Get the compensation you deserve. Ask a lawyer on how fault is established in an injury case, figuring out how much your claim might be worth, and the best early steps you can take to help your case and protect your legal rights.
Many foreign tourists are victims of accidents caused by negligence while traveling in Thailand. They may be compensated by their insurance companies for injuries sustained, but an insurance policy may not cover all actual injuries. If this is the case, victims may consider filing a personal injury claim against the perpetrator. Thailand is a country whose liability and compensation for victims is quite different from many Western countries where damages for various intangibles such as pain and suffering, disfigurement and emotional distress can often reach astronomical levels of compensation. In Thailand, the award of intangible damages for a personal injury case may be more limited.
The civil action is the action exercised to obtain compensation for a personal injury suffered by a victim. It differs from the criminal action in that the offender will not be sentenced to a prison sentence but to the payment of damages. Any claim for compensation must be made within one year of the day of your accident or personal injury.
The Thai courts will award you compensation to return you to the situation you were in before the accident. This may include paying your medical bills and ensuring that you are compensated for any lost work, including future work.
For any foreigner, it is possible to make the claim by giving power of attorney to a law firm located in Thailand. However, for the first hearing, it is necessary to appear before the Thai courts. Regarding the items of compensation, victims should be warned that pain and suffering resulting from personal injury is not taken into account by Thai judges.
What is civil liability?
Section 420 of the Thai Civil and Commercial Code provides that a person who wilfully or negligently unlawfully injures the life, body, health, liberty, property or any other right of another person shall be deemed to have committed a wrongful act and shall be liable to pay compensation accordingly. Thus, the Thai Civil and Commercial Code provides that where a wrongful or negligent act is committed, the person responsible for the damage is liable to compensate the victim for the damage.
What conditions must be met to obtain compensation?
Three conditions must be met in order to obtain compensation.
First, there must be a negligent or illegal act. It must be proven that the tortfeasor committed an unlawful act or failed to take the degree of care that a reasonable person would have taken to avoid the foreseeable harm.
Second, there must be harm. Indeed, it must be proven that the injured person has actually suffered the damage alleged in his or her claim for civil liability.
Thirdly, the damage must be caused by such negligence or illegal act. This is the causal link, it must be proven that the damage suffered by the injured person was caused by the negligent or illegal actions of the offender according to the concept of causation.
What is a personal injury?
A personal injury is a more or less significant damage to the body of a victim who has suffered an assault or an accident. This damage concerns both the physical and psychological integrity of the victim. In order for the judges to recognize a bodily injury and grant compensation, it is essential that the victim proves the existence of an indissociable link, also called a causal link, between the injury and the accident that caused the personal injury.
How is the compensation calculated?
In Thailand, the Thai courts determine the amount of damages to be awarded according to the seriousness of the wrongful act committed. They are often less generous than those granted in the West. The objective of personal injury litigation is to ensure that the injured party is compensated for his or her loss. Specifically, the courts seek to place the victim in the position they would have been in had the injury not occurred. For this reason, Thai courts only compensate for a tangible loss. The amount of compensation may include the quantifiable amount for loss or damage to property. It also includes medical expenses as well as past and future loss of earnings if the wrongful act has resulted in partial or total incapacity of the victim to work.
Thai courts tend to focus on quantifiable damages. Damages typically awarded by Thai courts include:
➤ Compensation for lost or damaged property
➤ Compensation for medical bills
➤ Loss of past and future income
➤ Other material losses caused by the injury
In cases where the wrongful act resulted in death, the victim’s heirs may seek reimbursement for funeral expenses and other necessary expenses as well as assistance to those legally entitled to it.
How long does it take to file a lawsuit?
Claims for compensation must generally be filed within one year from the day the injury occurred. Certain exceptions apply, such as where the claims also fall under criminal law, the time limit is longer.
What is the scope of compensation in personal injury cases?
Thai courts seek to put claimants in the position they would have been in had the injury not occurred. This generally involves awarding compensation for expenses and damages for lost earnings, both present and future. If, at the time of judgment, the court finds that it cannot accurately determine the actual consequences of the injury, it may reserve the right to review its decision for a period not exceeding two years. Thai courts generally limit the award of damages to actual losses and do not generally award damages for “intangibles” such as pain and suffering, disfigurement, emotional shock, etc. If such damages are awarded, they are unlikely to be substantial.
Compensation covers the following expenses and damages:
Reimbursement of actual medical expenses
Section 444 of the Thai Civil and Commercial Code provides that if a person subject to a tort suffers an injury to his or her body or health, he or she is entitled to “reimbursement of expenses and damages for total or partial incapacity to work, for the present as well as for the future.”
Legally, the word “expenses” is commonly defined and includes all expenses that the injured person paid as a result of the occurrence of the injury he or she suffered as a result of the tort, such as his or her medical expenses, including doctors’ fees and hospital treatment costs. In addition, other necessary expenses may also be claimed by the injured person, such as the cost of hiring a caregiver. In light of the above, if a person has been injured as a result of a tort, it would be prudent to keep an accurate record of all medical expenses incurred and to retain all bills and receipts in case he or she may later claim them from the party who caused the injury.
Compensation for Future Medical Expenses
In addition to actual medical expenses such as, if a tort can be proven, the injured person is also entitled to receive the full amount of future medical expenses for the treatment of his or her injury provided that future medical treatment is necessary, including follow-up medical appointments. Other necessary expenses may also be claimed by the injured person, such as the cost of hiring a caregiver and travel expenses associated with attending future medical appointments.
Even if the exact cost of future medical treatment is unknown at the time of the judgment, Thai courts may “reserve the right to revise this judgment for a period not exceeding two years”, giving the court greater flexibility to ensure that appropriate compensation can be ordered for future treatment if the injured person’s circumstances change after the judgment.
Compensation for the cost of total or partial loss of work capacity
If a tort can be proved in court, Section 444 of the Thai Civil and Commercial Code provides that costs and damages for total or partial incapacity to work (both for the present and the future) can also be claimed by the victim.
In order for the victim to be able to claim for such damages, he or she will have to provide the court with evidence that he or she was totally or partially unable to work as a result of the crime. In addition, it should also be noted that in order to claim compensation, the injured party will need to provide the court with proof of their wages before they were unable to work, which is normally in the form of pay slips, employment contracts, bank statements.
Cost of the loss of the victim’s services
Section 445 of the Thai Civil and Commercial Code provides that if the injured person was required by law to provide services for a third party in his or her household or business (such as an employer, lawful spouse, parents or lawful child), the cost of the loss of the injured person’s services may be compensated to that eligible third party.
To be eligible for compensation, the third party (to whom the injured person owes a duty) must provide the Court with evidence that the injured person had a duty or responsibility to the third party. In the case of elderly parents claiming against the party who committed the tort, an example of appropriate evidence would be a birth certificate showing the legal relationship between the injured party and his or her parents and bank transfers showing that the injured party regularly provides financial support to his or her parents.
Compensation for non-pecuniary loss
The cost of non-pecuniary loss is essentially compensation for the harm suffered by the injured party as a result of the crime. It can be difficult to quantify this amount. Courts often look to prior decisions in cases involving similar types of damages to determine the appropriate compensation amount. However, it should be noted that compensation is generally small compared to payments made under U.S. tort law in some jurisdictions.
In case of a car accident, who is responsible for paying compensation?
Section 437 of the Thai Civil and Commercial Code states that “every person is liable for damages caused by any conveyance propelled by a mechanism which is in his possession or under his control, unless he proves that the damage resulted from force majeure or from the fault of the injured person.
Thus, the person who drives the vehicle and is in control of it will be responsible for the accident and liable to compensate the victim for the bodily injury suffered.
What if the injured person contributed to the accident?
Sometimes the injured person contributed to the accident. In this case, article 223 of the Civil and Commercial Code states that “if a fault of the injured person has contributed to cause the damage he has suffered, the obligation to compensate the injured person and the extent of the compensation to be paid will depend on the circumstances, in particular on the extent to which the damage has been caused mainly by one or the other party”.
Therefore, if the victim is partially responsible for the injury he or she suffered, for example, if he or she was not wearing a seatbelt while involved in a car accident caused by another driver, this is a factor that will be taken into account by Thai courts in determining the amount of compensation he or she will be entitled to from the party who committed the tort.
Can a foreigner make a personal injury claim in Thailand?
A foreigner who has been injured in Thailand, but does not reside there, can still pursue a personal injury claim by signing a power of attorney for a lawyer to file a case on his or her behalf. However, it is usually necessary for the victim to appear at least once in court in Thailand to testify.
Can you appeal the verdict?
If the final verdict is not acceptable, it is possible to appeal. This can happen if something goes wrong with the initial hearing, if new evidence is discovered, or if there is a delayed reaction to an injury. All of this ensures that a fair judgment is made for all parties.
What is a criminal action?
The criminal action, also called the public action, is the action taken in the name of society in order to repress an offence in application of the criminal law. It is undertaken in the name of society because it aims to repress a disturbance of public order and not to repair a personal injury. This is indeed what differentiates the penal action from the civil action. The object, the author of the action and thus the sanctions attributed according to the action differ if the action is exercised on the civil or penal level.
What is criminal liability?
Section 59 of the Thai Penal Code defines criminal liability and differentiates whether a person has committed an act voluntarily or involuntarily. In principle, the person will not be criminally liable if he or she commits an act unintentionally unless the Penal Code so provides.
The article provides that a person is only criminally liable when he or she commits an act intentionally, unless the law provides that the person is liable when he or she commits an act negligently, or unless the law clearly provides that the person is liable even if he or she commits an unintentional act.
Committing an act intentionally may be defined by the act being committed consciously and at the same time the perpetrator intended or could have foreseen the effect of that act. If the perpetrator does not know the facts constituting the elements of the offence, he cannot be considered to have intended or could have foreseen the effect of such an act. A negligent act can be defined as the commission of an offence unintentionally but without exercising the care that could be expected of a person in such conditions and circumstances, and the perpetrator could exercise such care but did not exercise it sufficiently.
What are the penalties under the Thai Penal Code?
Section 18 of the Thai Penal Code sets out the various possible penalties that may be imposed by the judge depending on the offence. The penalties include the death penalty, imprisonment, fine or confiscation of property. Capital punishment and life imprisonment are not applied to offenders under the age of eighteen.
How long does it take to file a criminal action?
You should be informed that if the criminal action is not taken within a certain period of time, the action is said to be “time-barred”. This means that the offender can no longer be prosecuted because the time limit for prosecution has passed. The action must therefore be taken within the time limit set out in the code, otherwise it will be time-barred. The time limit for prosecuting the offender varies according to the sanction.
Thus, section 95 of the Thai Penal Code provides for the following time limits against the offender:
➤ 20 years for offenses punishable by death, life imprisonment or imprisonment for 20 years
➤ 15 years for offences punishable by imprisonment of more than 7 years but less than or equal to 20 years
➤ 10 years for offences punishable by imprisonment of more than 1 year but less than 7 years
➤ 5 years for offences punishable by imprisonment of more than 1 month to 1 year
➤ 1 year for offences punishable by imprisonment of at least 1 month or by another penalty
What are the penalties for an unintentional accident causing the death of the victim?
Article 291 of the Penal Code states that “Whoever commits the act by negligence and causes the death of the person is liable to a prison sentence of up to ten years or a fine of up to twenty thousand baht”.
Thus, the time limit to act against the offender is fifteen years from the date of the accident.
What are the penalties for unintentional accidents causing bodily injury to the victim?
Article 300 of the Penal Code states that “Whoever commits the act by negligence and this act to cause serious bodily injury to the other person, shall be imprisoned for three years or fined not more than six thousand baht, or both”.
Thus, the time limit to act against the offender is ten years from the accident.
How does the criminal procedure proceed once an offence appears to have been committed?
Responsibility for the administration of criminal law in Thailand is shared by several organizations: the Royal Thai Police, the Attorney General’s Office, the courts of law, the Ministry of Justice and the Ministry of the Interior.
After an arrest, the law enforcement agencies present information about the case and the accused to the prosecutor. According to the Criminal Procedure Code, the investigation is conducted by the investigating officials, who are primarily the police. Thai prosecutors do not have the authority to initiate an investigation or to initiate the case themselves. Prosecutors take office after receiving the investigation files from the investigating officials. The only way to participate in the investigation is to ask the investigators to conduct an additional investigation if the prosecutors believe that the facts or evidence as contained in the file are not clear enough.
When the investigation is complete, a report is filed with the Attorney General, who then prepares an indictment and gives a copy to the accused or his or her attorney, who pleads guilty or not guilty. Based on this plea and the evidence that has been gathered, the judge either accepts the case for trial or dismisses all charges.
Which court has territorial jurisdiction to try the offence committed?
Jurisdiction is the power of the court to hear and decide cases. This jurisdiction is governed by law and the parties cannot waive it. On the other hand, the place of jurisdiction is the place of trial or the geographical place in which an action or proceeding is to be brought. Unlike jurisdiction, venue can be changed by written agreement of the parties.
In general, criminal cases are considered territorial, which means that they must be tried in the place where the offense was committed. However, the Thai Criminal Procedure Code provides for other rules regarding the place where criminal proceedings can be brought.
The other possibilities are as follows:
➤ The place of residence of the accused
➤ The place where the accused was arrested
➤ The place where the investigation is being conducted
What are the specificities of the Thai criminal trial?
In Thailand, only judges decide criminal cases. The jury system does not apply in this jurisdiction. In general, if a person is tried in a criminal or provincial court, he or she is tried by at least two judges without the presence of jurors. However, a single judge may preside over preliminary proceedings. As elsewhere, the court must find evidence beyond a reasonable doubt before convicting an accused person of the offence being tried.
Everyone who has suffered a personal injury deserves to obtain compensation and conviction of the perpetrator. Therefore, Themis Partner also assists you in obtaining compensation by bringing a civil action on your behalf and a criminal action to obtain a criminal conviction of the offender. Do not hesitate to contact us for more information.
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