Reduction of Damages in Tort on the Ground of Fairness

Abstract

This Article suggests that, in exceptional cases where full compensation would lead to an oppressive financial burden on the injuring party or where the degree of fault is extremely disproportionate to the damage, damages can be reduced under Section 438 in conjunction with Section 5 of the Thai Civil and Commercial Code. In this regard, four prerequisites for reduction of damages must be met. First, the injuring party is a natural person. Second, the damage is not caused intentionally or by gross negligence. Third, it is not the damage to life, body, or health. Fourth, full compensation would lead to an oppressive financial burden on the injuring party or the degree of fault is extremely disproportionate to the damage. However, the interpretation of Section 438 in conjunction with Section 5 of the Thai Civil and Commercial Code would not be accepted in practice as there has not been any precedent, especially the Supreme Court decisions, in this matter yet. Therefore, to be clear, this Article also proposes a revision to Section 442 of the Thai Civil and Commercial Code by adding the second paragraph that recognizes four prerequisites for reduction of damages on the ground of fairness.