Actual Damages Concept in Thai Law

This post discusses a fundamental concept in Thai law: “actual damages.” Understanding this principle is essential for businesses and consumers in legal proceedings. While Thai law, as a civil law system, differs in many respects from common law systems (like those in the United States or the United Kingdom), the underlying goal of compensating parties for demonstrable harm is a shared principle. In common law jurisdictions, terms like “compensatory damages” are used to achieve a similar objective of making the injured party “whole.” This article will focus specifically on how this concept is applied in Thailand.

Defining “Actual Damages”

The phrase “actual damages” refers to the concrete and quantifiable losses that occur directly as a result/juristic person as a result of someone’s wrongful actions or a breach of contract. These losses represent the real economic harm suffered by the impacted individual or entity. Practical examples include:

• Direct Financial Losses: This could be the loss of profits, asset repair or replacement costs, replacement costs, and other calculable expenses directly attributable to the wrongful act.
• Bodily Injury: In bodily injury cases, actual damage can include medical costs, lost earnings (both past and future), and rehabilitation expenses.

The Plaintiff’s Burden of Proof

In Thailand, when a person/juristic person seeks to initiate legal proceedings, it becomes the plaintiff’s responsibility to establish an argument that the defendant’s actions have directly resulted in quantifiable damages. This includes presenting valid and robust evidence to persuade the court that the alleged damages arose from the defendant’s actions or lack of action. Plaintiffs may utilize various forms of evidence, such as witness testimonies, documentary evidence, photographs, and expert opinions, to substantiate their claims. This evidentiary process is essential in ensuring the court arrives at a just outcome based on credible proof.

• Financial Documentation: Invoices, receipts, contracts, purchase orders, insurance claim documents, and accounting records are crucial for substantiating financial losses. In some commercial disputes, it is advised to provide the crystal-clear financial figures to the court. For example, a comparison of income statements before and after the damage took place.
• Expert Testimony: Expert witnesses, such as engineers, appraisers, or medical professionals, can provide helpful information in a damage claim.
• Visual Evidence: Photographs or videos can effectively demonstrate the scope and nature of the damage. It is worth presenting information before and after the damage incurred.
• Witness Testimony: Accounts from individuals who witnessed relevant events can help establish the causal link between the defendant’s actions and the plaintiff’s losses.

Establishing Causation

A key factor in establishing actual damages is showing a distinct and direct connection between the defendant’s actions and the harm experienced. The plaintiff needs to prove that the damages would not have happened “but for” the behavior of the defendant.

Specific Considerations for Consumer Protection Cases

In case of damages incurred to the consumer, Thailand has specific consumer protection laws that provide more relaxation regarding the burden of proof for consumers. Normally, the damaged person (or plaintiff) needs to provide concrete and calculable supporting evidence for the case in order to get the award compensation from the court. In the consumer protection case, such burden of proof shifts to the business operators to prove that they deliver products/services in accordance with the standard and have taken sufficient care thereof.

Apart from the burden of proof mentioned above, the law also provides other incentives to consumers, including allowing the plaintiff to file a consumer case verbally, permitting the consumer to file the case at the court that has jurisdiction over the consumer’s residence, and waiving the court’s fee. Moreover, in certain cases, the court may impose punitive damages to the business operator (which hardly exists in typical commercial cases).

Other Forms of Compensation

In addition to actual damages, Thai law permits the awarding of other forms of compensation in certain circumstances:

• Mental Damages: Compensation for emotional distress, pain, and suffering. These are typically awarded in cases involving personal injury or defamation. However, the concrete supporting evidence must be presented to prove calculable damage, such as a medical invoice from a reputable hospital (a government hospital is more suitable for this purpose).
• Punitive Damages: Although they are not as frequent, punitive damages can be granted (this is up to the discretion of the court) in some cases, e.g., consumer protection, damages from dangerous goods, trade secrets, and environmental protections.

Court-Ordered Attorney’s Fees

In Thailand, whether you get attorney’s fees if you win a case isn’t guaranteed—it depends on the court’s discretion. The court takes into account a few things, like how complicated the case was, and whether the fees being asked seem reasonable. It’s worth noting that even if the court grants you some fees, the amount might fall short of what you spent on legal costs—it could be quite a bit less than what you paid your lawyer.

Conclusion

Understanding the principle of actual damages is necessary for business operators in Thailand, as it can help them understand the reasonable claim amount for the defendant and the plaintiff. An overly compensation request can lead to suspicion of the claim and weaken the case. On the other hand, an attempt to cure the damaged person will always demonstrate “good faith” to the court. We hope you find this information helpful!