Hot! Personal Injury and Damages For Non-pecuniary Loss in the Law of Torts and the Product Liability Law

By Isara Lovanich

1. Introduction

Under the law of torts, there are state of damage and state of compensation. As per such consideration, before granting damages one act must firstly qualify as a state of damage or so called “tortious act” Otherwise, the state of compensation may be applied in order to grant damages only where specially indicated by the law. That is where the law has made loopholes in
case of recovery damages for non-pecuniary loss that is not accompanied with injury to body, health or liberty since section 446 of the Thai Civil and Commercial Code (TCCC) does not specifically indicate non-pecuniary loss, not accompanied with injury to body, health or liberty, as a state of compensation. Also, it does not mention compensation for non-pecuniary loss in case of injury to life. Nevertheless, for those already mentioned within section 446, there is no device provided by the law in order to calculate damages for non-pecuniary loss. These issues bring about our present concern as follows:

 I Problems Concerning Recovering Damages for Non-Pecuniary Loss in Case of Living Claimants

(a) Under the Thai Civil and Commercial Code
Under Thai tort law, the section that deals with the evaluation whether the act is a tortious act or not 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 therefore.”

According to this provision, damage that falls into the type of a violation of the individual’s rights are of those which concern personal integrity and property in which section 420 clearly states that they are (1) injury to life (2) injury to body and health (3) injury to liberty (4) injury to property and (5) injury to any right of another person. The ambiguous interpretation still remains for wording ‘any right of another person’ whether it shall mean only ‘absolute rights’ guaranteed by the law or ‘any right of a person’ existing and guaranteed by any law which need not be only absolute rights.

Then, according to Thai Court’s present approach,2 if the injury is not qualified as a state of damage under section 420, one will be able to claim damages for non-pecuniary loss only as per section 446 paragraph 1#3

of the TCCC i.e., in case such non-pecuniary loss is accompanied with injury to body, health or liberty.

Yet, after the new Liability for Damages Arising from Unsafe Products Act is enacted, the case of Dr. Jermsak’s has shown the intention of the Court in trying to move away from the old interpretation4, i.e., to grant damages for non-pecuniary loss which  is not accompanied with injury to body, health or liberty by referring to the definition provided in the Liability for Damages Arising from Unsafe Products Act. However, it might not be the right solution since Dr. Jermsak’s loss is only emotions where law does not aim to compensate. In any event, the interpretation and future approach should be certain otherwise it will be an obstacle for the claimant because section 142 paragraph 1 of the Thai Civil Procedure Code (TCPC)5 made, referring to this article, it the claimant’s duty to make a proper request since the Judge cannot rule in favor more than what the claimant has requested in the motion

(b) Under the Liability for Damages Arising from Unsafe Products Act

The Liability for Damages Arising from Unsafe Products Act section 46 has specifically defined damage to mental state as another head of damage along with its definition and, according to the Council of the State explanation, the purpose of indicating the definition of damage to mental state is to make this type of damage be absolutely recognized in which to guide the Court of the enforcement for this kind of injury7.

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 in the definition of damage is to guarantee that damage to mental state is qualified as another state of damage. However, section 4 of the Liability for Damages Arising from Unsafe Products Act is only the definition. It does not constitute the right to compensation. Whether damage to mental state in the Liability for Damages Arising from Unsafe Products Act is recoverable, the claimant has to refer to section ll (l) of the Liability for Damages Arising from Unsafe Products Act. It then raises a 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 section 446 of the TCCC. Or does it share the same status with ‘any right of another person’ in section 420 of the TCCC?

In addition, the survey of Thai Supreme Court’s decisions8 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.9

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 of the TCCC does not include damage to mental state as a state of damage therefore damages for damage to mental state in the Liability for Damages Arising from Unsafe Product ‘s Act which was enacted to fulfill the gap in section 420 of 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 section 420 of the TCCC. It also can lead to the interpretation that damage to mental state is wider than non-pecuniary loss without any justification.

In trying to identify the definition of non-pecuniary loss that is recoverable, under section 446 of the TCCC, we must refer to the survey of Thai Supreme Court’s decisions10, the author found that damages for non-pecuniary loss which is recoverable under section 446 of the TCCC are losses that affect the well being of a person, regardless of whether it affects mental state of a person or not. The Court always rejects claims which refer to damage to mental state of a person but the Court has always granted damages for the damage that cause detriment to the living, a well being of a person. This is different from damage to mental state in the Liability for Damages Arising from Unsafe Products Act because such Act pays attention to damage to mental state instead of damage to the well being of a person as defines in its section 4 which also includes emotions such as fear, sorrow and shame. 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 dam ages for non-pecuniary loss under the TCCC, it must be inferred that the TCCC is ready to grant damages for emotions as well.

II Problems Concerning Recovering Damages for Non- Pecunairy Loss in Case of Injury
to Life

(a) Under the Thai Civil and Commercial Code

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.

Together with the strict interpretation of section 446, 443 and 445 and the Supreme Court’s decisions,11damages for non-pecuniary loss will not be granted in case of injury to life because the Court found that there is no specific compensation granted by the law and that emotion is not regarded as a state of damage guaranteed under the TCCC. In this approach, damages for bereavement and damages for value for one’s life (damages for loss of life) will not be recognized. This is leading to the false impression that a life has no value to compensate whiles a property has and will be compensated, if lost.

(b) Under the Liability for Damages Arising from Unsafe Products Act

Section 11 (1) provides ‘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:

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 compensation12 for the damage occurring to mental health.’

This provision does not clearly mention whether the listed-persons’ right to claim for damages is the inheritability of the injured person’s right or it is the heir’s own right to claim damages for damage to the listed-persons’ mental state, i.e., damages for bereavement. 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 that is additional to the right provided under the TCCC; the right to claim damages for non-pecuniary loss under the TCCC is inheritable. Therefore, it can be enacted separately. Yet, it will cause confusion because the right of the deceased has already provided under section 44613 or; (ii) the listed-persons have their own right to claim damages for bereavement resulting from the death of the deceased. (Listed-persons mean the type of persons that specifically indicated within the complying law, as the case maybe. In this section 11(1), listed-persons mean the damage party’s husband, wife, children, or descendants.)

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,14 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 in which won’t inherit according to the law of succession.15 Any how, the provision should be amended as to not cause further confusion.

III Problem Concerning the Lack of Legal Method of Calculation

(a) Regarding the Lack of Legal Method of Calculation

The TCCC, the Liability for Damages Arising from Unsafe Products Act and other laws or regulations in tort system have no guideline concerning the legal method of calculation for non-pecuniary loss. The Court has to apply section 438 paragraph 1 of the TCCC16 and exercise his full discretion in order to determine the amount of damages for non-pecuniary loss hence with different Judges resulted in different amount of damages even if the circumstances of those cases are similar.

The study shows that in different cases but with similar circumstances, the claimants were granted different amount of damages for instance, between the Supreme Court decision nos. 247/2538 and 4859/2538.17 The first case provides that ‘defendant recklessly drove and finally caused an accident; the claimant was in the car and was seriously injured. He became crippled 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, brain damage and became paralyzed for the rest of his life. He was not awarded any damages for his non-pecuniary loss.’

Another example, comparing the Supreme Court decision nos.2580/2544and5751/2545,18 the first case provides “The claimant was under eyes surgery. With a medical malpractice, the eyes cannot close 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 whom got seriously injured, his left eye got damage and cannot be cured. The defendant was awarded only 54,682 Baht! The Court indicated the reason that the latter case received only about 50,000 Baht because he did not work and is 50 years old but in case of no. 2580/2544, she received 220,251 Baht because she was a teacher. In justice, everybody should be equally compensated regardless of his age, work or social status19.

Moreover, another fact shows that the Court tends to grant damages in case of injury to life less than other cases. The study found that the estimate amount of damages in case of injury to life is equal to 700,000 Baht but in case of crippled is approximately1.2 million Baht.20

This show the wrong sign that more severe damage costs less damages than the less serious one on which might lead to the improper level of care and incompetent deterrence effect.

Example Cases: Damages in Case of Injury lo Life

Supreme Court’s decision nos Damages granted(Baht) Supreme Court’s decision nos Damages granted (Baht)
174/2528 1,085,837 64/2546 343,759
3744/2537 272,073 5129/2546 644,549
2650/2538 206,425 6559/2546 386,729
8157/2538 1,818,354 3071/2547 334,529
5292/2539 168,380 928/2550 286,775
3369/2540 985,961 4352/2550 802,492
7228/2541 329,526 8271-8272/2550 1,805,895
2810-2811/2545 1,264,456 9357/2550 305,376
4716/2545 1,384,537 4751/2551 177,253

 

 

 

 

 

 

Mean =700,161
Highest amount =1,818,354
 Lowest arrount = 168,380

Example Gases: Damages in Case of Living Gaimants (Cripple)

Supreme Court’s decision nos Damages granted(Baht) Supreme Court’s decision nos   Damages granted (Baht)
1196/2531 1076597 7292/2543 1,007,256
1195/2534 141887 2580/2544 253,289
2416/2534 844486 5751/2544 55,063
559/2535 391941 4713/2545 601,497
2971/2537 429239 6303/2547 9,002,358
75/2538 1080565 2341/2548 844,665
247/2538 2396314 5207/2550 634,324
4859/2538 804435 6025/2550 1,661,627
628-629/2539 453306 7673/2550 1,847,146
5220/2539 2040464 8388/2550 504,979
4130/2540 307310 7823/2551 1,001,026
292/2542 351912    

Mean = 1505.726

Highest amount =9.002358
Lowest amount = 55,063

* The Complete report of Law and Economic: Calculating Tortious Damages,Rapee Pattanasak Institute, October, B.E. 2553, table 5-29

(b) Regarding Recovering Punitive Damages under the Liability for Damages Arising from Unsafe Products Act

The different 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 damages21.

This principle resulted from the Federation of Thai Industries’ request; a request for a method of calculation of damages for damage ‘to mental state, but such request has died in the Council because the Council found that damage to mental state has no obvious indication by which we can made the exact method of calculation and that we 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 on the business operators.22

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, 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 which they will choose to buy insurance. In paying insurance premium, the additional price will be added to the product’s price resulted a higher price for the same goods.23 Moreover, as the ceiling is not consistent, insurance company will increase premium and may cause the necessary producer to terminate its operation.24 In contrast, if we set the ceiling as a fixed figure then what about an injury that damages goes up over such fixed figure?25

IV Compartive Studies

(a) As to the Issue of Damages for Non: Pecuniary Loss in Case of Living Claimants

The author has studied English, German, Italian and French legal system. These jurisdictions have found their ways to bypass the legal restriction in order to provide full compensation. In brief, English law moved away from the physical impact, this made the scope of protection extend to nervous shock and also those secondary victims, though with some restrictions. In brief,a damage 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 victim26.

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.27 German law only recognizes compensation for nervous shock and psychiatric illness by the reason that it affects physical being of a person (injury to health). However, it is moving away from this old approach28 anyhow, no emotion is protected under the law.

Italian law links 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 alia salute”29 usually applied for non-pecuniary loss cases.

Under French law, all matters that amount to a disturbance in one’s living conditions may be subjected to a claim for compensation under section 1382 as long as it is direct and immediate consequence of the incident.30

Concerning the product liability law, these countries are member of European Countries which follow the principle of 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 85/374/EEC or hereinafter referred to as the EC Directive) that left damages for non-pecuniary loss to the domestic law of each country.

The uniform concepts pulled out of these four jurisdictions are (1) damages for non-pecuniary loss that is not accompanied with physical injury are recoverable. (The scope of protection are varied.); (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 tort because they already provide a very wide rangeof protection.

(b) As to the Issue of Damages for Non-Pecuniary Loss in Case of Injury to Life

With regard to the studied of English, German, Italian and French legal system, damages for non-pecuniary loss in case of death is recoverable, though different principles are applied. The right to claim damages for non-pecuniary loss of the decreased in Eng land will survive the death of the deceased by the power of the Miscellaneous Provisions Act 1934,31 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 listed-persons because the owner cannot claim compensation as he has already died.32 Moreover, English law specially grants damages for bereavement by the Fatal Accident Act 1976.33

German law previously did not inherit the right to claim damages for non-pecuniary loss to the listed-persons 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 alia salute” without amending its provision. By referring to “danno alia salute” everybody is entitled to claim damages for non-pecuniary loss if the action causes damage against the right guaranteed by the Constitution.

French legal system, does not specifically said anything on the issue, French legal system allows all claims that met the requirements of its section 1382.

The similarity of the principle of these countries is that no country automatically regards damages for non-pecuniary loss as the heritage, either put the right to claim damages as the listed-persons’ right or, specifically enact a special law to inherit such right.

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 be depends 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 limit to only the heirs but also the life-companionship.

(c) As to the Issue of Legal Method of Calculation
         Â
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 injury called as ‘Guidelines; i.e., the JSB Guidelines of England and “Schmerzensgeldtabellen” of Germany. 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 referred to the medical valuation and also the monetary value created by the court34 which reveals in a form of table. This method was inspired by the French ‘calcul au point’ system.35 Unlike the U.S. where the amount of damages for non-pecuniary loss is still depending on the jury’s evaluation.36
         Â
Under the product liability law, many jurisdictions have set the ceiling for the amount of damages, i.e., 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 Euros for identical items with similar type of damage.37 The ceiling rule is fit for industrial countries because the business operators will be able to calculate their risk through the ceiling figure.

Notwithstanding the above methods, there is another suggestion to use the ‘Scenario Method’ which set scenarios for the juries, to determine the amount of damages in each scenario.38 Then, compare 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.39 However, it is hard in practice and also expensive. Moreover the scenarios will somehow differ from the case that actually happened which anyway, will lead to discretion matter.40

The last question should be asked is that whether punitive damages should be allowed in case of damages for non-pecuniary .loss since it can be implied that the defendant is being compensated more than what he has lost.

V Possible Solutions

(a)As to the Problems of Recovering Damages for Non-Pecuniary Loss in Case of Living Claimants
There are possible ways to solve these problems. For the TCCC, it can be either introduce the new interpretation for ‘any right of another person’ ‘injury to body’ ‘injury to health’ or simply amend the laws, i.e., section 446. Together with this amending, the concept of secondary victim can be introduced into the section as well. In addition, for the Liability for Damages Arising from Unsafe Products Act, the rights provided in the Act should be made to the same extent as provided by the TCCC as not to cause further confusion as mentioned in the early part of this article.41

(b )As to the Problems of Recovering Damages for Non-Pecuniary Loss in Case of Injury to Life

The problems in this area may be solved by either adding the new section that specifically grants damages for non-pecuniary loss in case of injury to life or adding ‘injury to life’ as a kind of injury that raises the right to compensation under section 446 of the TCCC. In part of the Liability for Damages Arising from Unsafe Products Act, the old provision of section 11(1) should be amended in order not to cause further confusion; the new section shall apply the same logic as applied in the TCCC.42

 (c) As to the Problem of the Lack of Legal Method of Calculation

In principle, the Guidelines and Medio-legal scale have been created by referring to the amount of damages granted in previous decisions and to medical valuation. However, economic values of a statistical life are now part of generally accepted economic methodology which continues to dominate the ‘value of life’ literature43therefore, 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 including damages for loss of one’s life (value of life).44 In this regard, if the method being introduced, the goal of deterrent effect will be accomplished therefore, no punitive damage is needed in normal cases, i.e., punitive damages shall be applied only in outrageous cases.

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 concerning the state of ‘damage to mental state’ and the right to claim damages for non-pecuniary loss in case of injury to life. In this sense, the law does not provide full compensation to the victim, the link between the right protected under the law of torts and the Constitution should be made.

Nevertheless, Thai tort legal system still lacks method of calculation for damages for non-pecuniary loss which leads to inequality for the victims in different cases sharing similar circumstances and incompetent deterrence effect thus, the system should seek to find the method of calculation, a guideline, with regard to economics and human value in order to bring equality to the victims and to balance legal and social science for the best of the society.

————

1. This article is 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.

2. See  Supreme Court decision nos.7611/2542, 1550/2518, 477/2514, 292/2502  and 789/2502.

3. 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.’

4. Consumer black case no. 1/2551 (the claimant successful in claiming damages for pure
non-pecuniary loss as he suffered nervous during his flight because the airline service omitted      to search its passengers by the defective detect automatic machine according to the airline regulations)and(Manager Newspaper Report)available at http://www.decha.com/main/show Topic.php?id=3047.

5. 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

6. 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.”

7. à¹€à¸­à¸à¸ªà¸²à¸£à¸›à¸£à¸°à¸à¸­à¸šà¸à¸²à¸£à¸žà¸´à¸ˆà¸²à¸£à¸“า ร่างพระราชบัญญัติความรับผิดต่อความเสียหายที่เกิดขึ้นจากสินค้าที่ไม่ปลอดภัย พ.ศ…. จัดทำโดยสำนักงานคณะกรรมการกฤษฎีกา,สิงหาคม, 2550,หน้า 10 [hereinafter The Council of State’s Minute] (Document preparing in the drafting of the Liability for Damages Arising from Unsafe Products Act B.E. …, the Council of State, August, 2550, p.10.

8. Supreme Court decision, supra note 2.

9. 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) (9th December 2009) available at law.tu.ac.th/news/2552/Nov/News.pdf.

10. Supreme Court decision, supra note 2.

11. See Supreme Court decision nos.2816/2528 and 7611/2542.

12. With all respect to the translation, the original wording of this section uses the terms “ชอบที่จะได้” which should be interpreted as ‘entitled to’ instead of ‘shall have rights to compensation.

13. à¸­à¸™à¸±à¸™à¸•à¹Œ จันทรโอภากร, กฎหมายว่าด้วยความรับผิดเพื่อความเสียหายอันเกิดจากสินค้าที่ขาดความปลอดภัย, 2545, หน้า161 (Anan Chantara-opakorn, Product Liability Law, (2000), p.161).

14. à¸¨à¸±à¸à¸”า ธนิตกุล,  คำอธิบายและคำพิพากษาเปรียบเทียบกฎหมายความรับผิดต่อสินค้าไม่ปลอดภัย (พิมพ์ครั้งที่2, 2553) หน้า167 (Sakda Thanitkul, The Explanation And Comparative Decisions on Unsafe Product Liability, (2d ed. 2010), p. 167.)

15. Section 1600 of the TCCC (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).

16. Section 438 paragraph 1 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).

 17. à¸£à¸²à¸¢à¸‡à¸²à¸™à¸‰à¸šà¸±à¸šà¸ªà¸¡à¸šà¸¹à¸£à¸“์ การวิเคาระห์กฎหมายด้วยวิธีการทางเศรษฐศาสตร์: การคิดค่าเสียหายในคดีละเมิด,โครงการวิจัยเรื่องการวิเคราะห์กฎหมายด้วยวิธีทางเศรษฐศาสตร์, สถาบันวิจัยรพีพัฒนศักดิ์, สำนักงานศาลยุติธรรม, สถาบันวิจัยเพื่อพัฒนาประเทศไทย,ตุลาคม, 2553, table 5-3. [hereinafter The Complete Report.] (The Complete report of Law and Economics: Calculating Tortious Damages, Rapee Pattanasak Institute, October, 2010, table 5-3).

18. Id. at table 5-4.

19. Section 4 of The Constitution (The human dignity, rights and liberties and equality of the people shall be protected.); Section 6 of the Constitution (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 (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).

20. The Complete Report, supra note 17, at 5-30.

21. Section 11 (2) of the Liability tor Damages / Arising from Unsafe products Act (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, hut 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 circum stances 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).

22. ธนิตกุล, supra note 17, at 168.

23. See Sandra A. Hoffmann, W. Michael Hanemann, Torts and the Protection of “Legally Recognized”Interests, Discussion Paper, (August 2005) available at www.rff.org.

24. The Complete Report, supra note 17, at 6-8.

25. Id. at 6-19.

26. Vivienne Harpwood, Modern Tort Law, (6th ed. 2005), p. 56.

27. จิ๊ด เศรษฐบุตร, หลักกฎหมายแพ่งลักษณะละเมิด ,(พิมพ์ครั้ง 6, 2550), van 179-180 (Jeed Seadtabud, The Principle of  Tort, (6th ed. 2007), p. 179-180).

28. See the Reasoning of the Draft (Begriindung Regierungsentwurf) BT-Drucks. (Bundestagsdruck- sache-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) (quoting Ulrich Magnus The Reform of German Tort Law, working paper no. 127, (April 2003), In Dret, p.3 available at www.indret.com).

29. Basil Markesinis, Michael Coester, Guido Alpa and Augustus Ullstein, Compensation for Personal  Injury in English, German and Italian Law (2005), p. 84.

30. Michel Cannarsa, Compensation for Personal Injury in France, available at www.docstoc.com and http://www.docstoc.com/docs/3830543/Compensation-for-Personal-Injury-in-France-by-Michel- Cannarsa-Researchp3, at 17.

31. Section 1(1) of The Law Reform (Miscellaneous Provision) Act 1934 (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.

32. Miscellaneous Provision Act 1934.

33. The Fatal Accident Act 1976, available at http://www.legislation.gov.uk/ukpga/1976/30.

34. Giovanni Comande, Doing Away with Inequality in Loss of Enjoyment of Life (quoting John O.Ward, Robert I. Thornton, (2009), 91 Personal Injury and Wrongful Death Damages Calculations:  Transatlantic Dialogue Contemporary Studies in Economic and Financial Aanlysis 255, at 259).

35. Basil Markesinis, Michael Coester, Guido Alpa and Augustus Ullstein, supra note 29, 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 amount given will be calculated from the point of invalidity vary according to standard factors e.g., age,
sex, etc. of the-victim).

36. Supra note 34.

37. Chantara-opakorn, supra note 13, at 154.

38. The Complete Report, supra note 17, at 6-24.

39. Id.

40. Id.

41. See Isara Lovanich, Personal Injury and Damages for Non-Pecuniary Loss in the Law of Torts and the Product Liability Law, Master Degree Dissertation, Faculty of Law, Thammasat University (on file with Sanya Dharmasakti Library, Thammasat University) (2011).

42. Id.

43. W. Kip Viscusi, The Value of Life: Estimates With Risks by Occupation and Industry, Discussion Paper No. 422, (May 2003), p. 1.

 44. See Lovanich, supra note 41.

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