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The Comparison between the Force Majeure Provision of
Thailand and the Scope of Liability of U.S. in Tort Cases
Supichai Sirichairungson1
1. Introduction
The force majeure provision has been prescribed in the Civil and
commercial code of Thailand (CCT) since B.E.2485, but the application of force
majeure provision to be an excuse of the defendant is less. Therefore, this article
will be explained the application of force majeure in CCT and the interpretation
of force majeure provision in tort case by the Supreme Court of Thailand.
In the perspective of comparative law, this article will compare the
interpretation of force majeure provision in tort cases of Thailand and the scope of
liabilityofU.S. in tortcases inorder tounderstand theapplicationof forcemajeure
of Thailand and to develop the interpretation of force majeure provision of Thailand.
1 Judge of the Civil Court, LL.B. (Thammasat University), Barrister at law, LL.M. in Business Law (ThammasatUniversity),CertificateinInternationalBusinessandTaxation(DukeUniversity),LL.M. in International and Comparative law (Illinois Institute of Technology Chicago-Kent College of Law) (Chicago-Kent College of Law Scholarship)
126 Vol.4No.1:2012
2. The scope of liability of general provision of torts of Thailand
and the scope of liability in tort of U.S.
2.1. The scope of liability of general provision of torts of Thailand
The elements of torts consist of an action of person, willfulness or negligence,
unlawful, and damage are totally proved, the plaintiff still has to prove that damage is
caused by the tortious conduct of defendant. If he cannot, the defendant will not be liable.
Eventhoughthescopeofliabilityofdefendantisnotclearlystipulatedinsection
420 of CCT and that provision stipulates that “is bound to make compensation therefrom”,
the causation theory is applied in order to prove whether or not the defendant is liable
because of his tortious conduct. The causation can be categorized into two theories;2
1. The direct cause test
The idea of this theory has no result in case where there is no cause. If
there are many conditions causing the result, every cause is equal to make the result.
For example, A uses the knife to stab B and C then also stabs B. B dies because of two
wounds caused by A and C. Both A and C will be liable for the death of B. Another
example,AthrowsthecigaretteintothedrygrasscausedfireburningintohousesofB,
C, and D. A will be liable for all damages of the houses of B to D.
The conclusion of this theory is that one cause or many causes affected
totheresultisequallyimportant.Whethertheactioncauseslittleorseveredamage,itis
deemed to be the result arisen from that cause; the tortfeasor thus is fully liable.
The weak point of this theory is injustice for the tortfeasor because
2 Susom Supanit, the explanation of tort law, Bangkok, Nitibannakarn, 1998, page 45-50
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they will be more liable than they should have. They may sometimes be liable to the
intervening cause which is principally caused the result of the damages. The intervening
cause consists of the event occurred by intentional or negligent conduct of human
called the tortious conduct or the unexpected event occurred by the nature or human
which is collectively called force majeure as the example below.
SupposedthatAassaultsB,Bseverelyinjures.Bthenistakenintothe
hospital.WhileBistakingintothehospital,thethunderboltcausesthefiretoburnthe
ambulance. As a result, B is dead. In case where the direct cause theory is applied, A is
liable to the death of B.
2. The proximity cause test
The idea of this theory is that the only action which is principally caused
the result will be liable for the damages. An illustration is that A pushes B felling down.
Bhasthinskullsohedies.WhentheheadofBisfallentothefloorandBdies,Awill
not be liable to the death of B. A is just only liable for the assault.
The weak point of this theory is that the actual damage will not be
compensated because an action caused the reasonable result is only made the liability
of defendant. In case where this theory is applied for the facts that the force majeure
intervenes and it causes more injury to the injured person, the tortfeasor is not liable to
the second result.
The court of Thailand mostly applies direct cause test to the causation
in the intentional tort and negligence tort case. The proximity cause test is sometimes
applied in order to be justice for the parties otherwise the tortfeasor may be more liable
than his action such as the example of thin skull case. In case where the tortfeasor knows
that an injured person has thin skull, the tortfeasor will be liable to the death of B.
128 Vol.4No.1:2012
The problem of using direct cause test theory is whether it makes the
unlimited liability to defendant in case that there are many causes to make tortious
conduct or not. For example, A hits B’s head, C stabs B, and D also stabs at the same
wound of C; then, B dies. If direct cause test is applied, A, C, and D will be liable
for the death of B. According to section 438 of CCT prescribed that “the court shall
determine the manner and the extent of compensation according to the circumstance and
the gravity of the wrongful act”, that provision is used to relieve the strict interpretation
by direct cause test because the compensation will be determined by the circumstance
and gravity of torts. Therefore, the court can limit the extent of the liability of defendant.
As a consequence, in case where the undisputed facts heard by court appear that each
tortious conduct of each tortfeasor can equally contribute the death of B, A, C, and D is
equally liable to B’s descendant. On the other hand, in case where each tortious conduct
of each tortfeasor does unequally contribute the death of B, the court will designate the
damages on the gravity of each tortious action.
Another problem of direct cause test is in case where the intervening cause,
which is unintentionally or intentionally happened from human or unexpected event
occurredbynature,happensafterthefirstcauseisend,thefirsttortfeasoriswhether
liable to the result of intervening cause or not. The court of Thailand separately interprets
as follow;
First, if the intervening cause occurred intentionally or negligently by
human has a power to cause the last damage and the damage can be foreseeable; the
firsttortfeasorwillbeliabletoinjuredpersonforthelastresult.
For example, at the late night, B is hit by A’s negligently drive. A then left
B on the road. A could foresees that B may be hit by other cars and died. If B is hit by
other cars, A and the owner of car hitting B will be liable for the death of B. They will
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be jointly liable as a joint debtor in case where they are taken legal action together but
thedamagesisdesignatedonthegravityofeachtortiousconduct.Theliabilityoffirst
tortfeasor is the same in case that the intervention occurred by nature, unintentionally,
or no negligently happened by the human has a power to cause the last damage and the
damage can be foreseeable. However, the human who unintentionally or no negligently
acts the last result is not liable to injured person because the action is not completed as
the elements of tort conduct in accordance with section 420 of CCT.
Second,iftheintentionalornegligentinterventionisoccurredbyhuman
andtheresultarisingfromfirsttortiousconductisunforeseeable,thesecondtortfeasor
will be liable to an injured person depended on the gravity of damage.
For example, A carefully burns the garbage and dry grass in the remote
area fromother’s residences.When thefirealmost extinguishes,Bneeds toconceal
his liability to destroy the C’s properties, so the fuel is poured to C’s house; it is then
burned. The action of B is intervening cause which is unforeseeable by A. Thus, A will
not be liable for the damage of C’s house because the relationship between A’s action
and B’s action can be separated. As a result, only B will be liable for C. (the intervening
causeishappenedbyintentionalactionofsecondtortfeasor)
Another example, A assaults B, B severely injures. B then is taken into the
hospital.WhileBistakingintothehospital,theambulanceisburntbythethunderbolt,
even A can prove that the thunderbolt is unexpected event occurred by nature deemed to
be the unforeseeable event, A does not release the liability of B’s injury. A is still liable
to pay the compensation determined by the discretion of court to the injured person
depended on the severe injury of B. The compensation is awarded on the injury of B.
(theinterveningcauseishappenedbytheunexpectednature)
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Regarding the structure of general provision of tort, to be liable to the
injured person in tort case, thefive elements as discussedhave to be totally proved
which is burden of plaintiff. If the damage of plaintiff cannot be proved, the court cannot
adjudicate the liability of defendant for the plaintiff. However, in case that the plaintiff
can adduce the evidence all of the elements except damages, it can be designated by
court according to the CCT section 438.
2.2. The scope of liability of U.S. tort law
InU.S.tortlaw,thescopeofliabilityisoftenappliedinnegligence.Thereare
two theories regarding the scope of liability to be explained in this article namely3;
2.2.1. No worse off limitation
The defendants are liable to their tortious conduct causing harm to another
or his property. Under this theory, they are not liable if the harm almost certainly would
have occurred anyway in the absence of their or anyone else’s tortious conduct. The
caseisexemplifiedbelow,
In Kingston v. Chicago & Northwestern Railway Co. the defendant’s
negligentlysetfireandanotherfireofunknownorigin,eachofwhichwasindependently
sufficienttodestroytheplaintiff’sproperty,mergedtogetheranddestroyedtheproperty.
ThesupremecourtofWisconsinheld that thedefendantwouldnotbe liable for the
destructionoftheplaintiff’spropertyifitprovedthatanotherfirehadanaturalorigin.4
Another example, the defendant’s negligently constructed dam burst during
3 Richard W. Wright, The Grounds and Extent of Legal Responsibility, 40 San Diego L. Rev. 1425 (2003)
4 Ibid, page 1434
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anordinarystormandtheresultingflooddestroyedtheplaintiff’shouse,butthehouse
wouldhavebeendestroyedanywaybyafiresetbylightningthathadalmostreachedthe
housebutwhichthefloodextinguished.Thedefendant’snegligencewasanactualcause
ofthedestructionofthehouse,andthelightningfirewasapreempted(wouldhavebeen
sufficientbutnotactuallysufficient)condition.Iftheplaintiffhadnoinsuranceagainst
suchfires,theplaintiffwouldhavesufferedanoncompensablelossevenintheabsence
of the defendant’s negligence, and the defendant should avoid liability under the no
worse off limitation on the extent of legal responsibility.5
To apply this theory, whether or not it can be used, the defendant has the
burden of proof to show that the unforeseeable and unpreventable event is merely
proximately caused to the plaintiff. The unforeseeable and unpreventable event can be
called that act of god.
Thecoreapplicationofthistheoryisthatincasethatthefirsteventofthe
damage of plaintiff is caused by tortious conduct of defendant, and the second event is
caused by nontortious conduct, the defendant will not be liable to the damage that would
have been occurred by the second event. However, in case where the second event is
caused by tortious conduct of whomever, the defendant will be liable to the plaintiff.
2.2.2. Superseding cause
Before explaining the superseding cause, the proximate cause is firstly
explained. The proximate cause is initially applied by the direct cause approach. The
application of direct cause approach is that the defendant will be liable to the injured
person although the unforeseeable and remote cause for example;
In Re Polemis and Furness the court held that a workman dropped a board into
5 Ibid, page 1435- 1436
132 Vol.4No.1:2012
the hold of the plaintiff’s ship, which caused a spark and ignited petrol vapors in the hold,
destroying the ship. Although the explosion was deemed unforeseeable, the defendant was
liable, since the negligent act of its employee was the direct cause of the harm.6
This approach lets the defendants be liable more than their tortious conduct.
Therefore, to solve the problem of unlimited liability of defendant, the scope of risk
approach is developed to be applied in the proximate cause. If the defendants should
foresee the risk that will be caused the damage and they did not avoid that risk, they will
be liable to the damage. For example, in the late night, while a person drive slowly in the
road in his village, someone runs to pass in front of his car. He then cannot stop his car
and hit that person. Applying for the scope of risk approach, the car driver will not be
liable to the injured person because he did not make a risk to cause harm to others, and
this event is not foreseen by him. On the other hand, in the late night, if he drives fast
in his village, he should foresee that someone may walk in his village, so he should not
drive fast. Thus, in case of the damage occurred, he will be liable to the injured person.
If the injured person then dies, he has to be liable to the death of the injured person.
The superseding cause can be explained by this example, A negligently
dropshisflowerpotfromhisbuilding,andBjumpstoescapeA’sflowerpot.Atthe
same time, C negligently drives and hit B, which is called intervening cause. Then, B
is hit and dies at the hospital. The problem is whether or not A should be liable for the
death of B. The superseding cause can be answered this problem. A is not foreseeable
that B will be hit by C’s car, so the intervening cause is cut off the liability of A, and
superseded negligence of A. Thus, A is not liable to the death of B. The intervening
cause is the superseding cause.
6 Joseph W. Glamnon, the law of torts, 3rd edition, Aspen Publishers, 2005, page 185-186
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3. The comparison between the force majeure provision of Thailand
and the scope of liability of U.S.
After clarification the scope of liability in tort cases of CCT and the scope
of liabilityofU.S., this topicwillcompare theforcemajeurewhichis theexcuseof
releasingtortsliabilityofThailandandthescopeofliabilityofU.S.tortslaw.
1. The interpretation of the force majeure provision of Thailand
The consideration of the application of force majeure provision is whether the
cause can be preventable or not. If yes, it is not force majeure, but if no, it is force
majeure. The preventable can be interpreted whether the tortfeasor is negligent or not.
BelowistheexampleoftheinterpretationofSupremeCourtofThailand.
SupremeCourt judgment514/2537 theundergroundelectricwirespossessed
by the defendant was broken. Normally, they had to be buried 60 centimeter from the
ground but at the place where an accident happened they were buried just 20 centimeter
fromtheground.Althoughthefloodhadcome,thewires,whichwerenotbroken,were
never short circuit. Furthermore, the defendant had the meter for checking the short
circuit but he had never used it. The metropolitan electricity authority advised that the
defendant should renovate the wire at the place where the accident happened. On the day
that the accident happened, the son of plaintiff had walked through the footpath which
wasflood,andhewaselectrocutedbythecurrentandthendied.Theaccidentcouldbe
prevented but the defendant ignored to repair the wires. The event was not deemed to be
force majeure that can be raised by the defendant to release his responsibility.
According to the above example and theSupremeCourt judgment 75/2538,
7653/2547, the tortfeasors cannot raise force majeure as an excuse to release their
134 Vol.4No.1:2012
liability because they did not use appropriate care. Thus, they are liable to the injured
person. On the other hand, if they use the appropriate care, they will be released from
liability. The court interprets by examining whether or not the tortfesor negligently act,
and the defendant has to prove to reach the standard that they use the appropriate care.
The interpretation of force majeure is thus stuck with the negligence. As a consequence,
the force majeure provision is whether useless in tort case or not because if the tortfeasor
can prove that he uses an appropriate care, he will not liable to an injured person. The
element of tort is subsequently not completed. The action of tortfeasor is not tortious
action. Not only the interpretation of force majeure of Thailand related to negligence
but it depends on the willful action also. In case where an action is not willful, the court
will adjudicate that it is the force majeure. As a consequence, the interpretation of force
majeure of Thailand is stuck with the willful or negligence.
Asaresult,accordingtotheSupremeCourtjudgment,theforcemajeureprovisionin
section 8 of CCT can be applied in the general provision of tort law in case of the intervention
happenedbyhumanorunexpectednaturecausingthefirsttortfeasorbeliablemorethanhis
action. The force majeure can consequently be used as a scope of liability of tortfeasor.
Forinstance,accordingtothesupremecourtjudgment514/2537,thedefendantwas
negligent because he did not repair the electric wire. If the defendant needs to excuse by
raising that he had used appropriate care which could be interpreted as no negligence. He
wasnotliablebecausehisactionwasnotcompletedastortbuttheSupremeCourtinterpreted
that it is not force majeure. Additional suppose that the son of plaintiff was electrocuted
buthecouldevadefromelectrocution.Whilehewassittingtorestafterelectrocuting,the
thunderbolt came and burned him. He then died. The thunderbolt can be interpreted as a
force majeure to scope the liability of the defendant, or it can be called intervening cause. The
defendant will be liable only the damage regarding the electrocution to the son of plaintiff.
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The force majeure can sometimes release the liability of tortfeasor in case where the tortious
action is not harm to other but the intervention causes the damage to an injured person. In my
view, the force majeure should be interpreted as the example above..
Moreover,afterstudying thescopeof liabilityofU.S. tort lawand thescopeof
liability of Thailand, all of the application of force majeure raised to the court is the issue that
only one situation occurred and the defendant raised the force majeure issue excusing that he
has no negligence to release total liability. The force majeure can however be raised to limit
or release liability of the defendant when two circumstances occur as discussed above.
2. The no worse off limitation in Thailand aspect
According to the example that the defendant negligently constructs the dam and
thefloodthendestroysthedamandtheplaintiff’shouse.Atthesametimethefireset
by lightning also comes to destroy the plaintiff’s house. Applying to the no worse off
limitation, the defendant is not liable to the damage of plaintiff.
If the above example happens in Thailand, suppose that the elements of tort
inCCT can be satisfied to the court, the courtwill adjudicate that the defendant is
liable. The defendant cannot raise the force majeure to release his liability because
thefirsteventoccurredbyhimarisenfromhisnegligence.Althoughanothersituation
simultaneously happens and can be sufficient to damage the plaintiff’s house, the
defendant is liable.Conversely, suppose that the factschanges into two issues;first,
the defendant is not negligent construct the dam; second, the storm destroys the dam
causingtheflooddestroyingtheplaintiff’shouse,thiseventcanbeinterpretedasaforce
majeure because it is an unpreventable event and the defendant also uses the appropriate
care to protect this situation. The defendant is not liable.
Inmyview,ifthistheorycanbedevelopedbytheSupremeCourtofThailand,
136 Vol.4No.1:2012
the scope of liability of the defendant can be expanded. In addition, the idea of this
theory is fair for both parties because if the plaintiff previously has the damage why the
defendant has to be responsible if he can prove to reach the standard.
Due to the fact that the system of Thai law is civil law, this theory can be broadly
interpretedsection8ofCCTinthetortcasebytheSupremeCourtastheexampleabove
to expand the scope of liability of defendant.
3. Superseding cause in Thailand aspect
AfterdiscussionregardingthescopeofliabilityofThailandandU.S.,thistopic
will compare the differences and similarities with the following;
The theory of direct cause test lets the defendant be unlimited responsible to the
plaintiff.TheSupremeCourtofThailandusedtoadjudicatethecasebyusingthedirect
cause theory in the case below;
SupremeCourtjudgment1898/2528theemployerofthedefendantnegligently
drove and crashed the plaintiff’s truck. The rubber carried in the plaintiff’s car was
stolen.Itwasthedirectcause.Whentherubberpricewaspaidtotheownerofrubber,the
plaintiff could subrogate the right of the owner of rubber to recourse from the defendant.
The above case is used the direct cause to apply for the liability of defendant;
similarly, in Re Poleris as explained. Consequently, both countries use the same idea to
apply the liability of the defendant. The proximity cause test may sometimes be used
together with the direct cause test.
However, the development of theory is used to limit the liability of defendant.
TheforeseeabilityorscopeofriskapproachisdevelopedinU.Sincaseoftheintervention
happened.Similarly inThailand,when thedirectcause isapplied, thedefendanthas
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unlimited liability to the injured person. The foreseeablility or scope of risk is therefore
developed to limit liability of defendant when the direct cause theory is applied in case
intervening cause happened. Therefore, the superseding cause is also applied in Thai
court under the foreseeable rules by using with the direct cause theory. The superseding
cause is also used to cut off the liability of defendant. There is a criminal case which is
applied by using the superseding cause.
Supreme Court judgment 659/2532 the decedent was assaulted by defendant. The
decedent was taken to the hospital. The doctor said that if the decedent was taken to the care
of the doctor at the hospital, the decedent had a chance to survive. The descendant seemed that
the decedent was very suffering, so they decided to withdraw the life-sustaining treatment. This
circumstancewascutofftheliabilityofthedefendant.Itwasdeemedtosupersedethefirstcause.
After studying the no worse off limitation and superseding cause, it can be said
that the no worse off limitation is happened from the unforeseeable and unpreventable
event called act of god, and the superseding cause is happened from the nature or human
depended on whether it can be foreseeable or not. Therefore, when the two theories are
compared with the force majeure provision, it can be said that the force majeure provision
is broadly interpreted. In case where the no worse off limitation and the superseding cause
interpreted narrowly are combined, it may be said that it is the force majeure.
4. Conclusion
After researching the force majeure provision of Thailand from the interpretation
ofSupremeCourtofThailandandtheexplanationofThaischolars,theconclusionwill
be summarized into three issues with the following;
4.1. The application of force majeure provision of Thailand
138 Vol.4No.1:2012
As discussed in the previous topic, it can be seen that the interpretation
is related to the negligent or willful conduct of tortfeasor. Thus, the force
majeure provision can be applied for the general provision of tortious conduct in
accordance with section 420 of CCT although it is not prescribed in section 420.
In case we look from the perspective of the injured person, if the court broadly
applies the force majeure provision, the people in may not live happily because
there is no responsible person, and the insurance is not mostly done in the Thai
social. As a consequence, in my opinion, there is no case that the force majeure can
be applied in tort cases. However, although the force majeure provision in section 8
of CCT has never been applied in tort cases, but it is applied for the contract case
and the civil procedural, in case of the postponement of the legal proceeding in
court, and it has ever been interpreted as an excuse of the parties related in the
civil case. Furthermore, the amendment of that provision is not needed because
the section 8 of CCT can be interpreted in case that the evidence can be proved.
4.2. No worse off limitation in Thailand aspect
As discussed in previous topic, the theory has never been applied in Thai case. If
thistheorycanbedevelopedbytheSupremeCourtofThailand,thescopeofliabilityof
the defendant can be expanded. In addition, the idea of this theory is fair for both parties
because if the plaintiff still has the damage why the defendant has to be responsible if
he can prove to reach the standard.
4.3. Superseding cause in Thailand aspect
ComparingbetweenThailandandU.S.theory,theapplicationofbothcountries
are the same. The court of Thailand use the direct cause test to adjudicate the case
together with the superseding cause test.
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