Wrongful Acts and Claiming Compensation under the Civil & Commercial Code

Section 420 of the Thai Civil & Commercial Code (CCC) provides that “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”. Thus pursuant to the legal concept of liability for wrongful acts under the CCC, a person can only be compensated if their lawsuit can prove the existence of the following four elements which are required in order to prove that a wrongful act was committed.

1.Willful or Negligent Act

It must be proven that the accused party acted willfully or failed to exercise the degree of care that a reasonable person would ordinarily exercise to avoid the foreseeable harm.

2.Causing Actual Damage

It must be proven that the victim suffered actual damage, such damage could take the form of injury to the body or health (up to and including death). For example, if a small child slaps someone in the face but no scratch or bruise appears, then it shall not be considered that the person has sustained any legal damage.

3.Unlawful Act

It must be proven that the act in question was unlawful.For example, if two boxers are fighting in a professional match and one knocks out the other during a match by a legitimate punch, then the one who is knocked out  cannot later sue their opponent for assault or tort as such a claim would not be recognized under the law. This is because participation in a boxing match is based on the voluntary consent of both parties, and therefore the victim cannot claim that their opponent’s actions were unlawful.

4.Causal Relationship between the Act and the Resulting Damage

It must be proven that there is a causal connection between the act and the resulting harm. In other words, the harm must not be too remote from the act.

For example, if a man hits his friend on the head once with a stick and his friend has minor swelling but an X-ray shows no brain injury, and ten years later the friend fails to enter university and sues the man claiming that the head injury caused the failure, such a claim would not be recognized under the law. Despite the fact that the act may satisfy the first three elements, the resulting harm is not sufficiently connected to the act in question. Thus the friend’s failure to enter university is not sufficiently causally linked to the act in question (hit on the head). Therefore, it does not constitute a tort under Thai law.

The other party will only be found liable and subject to pay compensation to the victim if all of the above four elements are proven to the satisfaction of the Thai Courts.

Wrongful/ Negligent Acts of Employees

The CCC provides that an employer is jointly liable with their employee(s) for the consequences of a wrongful act committed by such an employee in the course of his/her employment.

Types of Compensation Potentially Claimable by the Victim

In Thailand, the courts determine the manner and the extent of compensation according to the circumstances and the gravity of the wrongful act committed by responsible party.

If the above three elements are able to be proven to the satisfaction of the court then the victim of the wrongful act may be able to claim various types of compensation based on the facts of their case. The following, details some of the different types of compensation which can be claimed by the injured party or by related third parties.

1.Medical Costs/ Expenses

Legally, the word “expenses” is commonly defined and includes any expenses that the claimant had paid due to the injury they suffered, such as hospital/ medical fees. Therefore, if the three abovementioned factors are able to be proven to the satisfaction of the court and the victim has already paid medical expenses such as to a hospital/ medical clinic to treat the damage caused to them then the victim shall have the right to claim these medical expenses back from the party who committed the wrongful act.

In addition to hospital fees, other necessary expenses may also be claimable, such as expenses for hiring a caregiver and travel expenses (such as for the purpose of obtaining necessary medical treatment) which the injured party had paid as a result of treating the wrongful act.

It is worth noting that in order to claim such expenses the victim shall need to be able to substantiate the monies already paid though such things are receipts for medical services provided. The court may also want to see statements of service to ensure that the medical care provided related to treating the damage arising from the wrongful act.

2.Future Medical Expenses

In addition to the above, the injured party may also be entitled to receive compensation for future medical expenses for follow-up treatment, provided that such future medical treatment is legitimately needed to address medical issues arising from the wrongful act.

In terms of determining if future medical treatment shall be necessary, normally the court will examine medical reports to decide if compensation under this category is necessary.

Even if the exact cost of future medical treatment is unknown, the court has the power to order appropriate compensation to be paid to the injured party under Thai law and pursuant to the treating doctor’s treatment plan and the injured party’s medical condition.

3.Cost of the Loss of Earning

Expenses and damages for total or partial disability to work can also be claimed under Thai law provided that the victim can provide suitable evidence to support the position that they cannot work (either on a limited or permanent basis) as a result of the wrongful act.

Normally, the type of evidence that the court looks at when determining this category of compensation is medical certificates/ reports which evidence whether the victim is suffering a total or partial disability inability to work, how long it shall last for as well as evidence of income the injured party was receiving prior to the wrongful act such as pay slips or banking records showing salary/wages being paid to their account etc.

4.Cost of the Loss of Injured Party’s Services

The cost of the loss of the injured party’s services is compensation for third parties where the injured party has rights and duties to such third party under Thai law; examples of relevant third parties include an employer, a lawful spouse (they must be legally married for a spouse to be entitled to claim under this heading) and a legitimate child.[1]

For example, if the injured party dies as a result of the unlawful act, the job position of the deceased victim will be vacant which means that the number of employees working for their employer is decreased and the employer is thereby losing a benefit; therefore, the employer is entitled to receive the cost of the loss of the deceased victim’s services. Moreover, if the deceased victim has a duty to do house work and their spouse has to hire a housemaid to do cleaning and take care of the house after the victim’s death, the legal spouse will be entitled to receive compensation for the cost too.[2]

5.Cost of Deprivation of Family Support

The persons who have the right to claim for this type of compensation must have been deprived of their legal support as a result of the injured party suffering the wrongful act.

According to Thai law, a legitimate child has a duty and responsibility to support their parents until the parents are deceased.[3] Therefore, if the victim of the unlawful act is a child and they die as a result of such act, then the living parent(s) can reserve the right to receive the cost of deprivation of family support even though there’s no evidence to prove that the child will support them in the future. Moreover, even if the child had never provided support to the parents before, the parents of the child still have the right to claim compensation under this heading. In determining compensation under this specific category, the court may look at things such as the financial support provided by the injured party to their parents. This can be evidenced by such things are bank transfer records from the injured party to the bank account of their parent(s).

In addition to the above, it should also be noted that a husband and wife have a duty and responsibility to maintain and support each other until they are divorced or when the husband or wife is deceased[4] such maintenance and support shall be in accordance with their capacity and individual status.[5] For example, a husband and wife must help each other doing their duties to keep their family’s happiness. Moreover, a husband and wife are responsible for giving each other necessities, such as shelter, medicine, food and financial support. Therefore, if a husband or wife is the victim of an unlawful act then the other legal spouse may be able to claim compensation under this heading depending on the evidence they can provide to support their claim.

6.Cost of Funeral Expenses

If the injured party dies as a result of the wrongful act then the cost of funeral expenses can also be claimed from the party who committed the wrongful act. Normally the court will set an amount for funeral expenses after considering the deceased person’s social and financial status.

For example, when considering the funeral expenses for a Buddhist funeral, the court shall normally allow for the cost of the coffin, the shroud, the embalming fluid, the funeral bathing, the Buddhist funeral rites and the rental of the crematorium. If the funeral has already been held, then the cost of the funeral management can be claimed within one year from the date of the wrongful act.

Other necessary expenses other than the funeral expense can also possibly be claimed, for example, the travel expense of the deceased’s heirs to hold the funeral[6], the cost of food at the funeral[7], the cost of souvenirs[8], the cost of the ossuary[9], the cost of cemetery (if buried)[10]  and the cost of the corpse transportation[11], provided that there is reasonable and sufficient evidence or documents provided by the deceased victim’s heirs to support such incurred expenses.

It should also be noted that if the person who committed the wrongful act attends the funeral and gives a monetary contribution in a condolence envelope, such contribution is considered merely a customary act of assistance. They cannot later rely on such contribution as full compensation for the funeral expenses. Therefore, the heirs of the deceased victim still retain the right to claim the cost of funeral arrangements.

7.Cost of the Non-Pecuniary Loss

The injured party may also be entitled to receive compensation for the cost of the non-pecuniary loss under Thai law if negligence is found and the evidence proves that the damage suffered by the victim was caused by the actions of the party who committed the wrongful/ negligent act.

Prescription Period (Statute of Limitations Period)

The CCC provides that the making of a claim for damages arising from a wrongful act is barred by prescription after one year from the day when the wrongful act and the person bound to make compensation became known to the injured person, or ten years from the day when the wrongful act was committed. However if the damages are claimed on account of an act punishable under Thai criminal law for which a longer prescription is provided, then such longer prescription shall apply.

Dharmniti Law Office Co., Ltd.

2/2 Bhakdi Building 2nd Floor, Witthayu Road, Lumphini, Pathumwan, Bangkok 10330

Tel: (66) 2680 9777

Fax: (66) 2680 9711

Email: info@dlo.co.th

[1] Children are not entitled to this type of compensation if they have already reached their majority (in Thailand this is set at 20 years of age).

[2] The Supreme Court Judgement No. 567/2538

[3] Civil and Commercial Code Section 1563

[4] Civil and Commercial Code Section 1461

[5] The Civil and Commercial Code Section 1461

[6] Supreme Court Judgement No.1000-1001/2521 and No.2437/2522

[7] Supreme Court Judgement No.1812/2535

[8] Supreme Court Judgement No.2707/2516

[9] Supreme Court Judgement No.2707/2516

[10] Supreme Court Judgement No.533/2506

[11] Supreme Court Judgement No.2023/2522