Tort Claims (for Personal Injury) under Thai Law – An Overview
Pursuant to the legal concept of liability for wrongful acts under the Thai Civil and Commercial Code (CCC), a person can only be compensated if their lawsuit can prove the existence of the following three factors (as stipulated in section 420 of the CCC) which are required to prove that a tort was committed.
Readers should also be mindful that section 420 of the CCC will only be applied in general tort cases provided that there isn’t any specific section in the Code for another kind of tort.
Requirements to prove a tort was committed:
Factor 1. - Negligent or Unlawful Act
It must be proven that the wrongdoer committed an unlawful act or failed to follow the degree of care that would be followed by a reasonable person in order to avoid the foreseeable harm.
Factor 2. - Damage
Secondly, it must be proven that the injured person actually suffered the damage as alleged in their tort claim.
Factor 3. - Damage must be caused by such negligent/ unlawful act
Finally, it must be proven that the damage suffered by the injured person was caused by the negligent or unlawful actions of the wrongdoer under the concept of causation.
Types of Compensation Available (if the Injured Person is not Deceased):
If all of the above three (3) elements are able to be proven, then the injured person and other parties may be able claim the below mentioned types of compensation from the responsible party. It should also be noted that the Thai Courts have broad powers with respect to the granting of compensation, this is provided under section 438 of the CCC which states that
“The Court shall determine the manner and the extent of the compensation according to the circumstances and the gravity of the wrongful act.
Compensation may include restitution of the property of which the injured person has been wrongfully deprived or its value as well as damages for any injury caused.”
Readers should note that if the injured person is deceased, then the injured person’s heir(s) shall be entitled to receive the cost of deprivation of family support and the cost of funeral management too. However, they would not be entitled to receive compensation for non-pecuniary loss (see below).
Reimbursement of the Cost of Actual Medical Expenses
Section 444 of the CCC, provides that if a person who is the subject of a tort suffers an injury to their body or health, then they are entitled to receive “reimbursement of their expenses and damages for total or partial disability to work, for the present as well as for the future”.
Legally, the word “expenses” is commonly defined and includes any expenses that the injured person had paid due to the occurrence of the injury they sustained as a result of the tort, such as their medical expenses including doctor fees and hospital treatment costs. Besides this, other necessary expenses may also be claimable by the injured person, such as costs associated with hiring a care giver. Given the above, if a person has been injured as a result of a tort, then it would be prudent to keep careful records of all medical fees they incurred and to hold all invoices and receipts in case they can later claim these back from the party which caused the damage.
Compensation for the Cost of the Future Medical Expenses (Section 443 Para 2)
In addition to the actual medical expense as detailed above, if a tort is able to be proven, then the injured person shall also be entitled to receive the full amount of future medical expenses for treating their injury (provided that future medical treatment is required) including follow-up doctor appointments. Other necessary expenses may also claimable by the injured person such as expenses for hiring a care giver (if deemed necessary by the Court) and travel expenses associated with attending future medical appointments.
Even if the exact cost of future medical treatment is unknown at the time of giving judgment, the Thai Courts can “reserve in its judgment the right to revise such judgment for a period not exceeding two years”,2 hence this gives the Court greater flexibility to ensure that suitable compensation can be ordered regarding future treatment should the injured person’s circumstances change after the judgment is made.
Compensation for the Cost of the Loss of Total or Partial Ability to Work
If a tort is able to be proven in Court, then section 444 of the CCC provides that the expenses and damages for total or partial disability to work (both for the present and the future) can also be claimed by the injured person.
In order for the injured person to be able to claim under this heading, they will need to provide evidence to the Court which proves that they were totally or partially disabled to work as a result of the commission of the tort. Moreover, it should also be noted that to claim monetary compensation under this heading, the injured person will need to provide the Court with evidence of their salary/ income before they were unable to work, such evidence is normally in the form of pay slips, work contracts, bank book records.
Cost of the Loss of the Injured Party’s Services
Section 445 of the CCC provides that if the injured party was “bound by law to perform services in favour of a third person in his household or industry” (such as to an employer, a lawful spouse, parents or a legitimate child) then the cost of the loss of the injured party’s services is able to be compensated to such eligible third party.
In order to be able to claim, the third party (to whom the injured party owes a duty) must provide the Court with evidence that the injured person had duties or responsibility to them. In the case of elderly parents claiming from the party that committed the tort, an example of suitable evidence would be birth certificates showing the legal relationship between the injured party and their parents and bank deposit/transfer slips showing the injured party providing financial support to their parents on a regular basis etc.
Compensation for Non-Pecuniary Loss (Section 446 Paragraph 1)
The cost of the non-pecuniary loss is basically compensation for pain and suffering suffered by the injured person as a result of the tort. It can be difficult to quantify what this amount should be; hence often the Courts will look to previous rulings on cases with similar types of damage to determine/ give guidance what amount of compensation would be appropriate. However, it should be noted that compensation under this heading is generally speaking not large like in the case of US tort law payouts in certain jurisdictions.
Prescription Period (Time Limit for Taking Action/ Making a Claim)
If a person is injured due to a tort and they then wish to make a claim in the Thai Courts then they should carefully consider the time limits that apply under Thai law before making such a claim.
According to section 448 of the CCC, a claim for damages arising from a wrongful act is unable to be submitted to the courts “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 that is punishable under the criminal law for which a longer prescription is provided then such longer prescription period shall instead apply.
Injured Person & Their Contribution to Causing the Injury
Section 223 of the CCC provides that “if any fault of the injured party has contributed in causing the injury they sustained, then the obligation to compensate the injured party and the extent of the compensation to be made will depend upon the circumstances, especially upon how far the injury has been caused chiefly by the one or the other party.”
Hence, if a damaged person is partly responsible for the injury they sustained such as not wearing a seatbelt while being involved in a car accident which was caused by another driver, then this is a factor which will be taken into account by the Thai Courts when determining the amount of compensation they shall be entitled to from the party which committed the tort.
If you require legal support regarding a tort claim in Thailand then please contact us at:
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
Writers: Ryan Crowley (ryan [at] dlo.co.th) & Supitchaya Piyanonpong (supitchayap [at] dlo.co.th)