th ed. 2008)). ศนนกรณ (จ าป) โสตถพนธ, ค าอธบายกฎหมายลกษณะ ละเมด จดการงานนอกสง ลาภมควรได, (กรงเทพฯ:

ส านกพมพ วญญชน), (พมพครงท 2, 2552) (Sanunkorn (Jumpee) Sodtiparn, Explanation of Torts Manage without Mandate Undue Enrichment, (Bangkok: Winyuchon Publisher), (2d ed. 2009)).

สมยศ เชอไทย, ความรกฎหมายทวไป, (กรงเทพฯ: ส านกพมพวญญชน), (พมพครงท 15, 2551) (Somyod Chueathai, General Principle of Law, (Bangkok: Winyuchon Publisher), (15th ed. 2008)). สษม ศภนตย, ค าอธบายประมวลแพงและพาณชยวาดวยละเมด, (กรงเทพฯ: ส านกพมพนตบรรณาการ), (พมพครงท 6, 2550) (Suksom Suppanit, Explanation of Civil and Commercial Code: Tort, (Bangkok: Nitibunnakarn Publisher), (6th ed. 2007)). เสนย ปราโมช, ประมวลกฎหมายแพงและพาณชยวาดวยนตกรรมและหน ภาค๑-๒, (แกไขเพมเตม ๒๕๐๕), (กรงเทพมหานคร: นตบรรณาการ) (Sanee Pramod, Civil and Commercial Code concerning Legal Act and Obligations, (revised 1982), (Bangkok: Nitibunnakarn Publishing)).

แสวง บญเฉลมวภาศ, ประวตศาสตรกฎหมายไทย, (กรงเทพฯ: ส านกพมพวญญชน), (พมพครงท 2, 2551) [Sawhang Boonchalermvipart, The Thai Legal History, (Bangkok: Winyuchon Publisher), (2d ed. 2008)).

หยด แสงอทย, ความรกฎหมายทวไป, (กรงเทพฯ: ส านกพมพธรรมศาสตร), (พมพครงท 10, 2527) (Yud Sang- utai, General Principle of Law, (Bangkok: Thammasat Publisher), (10th ed. 1984)). หยด แสงอทย, ค าบรรยายหลกรฐธรรมนญทวไป, (พมพครงท 8, 2526) (Yud Sangutai, Explanation of

General Principle of the Constitution, (8th ed. 1983)).

อนนต จนทรโอภากร, กฎหมายวาดวยความรบผดเพอความเสยหายอนเกดจากสนคาทขาดความปลอดภย, โครงการต าราและ เอกสารประกอบการสอน, คณะนตศาสตร มหาวทยาลยธรรมศาสตร, (กรงเทพฯ: ส านกพมพเดอนตลา), 2545 (Anan Chantara-opakorn, Product Liability Law, Faculty of Laws, Thammasat University, (Bangkok: Deauntula Publisher), (2002)).

2. Articles

2.1 English , American psychological association, Spousal Associations between

functional limitation and depressive symptom trajectories: Longitudinal findings from the study of asset and health dynamics among the oldest old

140

(AHEAD), (2011), 30 Health Psychology 153 Available at www.apa.org/pubs/journals/hea.

, Reforming Damages for Non-Pecuniary Loss in English Law: Lots of Action but Little Change, Reading Material, Faculty of Law, Thammasat University, (on file with author).

Anan Chantara-opakorn, Personal Injury and Damages for non-pecuniary loss in the Law of Thailand, Law in the Changing world (Presented at the 4th international conference on “Law in the Changing world” organized by Faculty of Law, Thammasat University) (9 December 2009) Available at law.tu.ac.th/news/2552/Nov/News.pdf. Anna Walsh, Restrictions on Recovery for Pure Mental Harm, (2009), 91 Precedent

9. Francesca Rolla, Filippo Chiaves, Italy, (2006), The International Comparative

Legal Guide to: Product Liability 2006 A Practical Insight to Cross-Border Product Liability Work 174, Global Legal Group Ltd.

io anni Comand , Doing Away with Inequality in Loss of Enjoyment of Life, cited in

John O. Ward, Robert J. Thornton, (2009), 91Personal Injury and Wrongful Death Damages Calculations: Transatlantic Dialogue Contemporary Studies in Economic and Financial Analysis 255, Emerald Group Publishing Limited.

io anni Comand , Some Insights into the Italian ‘Revolution(s)” for Non-Pecuniary Damages Available at www.liber-lab.eu.

Herbert F. Goodrich, Emotional Disturbance as Legal Damage, (1992) 20 Mich L Rev 497.

Ina Brock and Stefan Lenze, Germany, (2006), The International Comparative

Legal Guide to: Product Liability 2006: A Practical Insight to Cross-Border Product Liability Work 144, Global Legal Group Ltd.

Ian Dodds-smith, Micheal Spencer, England & Wales, (2006), The International

Comparative Legal Guide to: Product Liability 2006: a Practical Insight to Cross-Border Product Liability Work 115, Global Legal Group Ltd.

J. Steven Landefeld and Eugene P. Seekin, The Economic Value of Life: Linking

Theory to Practice, (1982), 72 AJPH 555. Johannesson, Kerstin Bergh, Stefanini, Stefano, Lundin, Tom and Anchisi, Roberto

(2006) 'Impact of bereavement among relatives in Italy and Sweden after the Linate airplane disaster', International Journal of Disaster Medicine 110, 4:3.

141

John G. Fleming, Distant Shock in Germany (and Elsewhere), (1972), 20 American Journal of Comparative Law 485.

Joseph E. Aldy and W. Kip Viscusi, Adjusting the Value of a Statistical Life

for Age and Cohort Effects, (2008), 90(3) The Review of Economics and Statistics 573.

Kathie D. Claret, Anthony Paronneau, France, The International Comparative

Legal Guide to: Product Liability 2006: A Practical Insight to Cross-Border Product Liability Work 136, Global Legal Group Ltd.

Kenneth B. Baren, Bystander Emotional Distress: Should Third Parties Recover

Regardless of the Negligent Tort? (2004), 25 J. Legal Med. 351. Marco Bona, Towards the ‘Europeanization’ of Personal Injury Compensation:

Contexts, Tools, Projects, Materials and Cases on Personal Injury Approximation in Europe, (2003), Personal Injury Compensation in Europe, Kluwer, available at www.jus.unitn.it/cardozo/Review/2005/Bona1.pdf.

Praphrut Chatprapachai, Thai Product Liability Law: Preparation for Entrepreneurs,

30 ABAC Journal 30. Ulrich Magnus, The Reform of German Tort Law, working paper no. 127, (April

2003), InDret Available at www.indret.com.

William L. Prosser, Intentional Infliction of Mental Suffering: a New Tort, (1938- 1939), 37 Mich. L. Rev. 874.

W. V. H Rogers, Non-Pecuniary Loss, RIAD Vienna 28 x 05 Available at http://www.riad-online.net/fileadmin/documents/homepage/events/past_events/Vienna/Vortrag%20Rogers%20281005.pdf.

2.2 Thai

วณชดา สาระศร, ประกนภยความรบผดในผลตภณฑ: ศกษากรณสนคาทไมปลอดภย, (2552), 3 ดลพาห, 109 (Vanich-chada Sarasri, Product Liability Insurance: in case of Unsafe Products, (2009) 3 Dullaphaha109).

วรภทร ชยรตน, การก าหนดคาสนไหมทดแทนเพอละเมดในมมมองทางกฎหมายและเศรษฐศาสตร (2552), 3 ดลพาห 76

(Veerapat Chaiyawat, Law and Economics, (2009), 3 Dullaphaha 76). สมบต พฤฒพงศภค, คาสนไหมทดแทนในคดผบรโภค, (2552), 2 ดลพาห 109 (Compensation according to

Consumer Protection Laws, (2009), 2 Dullaphaha 109).

142

สรสทธ แสงวโรจนพฒน, พระราชบญญตความรบผดตอความเสยหายทเกดขนจากสนคาทไมปลอดภยตามกฎหมายเยอรมน

(2552), 1ดลพาห (Surasith Sangvirojanapat, Liability for Damage Arising out of Unsafe Product According to German Law, (2009), 1 Dullaphaha).

อนนต จนทรโอภากร, โครงสรางพนฐานกฎหมายลกษณะละเมด, รวมบทความในโอกาสครบรอบ 60 ป ดร ปรด เกษมทรพย, 2531 (Anan Chantara-opakorn, Foundation of Tort Law, Essays in Honour of Preedee Kasemsup, 1988).

3. Websites 3.1 English

, Adam Smith: The Concise Encyclopedia of Economics (1723-1790),

[online]. Available http://www.econlib.org/library/Enc/bios/Smith.html [Accessed January 2010].

, Glossary of U.S. legal terms and definitions, [online]. Available at http://legaldefinition.us/personal-injury.html [Accessed on January 2010]. , Preamble to the Constitution of the World Health Organization as adopted by the International Health Conference, New York, 19-22 June 1946; signed on 22 July 1946 by the representatives of 61 States (Official records of the World Health Organization, no.2, p. 100) entered into force on 7 April 1948; The definition has not been amended since then. [online]. Available at www.who.int/about/definition/en/print.html [Accessed December 2009]. , The Fatal Accident Act 1976, [online]. Available at

http://www.legislation.gov.uk/ukpga/1976/30 [Accessed December 2009]. Ahmad, Prof. (Dr.) Tabrez, Jamil, Haris and Dasgupta, Papiya, Nervous Shock,

Development & Dilemma: A Comparative Study of UK, USA and Canada (October 4, 2009), [online]. Available at SSRN: http://ssrn.com/abstract=1482619 [Accessed December 2009].

Robert Kreisman, Illinois 'Popcorn Lung' Case Receives $30.4 Million From Cook County Jury - Solis v. BASF Corp. (August 16, 2010) [online]. Available at http://www.chicago-personal-injury-lawyer blog.com/2010/08/illinois_popcorn_lung_case_rec.html [Accessed December 2009]. Stefano Bertone, Italy; Tobacco Case, Studio legale Ambrosio e Commodo (TO)

[online]. Available at www.globaljusticeforum.com/.../product_liab_develop_bertone.ppt [Accessed December 2009].

143

3.2 Thai , ผจดการ (Manager Newspaper Report), [online]. Available at http://www.decha.com/main/showTopic.php?id=3047 [Accessed January 2010]. 3.3 French , Responsibilité du Fait des Produits Défectueux en France [Liability caused by the Defective Product] (Fr.) [online]. Available at http://fr.wikipedia.ord/wiki/responsabilit%C3%A9_du_fait_des_produits_d% C3%A9fectueux_en_France [Accessed May 2011]. François Xavier Testu et Jean-Hubert Moitry, La Responsabilite du Fait des Produits Defectueux [Liability caused by the Defective Product] (Fr.) commentaire de la loi 98-389 du 19 Mai 1998, Avocats assciés a la Cour, [online]. Available at

http://www.testu-avocats.com/docs/French%20Product%20Liabi_2006A5.pdf [Accessed May 2011].

4 Others 4.1 English , Damages for Personal Injury: Non-Pecuniary Loss (Law Com. No.257, 1999) Available at http://www.open.gov.uk/lawcomm/.

, Liability for Psychiatric Illness (Law Com. No. 249, 1998).

, Damages for Psychiatric Illness, (Scottish Law Com., Discussion Paper no. 120, 2002). , West's Encyclopedia of American Law, The Gale Group, Inc., (2d ed. 2008) Available at http://legal-dictionary.thefreedictionary.com/Personal+Injury. Baum, Lothar W., Forum Shopping in Products Liability Actions: A Comparative Between the United States, France and Germany”, (LLM Theses and essays. Paper 117, University of Georgia School of Law) (Available at http://digitalcommons.law.uga.edu/stu_llm/117)(1988)). Michel Cannarsa, Compensation for Personal Injury in France, research and teaching assistant universitỳ Jean Moulin-Lyon 3 (France and Universitá del Piemonte Orientale (Italia) Available at www.docstoc.com and

144

http://www.docstoc.com/docs/3830543/Compensation-for-Personal-Injury-in- France-by-Michel-Cannarsa-Researchp3.

Posner, Eric A. and Sunstein, Cass R. (2004), ‘Dollars and Death’, University of Chicago Law & Economics Working Paper No.222.

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

W. Kip Viscusi, The Value of Life: Estimates with Risks by Occupation and Industry, Discussion Paper No. 422, Harvard Law School, (May 2003). 4.2 Thai , รายงานฉบบสมบรณ การวเคราะหกฎหมายดวยวธทางเศรษฐศาสตร:การคดคาเสยหายในคดละเมด,

โครงการวจยเรองการ วเคราะหกฎหมายดวยวธทางเศรษฐศาสตร, สถาบนวจยรพพฒนศกด, ส านกงานศาลยตธรรม, สถาบนวจยเพอการ พฒนาประเทศไทย, ตลาคม, 2553 (The Complete Report of Law and Economics: Calculating Tortious Damages, Rapee Pattanasak Institute, October, 2010).

, เอกสารประกอบการพจารณา รางพระราชบญญตความรบผดตอความเสยหายทเกดขนจากสนคาทไม ปลอดภย พ.ศ. ...จดท าโดยส านกงานคณะกรรมการกฤษฎกา, สงหาคม, 2550 (Document preparing in the drafting of the Liability for Damages Arising from Unsafe Products Act B.E. …, the Council of State, August, 2007).

จกรนทร โกเมศ, คาเสยหายส าหรบความเสยหายทางจตใจตามกฎหมายลกษณะละเมด (วทยานพนธนตศาสตร

มหาบณฑต, คณะนตศาสตร, มหาวทยาลยธรรมศาสตร) (หองสมดสญญา ธรรมศกด มหาวทยาลยธรรมศาสตร)(2553) (Jakarin Kohomase, Damages for Damage to Mental Injury under Law of Torts (Master Degree Dissertation, Faculty of Law, Thammasat University) (on file with Sanya Thammasak Library, Thammasat University)(2010)).

ชยพฒน นศามณวงศ, ความสมพนธระหวางการกระท าและผลในกฎหมายละเมด (วทยานพนธนตศาสตรมหาบณฑต, คณะ นตศาสตร, มหาวทยาลยธรรมศาสตร) (หองสมดสญญา ธรรมศกด มหาวทยาลยธรรมศาสตร) (2550) (Chaiyapat Nisamaneewong, The Causation Between an Act and its Result in the Light of Tort, (Master Degree Dissertation, Faculty of Law, Thammasat University) (on file with Sanya Thammasak Library, Thammasat University) (2007)). นวลพรรณ งาวสวรรณ, คาเสยหายทางศลธรรม, (วทยานพนธนตศาสตรมหาบณฑต, คณะนตศาสตร, จฬาลงกรณมหาวทยาลย) (2517), (Nowlphan Ngaosuwan, Moral Damages, (Master Degree Dissertation, Faculty of Law, Chulalongkorn University) (1974)).

145

นพฒนกศล อศวชน, ปญหาการก าหนดคาเสยหายทางจตใจ, เอกสารวชาการสวนบคคล, หลกสตรผบรหารกระบวนการยตธรรมระดบสง รนท 13, (หองสมดศาลยตธรรม), (2552) (Niphatkusal Assavachin, Problems Concerning Determination of Aggravated Damages, Personal Academic Document, Program of Senior Executives on Justice Administration Batch 13, (on file with Office of Judiciary library), (2009)).

ภาคภม พองชยภม, ปญหาการก าหนดคาสนไหมทดแทนเพอละเมดตามประมวลกฎหมายแพงและพาณชย, (วทยานพนธนตศาสตร

มหาบณฑต, คณะนตศาสตร, มหาวทยาลยธรรมศาสตร)(หองสมดสญญา ธรรมศกด มหาวทยาลยธรรมศาสตร) (2552) (Paakphum Pongchaiyaphum, Problems Concern Determination of Damages According to Civil and Commercial Code, (Master Degree Dissertation, Faculty of Law, Thammasat University) (on file with Sanya Thammasak Library, Thammasat University) (2009)).

สนกานต สทธเวทศเดช, คาสนไหมทดแทนกรณละเมดทกอใหเกดความเสยหายทางจตใจ, (วทยานพนธนตศาสตรมหาบณฑต,

คณะนตศาสตร, มหาวทยาลยธรกจบณฑต) (กฎหมายเอกชนและกฎหมายธรกจ) (2549) (Sineekan Sitvatisdej, Compensation of Tort for Mental Distress, (Master Degree Dissertation, Faculty of Law, Dhurakij Pundit University Law (Private and Business Law), (2006)).

สวทนา อารพรรค, ความผดปกตทางจต, คณะแพทยศาสตร, จฬาลงกรณมหาวทยาลย (Suwattana Areepak,

Psychatric Illness, Faculty of Medical Science, Chulalongkorn University).

APPENDICES

APPENDIX A

COMPARATIVE TABLES ON THE EVALUATION OF PHYSICAL INJURY

(IP) FOR MICRO-PERMANENT1

1

Translated in Basil Markesinis, Michael Coester, Guido Alpa and Augustus Ullstein, Compensation for Personal Injury in English, German and Italian Law, (2005), Cambridge University press.

Comparative tables on the evaluation of physical injury (IP) for micro-permanent injuries April 2000 (and subsequent updating) Arrenged in decreasing order in relation to the compensation considered on the basis of the indicative tables applied by the courts of the chief toens of Italian regions PERMANENT INVALIDITY 2% Typology of injury according to current forensic medical doctrine Anatomic loss of the left hand ring finger ungual phalange Outcome of partial meniscectomy performed in arthroscopy Scars due to previous laparotomy for every 10 cm of length Outcome of fracture of the right or left foot II, III, IV metatarsus Age 20 40 60 Bologna 7.544.000 6.420.000 4.045.000 Bari 7.544.000 6.420.000 4.045.000 Triveneto 5.412.000 4.888.000 4.138.000 Genova 5.648.000 4.806.000 3.029.000 Cagliari 4.600.000 4.180.000 3.100.000 Medium average of the courts 3.937.000 3.437.000 2.613.000 Ancona 3.600.000 3.300.000 3.000.000 Torino 3.200.000 3.000.000 2.800.000 Aosta 3.765.000 3.204.000 2.019.000 Milano 3.077.000 2.737.000 2.297.000 Napoli 3.077.000 2.737.000 2.297.000 Potenza 3.077.000 2.737.000 2.297.000 Perugia 2.769.000 2.463.000 2.157.000 Statute 5.3.2001, n.57 2.508.000 2.224.000 1.980.000 Firenze 2.800.000 2.240.000 1.680.000 Palermo 2.461.000 2.190.000 1.918.000 Roma 2.210.000 1.841.000 1.350.000 Reggio. C. 2.210.000 1.841.000 1.350.000

PERMANENT INVALIDITY 5% Typology of injury according to current forensic medical doctrine Loss of olfaction Loss of taste Anatomic loss of the two phalanges of the right ring finger Complete monolaterar nasal stenosis Articular relaxation of the knee due to non surgically treated ligamental lesions Outcome of a kneecap breaking without anatomic loses Outcome of the I metatarsus of the left or right foot fracture Age 20 40 60 Bologna 23.536.000 20.027.000 12.620.000 Bari 20.536.000 20.027.000 12.620.000 Triveneto 18.862.000 16.050.000 10.114.000 Genova 13.875.000 12.530.000 10.615.000 Cagliari 13.203.000 11.235.000 7.079.000 Medium average of the courts 11.500.000 10.500.000 8.500.000 Ancona 12.090.000 10.463.000 7.849.000 Torino 11.500.000 9.500.000 8.000.000 Aosta 9.000.000 8.250.000 7.250.000 Milano 9.050.000 8.050.000 7.050.000 Napoli 9.050.000 8.050.000 7.050.000 Potenza 9.050.000 8.050.000 7.050.000 Perugia 9.080.000 8.142.000 6.692.000 Statute 5.3.2001, n.57 8.550.000 7.650.000 6.750.000 Firenze 8.145.000 7.245.000 6.345.000 Palermo 9.000.000 7.200.000 5.400.000 Roma 7.533.000 6.278.000 4.604.000 Reggio. C. 7.533.000 6.278.000 4.604.000

APPENDIX B

SUPREME COURT DECISIONS2

2

Supreme Court decisions cited in รายงานฉบบสมบรณ การวเคราะหกฎหมายดวยวธทางเศรษฐศาสตร: การคดคาเสยหายในคดละเมด, โครงการวจยเรองการวเคราะหกฎหมายดวยวธทางเศรษฐศาสตร, สถาบนวจยรพพฒนศกด, สานกงานศาลยตธรรม, สถาบนวจยเพอการพฒนาประเทศไทย, ตลาคม, 2553, หนา 5-3 (The Complete Report of Law and Economics: Calculating Tortious Damages, Rapee Pattanasak Institute, October, 2010, p. 5-3) [hereinafter The Complete Report].

APPENDIX C

SUPREME COURT DECISIONS3

3

Id. ¶ 5-4.

APPENDIX D

COMPARING DAMAGES GRANTED BETWEEN CASE OF INJURY TO LIFE AND

IN CASE OF LIVING CLAIMANTS (CRIPPLE)4

4

Id. ¶ 5-30.

APPENDIX E

APPLICATION FORM OF AMERICAN INTERNATIONAL ASSURANCE

COMPANY LIMITED

APPENDIX F

CLAIM FORM OF AMERICAN INTERNATIONAL ASSURANCE COMPANY

LIMITED

BIOGRAPHY

Name Isara Lovanich

Date of Birth August 14, 1986

Educational Attainment Bachelor of Laws,

Thammasat University

Member of the Lawyer Council of Thailand

Scholarships Student Exchange,

AFS International Intercultural Programs

Youth Ambassador,

Universal Cultural Exchange

Work Experiences Legal Officer,

MDX Public Company Limited

(November 2009 – Present)