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164 Vol.4No.1:2012

The Non-Pecuniary Damages in Wrongful ActsCausing Bodily Harm and Death:

The Comparative Study on US and Thailand Laws

Worrawong Atcharawongchai1

Liability for non-pecuniary damage is one of the most controversial areas of

tort law that attracts a lot of discussion. There are many academic literatures discussing

whether this non-pecuniary damage should be granted. The proponents claim that

non-pecuniary damages should be given because it is real damage sustained by the

victimswhileopponentsclaimthatthisdamageisnotjustifiedduetothefactthatthe

loss has no monetary equivalents and such damages do not return the victim to his

pre-injury position. There are disagreements in this area of law among countries. Most

countries recognize non-pecuniary damages but differ in the kind and the degree of

damages. This article is designed to explore non-pecuniary damages in Thailand and the

US.Thecomparativestudywillbeusedintensivelythroughoutthearticleinorderto

findoutthedifferencesbetweenbothcountriesandexaminethepossibilityofapplying

andadjustingsomestrengthoftheUSnon-pecuniarydamagestoThailand.Todoso,

1 Judge of the Chiang Mai Provincial Court: LL.B (Thammasat University), Thai Barrister at law, LL.M. in International Trade and Commercial law (University of Durham, UK), LL.M.

in Intellectual Property and Technology law (National University of Singapore, Singapore) funded by Microsoft Scholarship, LL.M. in International and Comparative law with Honors (Chicago-KentCollegeofLaw,US.)(OfficeoftheJudiciaryScholarship)

165ปีที่4ฉบับที่1พ.ศ.2555

thefirst sectionof this articlewilldelineate theconceptof tort law inThailandand

narrow it to the personal injury, both bodily harm and death, which is the focus of this

article. This section also explores in detail the kind and the assessment of non-pecuniary

damages, as well as the problem of the current system. To get more understandable, the

exampleoftheThailandSupremeCourtdecisionontheinjurycausingbodilyharmand

deathwillbeshown.Secondly,theUSnon-pecuniarydamageswillbeexaminedinthe

same way as above. In other words, the kind and assessment of non-pecuniary damages

plus the problem of the existing system will be depicted with the example of the cases

on injury to bodily harm and death at the end of the section. Next, the differences

of non-pecuniary damages of both systems will be described, and the comparative

analysisonwhetherandtowhatextentThailandshouldadoptsomeconceptoftheUS

non-pecuniary damage will be addressed. Lastly the conclusion of this article will be

provided.

NON-PECUNIARY DAMAGES IN THAILAND

The overview of Tort liability in Thailand

This section will be dedicated to the explanation of tort liability that will be

usefulforcomparativestudyinthefollowingsection.Thissectionwillfirstlyshowthe

quick overview about what kind of basis is required for the tort law claim and how the

injured party brings the tort law claim against the tortfeasor. It will then turn to the goal

and the concept of tort law claim for personal injury, especially the injury resulting in

bodily harm and death that is the center of this article. Finally, it will show what kind of

damages can be requested in personal injury claim.

166 Vol.4No.1:2012

Tort liability

In general, the tort liability is established when all three factors are met, that is,

damages, causation and wrongful act. In Thailand, the concept of tort law liability is

determined in section 420 as follows.

Section420“Apersonwho,willfullyornegligently,unlawfully injures the

life, body, health, liberty, property or any right of another person, is said to commit a

wrongful act and is bound to make compensation therefore.”

According to section 420, the elements of tort liability are 1. negligent or willful

2. Unlawful act 3. Damages 4. Damages caused by such unlawful act. If the injured

parties would like to bring the tort law claim against the tortfeasor, they have to show all

of these elements. The tort liability is established only when such all elements are met,

and the defendant will be responsible for compensation. There are subtle issues about

each mentioned element of the tort law liability that are controversial and would need a

lot of time and space to deal with. However, this article focuses on the issue of damages.

Whenthetort liability isestablished, thenextquestioniswhatkind, towhat

extent and how damages will be given. In this regard, the plaintiff has the burden of

proof to show damage he sustained through adducing evidences about the circumstances

and seriousness of the tort. However, although the plaintiff is unable or inadequate to

adduce evidence that he has been actually injured, or he is unable to show how much

he should be given damages, the court, according to section 438, can award the plaintiff

damages as is proper for the circumstances and seriousness of the tort.2

2 Section 438 of Thailand Civil and Commercial Code


Personal injury claim

Personalinjuryisdefinedasthelegaltermforaninjurytothebody,mindor

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

happen to the injured person such as death, bodily harm, defamation, loss of liberty etc.

However, this article will focus solely upon the injury causing death and bodily harm.

Unquestionably, the tort law of Thailand, according to section 420, protects people

from wrongful act causing death and bodily harm. The injured person can bring the

lawsuit against the tortfeasor whose action causes death or bodily harm. The plaintiff

can claim for damages if they can show the elements of tort law e.g. the wrongful

action, causation, and damages. The question often asked is what kind of damages the

injured person can claim for his injury. In this regard, damages can be divided to two

types, pecuniary damages and non-pecuniary damages. The pecuniary damages are the

damages covering the actual monetary expenses and losses in economic value resulting

from the tortious act such as lost earnings, medical expenses, and the reduction in the

market value of property. On the other hand, the non-pecuniary damages are the damages

covering psychic consequences of the injury and cannot be calculated or reduced to the

monetaryvaluesuchaspainandsuffering,disability,disfigurement,lossofenjoyment.

However, the damages injured parties can claim are different for bodily harm and death.

In the case of death, the types of damages are the following: funeral or other

necessary expenses, medical expense and loss of earning prior to death4, compensation for 3 Wikipedia see http://en.wikipedia.org/wiki/Personal_injury4 Section 443 “In the wrongful act causing to death, compensation shall include funeral and

other necessary expenses If death did not ensue immediately, compensation shall include particular expenses for

medical treatment and damages for the loss of earning on account of disability to work If on account of death any person has been deprived of his legal support, he is entitled to

compensation therefore.

168 Vol.4No.1:2012

the third party for loss of the injured party’s services5, compensation for the third party for

loss of the legal support.6Sincethecivilandcommercialcodeprovideonlythesesixtypes

of damages in the injury causing death, the granted damages may not cover all the harms that

the decedent or the person in relationship with the decedent have sustained. For example,

the damages sustained by the decedent such as decedent’s loss of earning in the future or the

pain and suffering from the injury prior to death are not included in the actionable damages.7

Also, some damages sustained by the person in relationship with the decedent such as pain

and suffering or losses of consortium are unable to claim under the Thailand law.8

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

damagescanberecovered:theexpensesandthedamagesfortotalorpartialdisability

to work, for the present as well as for the future9, compensation for the third party for

loss of the injured party’s services10, and non-pecuniary damages11. The “expenses” is

5 Section 445 “In the case of wrongful act causing death, or causing injury to the body or

health of another, or in the deprivation of liberty, if the injured person was bound by law to perform service in favor of a third person in his household or industry, the person bound to make compensation shall compensate the third person for the loss of such service.

6 Section 443 of Thailand Civil and Commercial Code7 Thailand Development Research Institute .2010. “Economic Analysis of Law: the Assess-

mentofDamagesinWrongfulAct”theproposaltotheofficeofjudiciaryofThailandp.4-158 Ibid 9 Section 444 “ In the case of an injury to the body or health, the injured person is entitled to

receive reimbursement of his expenses and damages for total or partial disability to work, for the present as well as for the future

If at the time of giving judgment it is impossible to ascertain the actual consequences of the injury, the Court may reserve in the judgment the right to revise such judgment for a period not exceeding two years.”

10 Section 445 of Thailand Civil and Commercial code11 Section 446 “In the case of injury to the body or health of another, or in the case of depriva-

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


broadlydefinedandincludeanyexpensesthatinjuredpartyhadpaidduetotheinjury.

Significantly, the plaintiff normally claims for themedical expenses that have been

incurred from the wrongful act, including the medical expenses in the future in the case

that continuous medical treatment is needed.12 However, other necessary expenses are

claimable such as the expenses for hiring the person taking care of the injured, traveling

expenses of care takers.13Nevertheless, the SupremeCourt ofThailand rejected the

claim for parent’s lost earning due to taking care of their son and held that such expenses

were out of the scope of “the expenses”.14 In terms of the damages for total or partial

disability to work, it means the loss of earning that the injured party is suffered from the

injury.15 This type of damage may be totally lost in a case that the injured is unable to get

back to work such as in the case of quadriplegic.16 Because of the name of the damages,

it may be confused with the disability that is non-pecuniary damages, but, in fact, it is

distinct damage in which the injured party can claim both separately.17

The non-pecuniary damages in wrongful act

In Thailand, non-pecuniary damage is granted only for some injuries, namely

bodily harm and deprivation of liberty18. As mentioned, the scope of this article is

devoted to the personal injury case; the non-pecuniary damages for injury to the

libertyare thus reserved for thenext study.Thispartwill explain thedefinitionand

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

12 The Decision of the Supreme Court No.4859/253813 The Decision of the Supreme Court No.3345/253814 Ibid15 The Decision of the Supreme Court No.516/255116 Ibid17 The Decision of the Supreme Court No.6303/254718 Supra Note 11

170 Vol.4No.1:2012

the problem resulting from the current mechanism of the non-pecuniary damages in

Thailand. This part eventually will give the example of the decision of Thailand court

regarding the case of wrongful act causing injury to death and bodily harm in order to

provide comprehensive understanding on the non-pecuniary damages in Thailand.

The meaning of the non-pecuniary damages is still controversial due to the fact

that theCivilandCommercialCodedoesnot identify theexactdefinitionand types

of the non-pecuniary damages. However, many scholars define the non-pecuniary

damages as the damages that cannot be calculated in the monetary value.19 In addition,

thedecisionoftheSupremeCourtofThailandcanbroadentheunderstandingofnon-

pecuniary damages because it names many types of non-pecuniary damages such as the

damages regarding loss of emotional feeling and enjoyment due to the disability caused

by wrongful act20, pain and suffering21, disfigurement22. Each type of non-pecuniary

damages can be claimed separately. For example, the plaintiff who got disability caused

by the wrongful act can claim both the pain and suffering and the loss of enjoyment.23

In assessment of damages, the plaintiff generally has the burden of proof to

show the damages sustained, both pecuniary and non-pecuniary damages. The court

will determine the damages according to the evidence of damages shown. However,

although the plaintiff is unable to prove the damages or show the extent of damages

sustained, the court, pursuant to section 438, has discretion to determine the damages

19 Suphanit, Susom.2007. “Tort law” Bangkok: faculty of law, Chulalongkorn University p.26520 The Decision of the Supreme Court No.247/199521 The Decision of the Supreme Court No. 3344/199022 The Decision of the Supreme Court No.128/197923 The Decision of the Supreme Court No.247/2538, 75/2538


according to the circumstance and gravity of the wrongful act.24 The failure of plaintiff

to show damage sustained is more aggravated in the case of non-pecuniary damage

than pecuniary damages due to the fact that it is very hard and subjective to assess to

what extent the injured party sustained. This problem in the current mechanism merits

consideration in the subsequent part.

The problems with the current mechanism of non-pecuniary damages

Liability for non-pecuniary damages is the area of damages which attracts a

lot of critics from not only scholars in Thailand but also worldwide. The critical issue

on the non-pecuniary damages where the scholars have spent a lot of time and effort

for discussion is the issue whether the non-pecuniary damage should be granted. This

article will take care of such issue in the last part subsequent to comparative study on

non-pecuniarydamagesinbothUSandThailand.Forthispart,thearticlewilldelineate

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

on the personal injury causing death and bodily harm in Thailand.

First of all, non-pecuniary damage, according to section 446, is entitled to the

party only in the case of bodily harm but negated in the case of death. The absence of

non-pecuniary damages in the case of injury to death brings about the situation that the

injured party is left unfairly uncompensated. An anomalous outcome may arise due to

the fact that the damages in the case of bodily harm are likely to be greater than the

damages in the case of death. This will distort the motivation of people to utilize the

24 Section 438 “The court shall determine the manner and the extent of the compensation ac-cording to the circumstances and the gravity of the wrongful act

Compensation may include restitution of the property of which the injured person has been wrongfully deprived of its value as well as damages for any injury caused.”

172 Vol.4No.1:2012

proper care because the reasonable people will lack the motivation to take more care to

avoid death than to avoid bodily harm.25

Secondly,inthecaseofdeathwheretheinjuredpartyisnotimmediatelydead,

hemaybeinflictedwithpainandsufferingpriortodeath.Nonetheless,ThailandCivil

and Commercial law does not provide the injured party with the right to claim such pain

and suffering damages prior to death. This may constitute the unfairness to the injured

party and similarly, in economic sense, lead to the distortion of proper motivation.

Thirdly, the death or bodily harm of the injured person may cause serious

emotional harm to the spouse, child, or other person in close familiar relationship with

the deceased. However, the Civil and Commercial code stipulates the non-pecuniary

damages solely to the injured person but does not allow others to claim for non-pecuniary

damages they suffer from the beloved’s or the family member’s death.26 This seems to

be unfair for them suffering without compensation.

Finally, the problem of the assessment of non-pecuniary damages is also

immense. The non-pecuniary damage is evaluated by the court’s discretion which

basically is utilized to determine such damage according to the circumstance and the

degree of wrongful act; however, the amount of damage is circumscribed by the requested

amount in the plaint by the injured party. The result that the amount of the granted non-

pecuniary damages is incongruent among the courts, despite similar fact patterns, and

sometimesinsufficienttoadequatelycompensatetheinjured,isunavoidableduetothe

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

25 Thailand Development Research Institute .2010. “Economic Analysis of Law: the Assess-mentofDamagesinWrongfulAct”theproposaltotheofficeofjudiciaryofThailandp.6

26 The Decision of the Supreme Court No.780/2502


fully grant damages only at the requested amount.

Thailand Supreme Court decisions regarding wrongful act causing death

and bodily harm

To be more comprehensible on the non-pecuniary damages in Thailand, this

section will compare two court decisions on the wrongful act causing death and bodily

harm respectively. For the sake of easier understandability, the two cases both involve

the same fact of a car accident resulting in bodily harm in one case and death in the

other.

ThedecisionoftheappealcourtNo.1011/2549isthemostrecentnotoriouscase

regarding the wrongful act causing death. In this case, Piyada, the deceased, studying in

the last year of the faculty of management, Assumption University, was waiting for the

defendant’s omnibus at the bus stop. The bus later approached and took Piyada; however,

the driver, the defendant’s employee negligently drove off hastily without shutting the

automatic door. As a result of the propulsion of the omnibus, Piyada fell off the car and

her head was violently crushed against the street, subsequently causing her death. Her

father brought the lawsuit against the defendant claiming for such statutory damages

as funeral, other necessary expenses, medical expense, and loss of the legal support in

Piyada’s life expectancy of 20 years. The total claiming damages is 12,081,211 bahts.

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

plaintiff10,747,000bahts.Thisamountofdamagescamemainlyfromlossofthelegal

support in which the trial court determined as 46,000 per month in 20 years, totaling

11,040,000 (46,000×12×20), plus funeral or other necessary expenses and medical

expenseprior todeath,reducedthepaid insurancecompensation750,000bahts.The

174 Vol.4No.1:2012

defendant appealed. One of the appealed issues is that the loss of legal support was

excessive. The appeal court opined that the deceased is well educated, knowledgeable

inbothEnglishandJapaneselanguage,andhadaplantostudyinJapan,which,ifshe

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

Appealcourtaffirmedthetrialcourt’sdecisionthatthelossoflegalsupportshouldbe

46,000bathsamonthin20years.ThiscaseisnowpendingintheSupremeCourt.

IntheSupremeCourtdecisionNo.6303/2547,thefactinthiscaseissimilarto

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

negligentlydroveoffthebusstopsoabruptlythatKeerati,attheageof6,fellofthe

bus and was run over by the omnibus, causing him disability and serious injury. His

father brought the lawsuit against the driver and his employer claiming for damages of

12,626,200.38 bahts, composed of the medical expenses and the damages for total or

partial disability to work, for the present as well as for the future, and non-pecuniary

damages. In the respect of non-pecuniary damages, the court reasoned that, according

totheexpert’stestimony,Keeratiwillbedisabledforeverandheevencannotexcrete

himself. This harsh result ruined his life and future. The plaintiff, therefore, is eligible

for, according to section 444, for the damages for pecuniary lost earnings and the pain

and suffering caused by such disability. These damages are not overlapping and plaintiff

is entitled for both of them in aggregate of 6,900,000 bahts. Plus the medical and other

expenses,thetotalamountofdamagesinthiscaseis8,611,370.50bahts.

ItshouldbenotedthatthefirstcaseinvolvingdeathistheAppealCourtdecision

whilethesecondcaseinvolvingbodilyharmistheSupremeCourtdecision.Thereason

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

theyaresomeofthemostrecentdecisionsonnon-pecuniarydamages.Thefirstcase


does not deal with the non-pecuniary damages due to the fact that such damage cannot

be claimed by law; therefore, the plaintiff does not request it on the claim and the court

does not need to mention it in its decision. The second case, on the other hand, raised

the issue of non-pecuniary damages as the law permits. However, it should be noted that

theSupremeCourtgrantedboththedamagesforlostearningsandpainandsuffering

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

beaddedthat theSupremeCourt in thesecondcasegrantednon-pecuniarydamages

throughthediscretionbutitisnotobviousinthedecisionabouthowtheSupremeCourt

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

that thedisabilitywill last foreverand ruinedKeerati’s life, sosuchamountofpain

and suffering should be granted. The last notice should be given that most of the cases

of bodily harm is normally granted more total damages than the case of death because

the former provides more types of claimable damages than the latter. It also requires

more continuing medical expenses than injury involving death which involves solely in

claimingforthemedicalexpensepriortodeath.Forthisreason,thefirstcaseseemsto

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

the substantial amount of damage is caused by defendant’s egregious wrongful act.

The fact that the accident is related to the omnibus that is regarded as the major public

transportation of people in Bangkok, Thailand attracted a lot of public criticism about

badly negligence of the driver, and raised the concern about the safety of the everyday

bus commuters. Furthermore, the deceased is the innocent student with future prospect

if she can live longer. Consequently, although the precedents show that the courts have

been reluctant to grant the high amount of loss of legal support in the case that the

deceased is only student and has no job at the time of death, the Appeal court in this

case indirectly and enormously increase such loss of legal support, in order to impliedly

punish the defendants for their negligently egregious act. This method of increasing loss

176 Vol.4No.1:2012

of legal support may be viewed as the implied punitive damage. Nonetheless, this case

stillhastowaitforthereviewoftheSupremeCourt.

NON-PECUNIARY DAMAGES IN THE US

Before exploring the conceptof theUSnon-pecuniarydamage, it shouldbe

notedattheoutsetthatthereisahugedifferencebetweenThailandandUSlegalsystem,

whichmay bring about conflicting idea about the concept andmethod of the non-

pecuniarydamages.Firstly, itshouldbenotedthat theUSlawonthenon-pecuniary

damages is, unlike Thailand, not uniform rule throughout the states. Different states

have their own rule on the non-pecuniary damages. For example, some states may allow

recovering loss of consortium while others may not. Therefore, this article will provide

the general concept about the non-pecuniary damages, and if possible, will delineate the

difference of each concept of non-pecuniary damages among the states.

AnothernoticethatshouldmeritourconsiderationisthattheUSlegalsystem

is so distinctive in that the jury, as the trier of fact, plays a key role in determining the

damages. The judge may give the jury instruction about how to impose each kind of

damages and has limited power to decrease or increase amount of damages granted

by jury, except for the case that such amount is so much or little that it shocks the

conscience.27TheroleofjuryindeterminingthedamagesintheUSismuchdifferent

from Thailand where the judge has the sole power to grant damages. As a result, when

the problem of assessment of non-pecuniary damages is mentioned, it should be kept

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

27 Shoben, W Elaine, Tabb M. William, and Janutis M. Rachel. 2007. Remedies: Cases and Problems 4th edition Foundation Press p.556


may constitute the different problem as it will later be discussed.

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

andUS.InThailand,asmentioned,theinjuredpartywillbegrantedtheamountofnon-

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

US,basedontheresearchonavarietyofcases,theinjuredparty’slawyercanintroduce

the range of the possible amount of non-pecuniary damages; however, the jury is not

circumscribed on that amount and can independently grant more or less than that. This

differenceinsomesituationsmayinfluenceontheamountofgranteddamages.

In this section, I will focus on non-pecuniary damages in the injury causing

bodily harm or death. To do so, I will divide the non-pecuniary claims into two parts,

bodily harm and death, and further divide into the claim by the injured party and the

third party. The article will later explain how the assessment of non-pecuniary damage

ismade.Then,itwillproposepossibleproblemsintheUScurrentlawonnon-pecuniary

damages. For the sake of comparative study, the cases with similar facts to the above-

mentioned Thailand case will be shown.

Non-Pecuniary damages

Non-pecuniarydamagescanbedefinedasalosswhichisintangibleandwhich

lack the market value.28 In theUS, each statehas their own state common tort law,

which may have the different concept of the non-pecuniary damages. In fact, each state

may describe or identify the different types in different ways. Given the literature,

28 DonnaBenedek1998“Non-PecuniaryDamages:Defined,Assessed,andCapped”32R.J.T.607

178 Vol.4No.1:2012

court decisions and scholar opinions, the non-pecuniary damages in many states

are collectively called as pain and suffering; however, other states provide the

non-pecuniary damages in broad sense where the pain and suffering is regarded as

merely one of the non-pecuniary damages. There are many categories of pain and

suffering; however, Viscusi divides them into four following categories.

“1)Tangiblephysiologicalpainsufferedbythevictimatthetimeofinjuryand

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

2)Theanguishandterrorfeltinthefaceofimpendinginjuryordeath,bothbefore

and after an accident.

3)Theimmediateemotionaldistressandlong-termlossofloveandcompanionship

resultingfromtheinjuryordeathofaclosefamilymember,soknownintheUS

as “loss of consortium”

4)Mostimportant,theenduringlossofenjoymentoflifebytheaccidentvictim

who is denied the pleasures of normal personal and social activities because of

his permanent physical impairment, a loss of which may not be perceived by

individuals who suffer brain damage.” 29

Non-pecuniary damages in injury causing to bodily harm

In the case of injury causing bodily harm, the physical pain and suffering damages are

generally recognized as personal damages in personal injury cases, and thus the complaint does

not need to allege pain and suffering in order to present evidence of it.30 Apart from the physical

pain and suffering damages, most states also enable the injured party, although different in a

29 Viscusi, W. Kip. (1996) “Pain and Suffering: Damages in Search of Sounder Rationale” Michigan Law and Policy Review 1: 141-177

30 Supra note 20 p.527


different kind of damages, to separately claim other non-pecuniary damages such as the mental

painandsuffering,lossofenjoyment,disfigurement,disability Richarson v Chapman, 676

N.E.2d 621,626(Ill.1997), Frankel v United States, 321 F.Supp 1331.

Regarding the third party claim, the derivative action for loss of consortium is

widelyavailableforspouses.LossofconsortiumisdefinedinGate s v Foley, 247 So.2d

40 (Fla.1971) that “the companionship and fellowship of husband and wife and the right of

each to the company, cooperation and aid of the other in every conjugal relation. Consortium

means much more than mere sexual relation and consists, also of that affection, solace,

comfort, companionship, conjugal life, fellowship, society and assistance so necessary to

a successful marriage.” For other family relationship, however, it is not consistent among

thejurisdictionsaboutthescopeoflossofconsortiumclaim.Somejurisdictionsdoesnot

recognize a child’s right to recover consortium damages for injured parent while other

jurisdiction does. By the same token, some jurisdictions grant parents for the consortium

claim, or loss of society against those who injure their child while others do not.31

In addition the loss of consortium, the third party, in some states, may claim the

mental distress once she is suffered by witnessing an accident involving a loved one, or

once she is terrorized by a situation threatening serious injuries but none results.32 The

general rule is that the third party can claim for negligently caused distress on condition

that there must be a physical injury and the third party must be in the zone of danger,

although in a few states the zone of danger is not required.33

31 Ibid p.52832 Ibid p.68833 Ibid p.689

180 Vol.4No.1:2012

Non-pecuniary damages in injury causing to death

In the case of injury causing death, although there are a lot of discussions against

pain and suffering in the case of death, it is generally recognized that the claim for the

decedent’s pain and suffering prior to death is allowed through two major Acts.

Firstly,theSurvivalActsgenerallyhaveprovidedthatcertainofadecedent’s

causes of action survive the death and become the claims of the estate which the

decedent’s personal representative may pursue. This Act is designed for preventing

the situation in which a decedent had initiated a legal action but, due to the death of the

plaintiff, the case would be dismissed.34 This practice was unfair to the decedent and

her heirs and resulted in an undeserved windfall to the defendant.35 The application of

survival statutes to cases handles this problem by which the subsequent death will not

affect the pre-existing claims for pain and suffering. Damages under these survival acts

have ranged from medical expenses resulting from the injury, lost income pain and

suffering prior to death as well as, in some jurisdictions, loss of enjoyment of life.36

Despite the fact that most states widely recognize the claim for the pain and suffering

damages prior to death, with the exception in few states, most of them do not recognize

the non-pecuniary damage claim subsequent to death due to the fact that the injured

is already dead and the granting such damages to the decedent’s heir is undeserved

windfall.37

Secondly, regarding the third party claim, theWrongfulDeath statutes have

34 Wex S. Malone.1965. “The Genesis of Wrongful Death”, 17 Standard Law Review 104335 Ibid36 Ibid 37 Supra note 18 p.6-2


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

spouse and children.38UnderthisAct,Damagesisconsistedoflostsupport—income

of the decedentwhichwould have benefitted the plaintiff—and loss of consortium.

However, the scope and kind of damages may be varied in different states. Like the case

of injury causing to bodily harm, the third party also can claim for the mental distress

from witnessing an accident involving a loved one under above-mentioned condition.

Assessment of Non-pecuniary damages

Itisverydifficulttoassessthepainandsufferingdamagesduetothefactthat

it is subjective, fact dependent with no reference on the market value.39 The extent of

the pain and suffering damages seems to rely on how much the injured feel or perceive

thepain.Alotofdiscussionismadetofindoutthemostreliablemethodologytoassess

suchdamages.IntheUS,theassessmentofthepainandsufferingdamagesisassigned

to the jury. The plaintiff’s counsel may show the evidence of pain and suffering through

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

physicalpain.Shemayconvincethejurybyusingargumentsabouttheactivitiesthat

the plaintiff will never again be able to engage in, or the pain she will feel, minute

by minute, hour by hour, and day by day see Richardson v Chapman, 676 N.E.2d

621,626(Ill.1997), Frankel v United States, 321 F.Supp 1331. Consequently, the jury’s

assessment of damages will be based upon the credibility of the victim, her family, and

expert witnesses called by the parties.40

38 David W. Leebron.1989.“Final Moments: Damages For Pain and Suffering Prior to Death” 64 New York University Law Review 256

39 Ibid40 Ibid

182 Vol.4No.1:2012

However, in many jurisdictions, the courts have refused two kind of non-

pecuniary assessment. Firstly, the court does not permit the golden rule in which the

assessment based on asking jury to award damages in an amount they would want for

theirownsufferingoritsavoidanceinthedisability,disfigurement,physicalpain,and

mental suffering.41Secondly,thecourtofmanyjurisdictionalsodeclinetheperdiem

argument in which the plaintiff’s attorney propose a certain amount per day of suffering

and then have the jury multiply that amount by the total number of days the plaintiff has

endured suffering.42

In fact, the jury is given with no instruction and guideline for making the

assessment of damages. The fact that the court provides jury with the jury instruction is

unhelpful for jury’s assessment of damages.43 The typical jury instruction for pain and

sufferingsimplyreadsasfollows:

“The guide for you to follow in determining compensation for pain and suffering,

if any, is the enlightened conscience of impartial jurors acting under the sanctity of your

oath to compensate the plaintiffs with fairness to all parties to this action.”44

Whenjurygivetheverdictondamages,itisinpracticeconclusiveduetothefact

thattheconstitutionprohibitscourtstomakearevisiononfactualfindingbyjury.Thesole

exception is that the court can disturb jury verdict only based on the fact that such award

is “excessive” or “shock the judicial conscience”, or “is obviously the result of passion

or prejudice see Coulthard v Cossairt, 803 P.2d 86,92 (Wyo.1990). The reviewing court

41 Richard W.Wright.2010. Basic Principles of Liability “Chapter 9: Damages” p.69842 Ibid 43 Supra Note 18 p.6-544 G. Douthwaite.1981., Jury Instructions on Damages in Tort Actions 274 referred in Supra

Note 31


has two methods in disturbing the jury verdict based upon the concept of addititur and

remittiter. In remittitur, if the excessive award is found, the reviewing court will provide the

plaintiff with option to accept the remitter of verdict or seeking a new trial on damages.45

On the other hand, in addititur, the plaintiff can seek review of a damage award if she

believes that a jury verdict is inadequate. However, the reviewing court will disturb jury

verdictonlyiftheverdictfailstoincludeanelementofdamagethatwasspecificallyproven

in an uncontroverted amount or if, viewing the evidence in the light most favorable to the

defendant, the verdict fails to award the plaintiff a substantial amount of compensation for

pain and suffering See Hewett v Frye, 184 W. Va. 477, 401 S.E.2d 222(1990). If inadequacy

of damages is proved, the court has authority to order an addititur, increasing the verdict by

the amount necessary to render an adequate verdict.46

The problems on the current mechanism of non-pecuniary damages

As mentioned above, since the non-pecuniary damages has no monetary

equivalent and no clear guideline is given, a jury’s assessment of non-pecuniary

damages seems to be unavoidably arbitrary.47 This arbitrariness of jury is normally

happen considering that the assessment of non-pecuniary damages falls on the group

of layman’s shared common senses and opinion on the damages. However, the main

problem based on the nature of jury arbitrariness is the consistency of the amount

of damages. The cases with similar fact pattern may be granted by jury the different

amount of non-pecuniary damages, which brings the issue of equity and fairness. In

addition, such inconsistency of the assessment of non-pecuniary damages also leads to

45 Supra Note 20 p. 55646 Ibid p. 55747 Harry Zavos.2009. “Monetary damages for nonmonetary losses: An integrated answer to the

problem of the meaning, function, and calculation of non-economic damages” 43 Loyola of Los Angeles Law Review

184 Vol.4No.1:2012

the following problems. First of all, the current assessment of non-pecuniary damages

leads to the increasing administrative costs such as lawyer fee or other court expenses.

Once the jury has no prior experience in assessing the non-pecuniary damages as well as

the absence of clear rule or methodology in guiding jury how to make the non-pecuniary

assessment, it is unsurprised that the administrative cost is higher because the jury needs

more time to learn and understand the case prior to granting the verdict on the damage

award.48 Another problem permeated from the current assessment is the improper extent

of the non-pecuniary damages. The jury, when given with no clear rule and guidance,

is easily induced to determine the large amount of non-pecuniary damages. This may

lead to the situation that the amount of damages is so much that the insurance company

is unable to cover it and put the burden on the consumer in the future by increasing

the insurance premium or refuse the insurance.49Suchsituationmayarguablyhavethe

potential negative effect on the health cost of people due to likelihood that if the doctor

is at risk to be liable with the large amount of non-pecuniary damages in the malpractice

case, she will increase the treatment cost or more adversely decline for treatment.50

Lastly, the current approach of the assessment of non-pecuniary damages may bring

about the unpredictability.51 Due to the assessment of damages relying heavily on the

jury common sense, the amount of non-pecuniary damages is likely to be varied even in

thecasewiththesimilarfactanddegreeofinjury.Suchunpredictabilitymayobstructthe

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

exactlythebenefitsandcostofeveryactiontheyaregoingtoundertakewillweighthem

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

48 Supra Note 18 p.6-749 Ibid p.6-850 Ibid 51 Ibid p.6-1152 Faure Michael.2009. Tort Law and Economic 2nd edition Cheltenham: Edward Elgar

Publishing Limited p.218


assuming that A is late to attend the most important meeting, she can choose to drive the

car very fast to attend the meeting in time. However, as a reasonably behaving person,

she would predict how much damages she has to pay in case of her driving causing

injurytosomeoneand,shewouldweighthedamageswiththebenefitthatshewillgain

in case of attending the meeting in time. Thus, unless rationally behaving person can

foresee that how much she is compelled to pay for tort liability, she cannot compare

andcontrastthebenefitandcostinordertotakeapropercautionwhichconstitutesthe

optimal deterrence.53 Nevertheless, the concept of optimal deterrence is often criticized

that it issofocusedontheaspectofefficiencythat itmaymoreor lessabandonthe

aspect of morality or justice which is the most crucial purpose of law. Assuming that

A can predict the damage she would be liable, she would persist to drive very fast

regardless of her liability, for example, in case that her father is in need for emergency.

However, despite such critic, the concept of optimal deterrence also keeps its value if

theaspectofefficiencycanbeconsideredalongwiththeconceptofjusticeandmorality.

Inaddition, theunpredictabilityofnon-pecuniarydamagesresults inthedifficultyin

settlementbetweenplaintiff anddefendant.Since thenon-pecuniarydamagesare so

varied, the parties fail to estimate how much damages jury will grant, which leads the

different expectation on the amount of damages. For example, the plaintiff who expects

the granted amount of damages much more than the amount offered by the victim may

bereluctanttomakethesettlement.Thedifficultyofsettlementwilllaterresultinthe

cases load of the court and the increasing judicial administrative costs.

The Illinois court decision on the wrongful act causing to bodily harm and death

This part will give clearer understanding of the non-pecuniary damages in the

53 Supra Note 18 p.2-32

186 Vol.4No.1:2012

USthroughexaminingthecourtdecisiononthewrongfulactcausingtobodilyharm

and death. However, as mentioned, the non-pecuniary damages are varied among the

states; thus, for the sake of easiness, the cases below are extracted from only the court

of Illinois state. These two cases are based on the infringement of the driver similar to

thecasesinThailandreferredabove.Thefirstcaseisrelatedtoinjurycausingtobodily

harm while the second case is related to the injury causing to death.

In Richardson v Chapman, 676 N.E. 2d 621, 627(Ill.1997),theplaintiff,Keva

Richardson, at the age of 23, and Ann McGregor, were injured when the car in which

they were riding, which was stopped at a red light at the intersection, was smashed

from behind by a semi-trailer truck driven by defendant Jeffrey Chapman, who was

anemployeeofthedefendantcorporation.KevaRichardson,thedriverofthecar,was

severely injured and rendered quadriplegic. Ann McGregor, the passenger, sustained

only slight injuries and returned to work a couple of weeks later. At the time of accident,

bothof themworkedasaflight attendantwithAmericanAirline.The juryawarded

KevaRichardsonthetotaldamages$22.4million.Thisfigurestandsfor$12.2million

foreconomicdamagessubdividedupto$0.3millionforpastmedicalexpenses,$11

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

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

millionforpastandpresentpainandsuffering.TheIllinoisSupremecourtaffirmedthe

non-economicdamagesbutordereda$1millionreductionintheawardthroughremitter,

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

unquantifiedcostsandrepresentedtoogreatadeparturefromthetrialtestimony.54

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

54 Supra Note 34 p.699


2002, the truck driver negligently struck the decedent, at the age of 83, while crossing

the street. The decedent died of his injuries shortly after he was transported to a

hospital. The plaintiff as the executor of the victim sued defendants, vehicle owner

and driver, alleging for damages sustained by the decedent’s estate under the Illinois

WrongfulDeathActandundertheSurvivalAct.Inotherwords, theplaintiffclaims

forcompensationforthedecedent’sfouradultchildreninlossofgifts,benefits,goods,

servicesandsocietyundertheWrongfulDeathAct,andthecompensationfordecedent’s

estateinpainandsufferingundertheSurvivalAct.Therecordshowedthatthedriver

was negligent crushing victim, and the victim’s death lead to the four adult children

damages for deprivation of the support as well as deprivation of the companionship,

guidance,advice,loveandaffectionofthedeceased.Also,thedecedentwasinflicted

with the pain and suffering prior to death. Based on the evidence, the jury rendered

averdict for theplaintiffheirsandagainstdefendants in theamountof$1,725,000,

reducedby1%for thecontributorynegligenceofClarke to$1,707,750.Theaward

damageswereasfollows:$275,000forthepainandsufferingexperiencedbyClark;

$250,000forthelossofpastandfuturegifts,benefits,goodsandservicesofClarke;and

&1,200,000forthelossofpastandfuturesocietyofClarke.Theappealcourtaffirmed.

It should be noted that in the first case, the plaintiff claimed separately the

non-economic damages, that is, disfigurement, disability, and past and present pain

and suffering. In assessing each type of non-economic damage, both plaintiff and

defendant’s attorney suggested the jury the range of the suggested amount of each item

of damages and let the jury independently decided the amount of damages, which may

be out of the range suggested by the parties.

In the second case, it is good to notice that plaintiff in this case is four adult

188 Vol.4No.1:2012

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

was83yearsoldandwasprovedinflictionwithpainandsufferingintheshortperiod

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

damagesforhisfourchildrenundertheWrongfulDeathCaseupto$250,000forthe

lossofpastandfuturegifts,benefits,goodsandservices,and$1,200,000fortheloss

of past and future society, as well as the pain and suffering experienced by decedent at

$275,000.ItisdoubtfulthatifthiscasearoseinThailand,howmuchThailandcourt

granted damages on the plaintiff.

COMPARATIVE ANALYSIS

Fromtheinformationpresentedabove,thenon-pecuniarydamagesintheUS

and Thailand seems to be distinct and merit the consideration in more detail. This section

will make a summary on the differences of the non-pecuniary damages in both systems

andfindoutsuchdifferencesshouldbeharmonizedtoprovidethebetterimprovement.

The differences of non-pecuniary damages in Thailand and US

Thedifferencesofnon-pecuniarydamagesinThailandandUScanbedivided

up to four categories as follows.

1. Types of non-pecuniary damages for the case of injury to bodily harm

This type of non-pecuniary damages is actually similar between both countries.

In other words, the law allows the injured party to claim for the non-pecuniary damages

sustained from injury to bodily harm. However, both of them are different in degree and

the depth of court treatment. In Thailand, the law allows the injured party to claim both


pecuniary and non-pecuniary damages. However, in term of non-pecuniiary damages,

although the injured party differentiates the type of non-pecuniary damages she thought

sheiseligiblesuchaspainandsuffering,lossofenjoyment,disfigurement,thecourt,

in fact, grants the concluding amount of such damages in total sum. This treatment can

be viewed in the Keerati case in which the court granted the total sum of non-pecuniary

damagesat6,900,000bahts.UnlikeThailand,theinjuredpartyinmoststatesintheUS

can claim for each type of non-pecuniary damage separately and the jury will award

the verdict based on each type of non-pecuniary damages. The Richardson case is the

good example of the treatment of most courts which granted non-pecuniary damage

separatelyondisability,disfigurement,andpastandpresentpainandsuffering.

2. Types of non-pecuniary damages for the case of injury to death

The non-pecuniary damages in the case of injury to death is substantial different

between both countries. In fact, Thailand does not allow the injured party to claim for

any non-pecuniary damages in the death case. The concept of pain and suffering prior

todeathaswellasthelossofenjoymentisubiquitousinmanystatesintheUSbutsuch

concept does not have the place in Thailand’s tort law. The example of Piyada case

clearly shows that she does not allege the non-pecuniary damages in the plaint because

she knew exactly the law does not allow the non-pecuniary damages in the case. On the

contrary, the example of Clarke case shows that the Illinois court recognized the pain

andsufferingpriortoClarke’sdeathunderSurvivalAct.

3. The third party claims on non-pecuniary damages

Damages for the third party, the person who suffered from victim’s injury

190 Vol.4No.1:2012

ordeath,aretheothersubjectthatisverydifferentbetweenThailandandtheUS.In

thisregard,theUSismuchmorebroadeningscopeforthethirdparty’sdamagesthan

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

intheUSlawenablethespousetoclaimforthelossofsocietyorthelossofconsortium

from the tortfeasor who causes the injury to bodily harm or death. Many states also

extend this type of damages covering child and parent. The Clarke case is the good

example showing that even the adult children with the age above 50 years can claim

the loss of society from the defendant. More broadening, the third party may claim for

the mental distress once she is suffered by witnessing an accident involving a loved one

although the condition that there must be physical injury must be met.

Turning to Thailand, the third party, no matter how close relation with the

injured party, is not entitled to the non-pecuniary damages. Only pecuniary damages

such as the loss of legal support, loss of service can the third party claim under the law

of tort liability. The Piyada case obviously shows that Piyada’s father can claim for the

legalsupportandnothingelse.AlsoKeerati’smothercanclaimonlyKeerati’sdamage

but cannot claim anything for her damages due to the law does not allow the claim for

the legal support in the case of the injury to bodily harm.

4. The assessment of non-pecuniary damages

Both systems have the substantially different assessment of damages. In

Thailand,theplaintiffis,accordingtoSection142oftheCivilProcedurelaw,bound

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

grantthetypeandtheamountofdamageexceedingthoseidentifiedintheplaint.This

stipulated condition lead to the situation that the amount of the granted damages in one

case sometimes are much less than the other case with the similar fact due to that the


plaintiffintheformercasemayleaveoutsomekindofeligibledamagesoridentifiedthe

inadequate amount of damage, which leads to the plaintiff improperly uncompensated.

Forexample,assuming,basedontheevidencesenunciatedinthecourthearing,Keerati

suffered or will suffer amount of damages much more than the requested damage, the court,

subject to the law, can grant the greatest at the plaintiff’s requested amount of damages,

which unavoidably constituted inadequate compensation. This problem seems not to be

thecaseintheUSinwhichtheplaintiffisnotlimitedtoidentifyakindandtheamount

of damages in the plaint. Rather, the plaintiff’s attorney can suggest the jury the range of

possible amount of each type of damages. The jury in fact can compare the suggested range

of the plaintiff and defendant’s amount of damage to reach the granted amount of damages

which may be out of the range proposed by both parties. The Richardson case shows the

mentionedassessmentofnon-pecuniarydamagesintheUS.

The proposed reform of Thailand Non-pecuniary damages

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

extentThailandtortlawshouldrecognizetheconceptofUSnon-pecuniarydamages.

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

damagesandanalyzehowtheUStacklewithsuchproblemsinordertoseethepossibility

to extend the scope of the existing Thailand non-pecuniary damages. However, due

toalotofdiscussiononnon-pecuniarydamages,thearticleshouldfirstlyaddressthe

conflictingopinionsbaseduponthenon-pecuniarydamageaffectingthetwomaingoals

of tort liability, compensation and deterrence, before constructing to what extent the

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

192 Vol.4No.1:2012

The goals of tort law have been recognized in a number of different ways.

However, the major goals emphasize both compensation and deterrence. Firstly, the

tort law should compensate the injured for their injuries and restore them as closely as

to the condition prior to the accident. However, some disagree with the concept of non-

pecuniary damages and argue that the non-pecuniary damages never restore the injured

to the condition prior to injury due to undeniable fact that money neither erase the pain

nor restore the plaintiff to the pre-injury status.55 In addition, because of no money

equivalent,itisdifficulttoestablishworkablestandardofmeasurement.56 Therefore, it

should be limited or should not be recognized.

In my opinion, I am not convinced that the non-pecuniary damage should be

abandoned. Although there is no monetary for such loss, the non-pecuniary damages

are viewed as symbolic of the defendant’s responsibility for the plaintiff’s loss based

upon the extent of its gravity.57 Also, this damage is viewed as the proper atonement that

the defendant has to pay respect to the plaintiff for loss.58 Assuming that none of non-

pecuniary damages is actionable, the award of damages in Keerati case must be minimal

because only medical expenses is granted while other monetary damage such as loss of

earningishardtoquantifyduetothefactthatKeeratiisakidandhasnoearningatthe

timeofaccident.TheresultshallleaveKeeratiandhisfamilyunfairlyuncompensated.

Another major goal of the tort liability is to deter unreasonable unsafe conduct.59

In economic perspective, the tort liability can lead to the deterrent effect. The economic

55 Joseph H. King, Jr (2004) “Pain and Suffering, Noneconomic Damages, and The Goals of Tort Law” 57 SMU Law Review 163 p.2

56 Ibid57 Supra Note 40 p.158 Ibid59 Supra Note 48 p.9


theoryisthatreasonablepersonknowsexactlytheexpectedcostandbenefitofevery

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

intendedactionisbeneficialfortheirutilityandactaccordingtothisdeliberation.60 In this

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

costofcompensationandbenefittoestimatetheintendedaction.Ifthecompensationis

properly granted, that is equal or more than the actual damages, it can lead to motivation

to exercise the proper care and therefore deter the accident.61 On the other hands, if the

compensationisdeterminedlessthantheactualdamages,thebenefitwilloutweighthe

cost of infringement and thus discourage the motivation to exercise the proper care and

thus make the deterrent effect ineffective.62 Thus, if the non-pecuniary damage is not

allowed, the granted damages based upon the monetary damages seem to inadequate

andlesscostthanbenefittheinjurergainedthatitisunabletoprovidetheinjurerthe

motivation to exercise the proper care and obstruct the deterrent effect.

However, some scholars disagree that the non-pecuniary damages can lead to the

deterrent effect. One of the main reasons is that, the liability fail to communicate to the

infringer in order to motivate the proper care due to the fact that, in most cases, based on

the concept of vicarious liability, those who is compelled to pay damages is not infringer

but may be the employer or insurance company.63 In my point of view, such situation

is recognized; however, the deterrent effect by the non-pecuniary damages also plays

the role. Although the third party, employer or insurance, is statutorily forced to pay the

damages on infringer’s conduct, that does not mean there would by no means effect on

the infringer. For instance, in Piyada or Keerati case, although the employer is liable

60 Supra Note 21 p.21861 Supra Note 18 p.2-562 Ibid63 Supra Note 48 p.10

194 Vol.4No.1:2012

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

andfiredfromhisjobduetohisnegligence.Thus,thefinalresultofgrantingthenon-

pecuniary damages also communicates to the infringer and implies the motivation to

exercise the proper care, which results in the deterrent effect.

The above analysis can infer my opinion that the non-pecuniary damages,

despitebeingunable toundonewithmoneyanddifficult toquantify, is the real loss

to the injured and essential to two major goals of tort liability. However, the scope is

also questionable. In Thailand, the scope of non-pecuniary damages in personal injury

is determined only in the case of the injury to bodily harm and left out for the case of

injurytodeath.Thisleadstotheunsatisfiedresult.Forinstance,assumingthatKeeratiis

suddenly dead from the infringement, the defendant seems to be limitedly liable for loss

ofearningorlegalsupportduetoKeeratiisakidwithnoearningatthetimeofaccident.

Additionally, because of the sudden death, there is none of medical expense granted. As

a result, the granted damages the defendant is liable are much more less than the said

caseofinjurytobodilyharm.ThisresultleadtotheunfairnesstoKeeratiandhisfamily

anddefinitelyfailedtoprovidethemotivationforinfringertoexercisethepropercare.

Turning to the US non-pecuniary damages for injury causing to death, the

court realize the importance of such damages. According to Jordan v Baptist Three

Rivers Hospital 984 SW.2d 593(Tenn.1999), Judge Holder mentioned that, absent the

wrongful death cause of action, “it was cheaper for the defendant to kill the plaintiff

than to injure him, and that the most grievous of all injuries left the bereaved family

ofthevictim…withoutaremedy.”Infact,itiswellrecognizedamongstatesthatnon-

pecuniary damages such as the pain and suffering prior to death can be recovered by

victim’sestateundertheSurvivalstatute.However,althoughfewstatesdorecognizethe


pain and suffering of the deceased subsequent to death like the loss of enjoyment of life,

or hedonic loss, most states reject it owing to undeniable fact that the deceased has no

feeling, whatever happiness or misery. Granting the non-pecuniary damages subsequent

to death may be over-compensation and windfall to the deceased’s heir. Therefore, from

the above discussion, absence of non-pecuniary damages in the case of injury causing to

deathisproblematicandinfact,Thailandcourtrealizestheunsatisfiedresultthatmay

arise from such absence. For example, in Piyada case, although Thailand court cannot

grant non-pecuniary damages but it alternatively choose to increase the loss of legal

support to 46,000 bahts a month in 20 years. This is very high amount of legal support

given that Piyada was a college student at that time and has no earning at all. The

Thailand court deals with the impasses of non-existence of non-pecuniary damages by

increasing the monetary damages in order to adequately compensate Piyada’s family.

Therefore, based on the analysis above, it is reasonably timely for Thailand to recognize

non-pecuniary damages in the case of injury causing to death.

However, the scope of non-pecuniary damage should be seriously studied

before implementation. In my view, the decedent’s non-pecuniary damages for the pain

and suffering damages prior to death are real and should be undeniably recognized.

For non-pecuniary damages subsequent to death, however, a lot of researches on its

influenceonthegoalsoftortlawshouldbetakenintoconsiderationbeforeenforcement.

Regarding the non-pecuniary damages for the decedent’s next of kin, Thailand

does not recognize the non-pecuniary damages of the third party in relation with the

plaintiff.InUS,manystatesrecognizetherecoveryofthespouse’slossofconsortium.

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

controversial.Forexample,theIllinoisSupremeCourthaspermittedspouses,parents

196 Vol.4No.1:2012

of minor and adult children and sibling to recover the loss of consortium See Finley

v Zemmel, 151 Ill.2d 95, 276 Ill,Dec. 1, 601 N.E.2d 699(1992) and Garcia Clarke v

Medley Moving and Storage Inc. and Gregory Griffin 381 Ill. App. 3d 82; 885 N.E.2d

396;2008 Ill while New York and New Jersey state expressly preclude recovery for

loss of society or companionship See eg. Alexander v Whitman, 144 F.3d 1392(3d Cir.

1997).64 In addition, many states recognized the mental distress caused by witnessing the

injury to the loved one. However, the rule in this kind of damages is not determinative.

In other words, although general rule requires the physical harm accompanied with the

mental distress, the interpretation of harm may be different among states See Daley v

LaCroix, 384 Mich. 4, 179 N.W. 2d 390(1970) and some states does not require the

physical harm See St. ElizabethHospital vGarrard, 7:30 S.W.2d 649 (Tex.1987).65

Consequently, although the concept of the non-pecuniary damages for the third party is

real and necessary for compensation, given disparities among states about the concept

of non-pecuniary loss to the third party, it is too soon to implement in Thailand. The

research should be undertaken in depth about its advantages and drawbacks and

influenceonthegoalsoftortlaw,bothcompensationanddeterrencebeforeThailand

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

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

US,and theprominent roleof jury in theUSnon-existent inThailand, it shouldbe

notedthatsomeconceptofassessmentintheUScanbeborrowedtoapplyandadjustin

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

theUSarenotlimitedinthescopeoftherequestedamountofdamages.Forexample,

in the case of Keeva, the attorney of both plaintiff and defendant can offer the range

of the possible amount of damages to jury but the jury is independently able to grant

64 Supra Note 20 p.57465 Ibid p.693


amountofdamagesevenoutofsuchproposedranges.UnlikeUS,judgesinThailand,

underSection142of theCivilProceduralcode, isprohibited togrant theamountof

damages out of the plaintiff’s requested amount of damages, although the evidence will

show that such damages are sustained by the plaintiff. It would be better compensation

on the injured party provided that the court has more discretion to grant the amount of

damages according to the shown evidence although the plaintiff’s attorney unwittingly

or negligently leaves out some real damages. Consequently, the proposed reform is to

amend the legislation to provide more discretion to the court without the limitation only

on the scope of the requested amount of damages.

CONCLUSION

Inconclusion,ThailandandtheUShavedifferentapproachesonnon-pecuniary

damageinpersonalinjurycase.Suchdifferencesmerittheconsiderationofthisarticle

and lead to the proposed reform of Thailand Tort law. To brief, the non-pecuniary

damages in the injury causing to death should be available, especially in the case of

pain and suffering prior to death, although the scope and degree of other non-pecuniary

damages are also under the scrutiny. Moreover, the law should be amended to provide

the broaden scope of court’s discretion on granting amount of damage without limitation

on the scope of the plaintiff’s requested amount of damages. Last but not least, Thailand

should invest more on the research about the drawbacks and advantages, as well as the

scope of the non-pecuniary damages on the person in relation with the injured before the

law amendment will be taken into effect.

198 Vol.4No.1:2012

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