The Comparison between the Force Majeure Provision of ...elib.coj.go.th/Article/cpt2012_4_6.pdf126Vol.4 No. 1 : 2012 2. The scope of liability of general provision of torts of Thailand

125ปีที่4ฉบับที่1พ.ศ.2555

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


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


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)

130 Vol.4No.1:2012

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


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


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.


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


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.

Documents

The Comparison between the Force Majeure Provision of ...elib.coj.go.th/Article/cpt2012_4_6.pdf126Vol.4 No. 1 : 2012 2. The scope of liability of general provision of torts of Thailand