There is a rumour that the ghost of the killed guy will haunt any follow-up business forever.

Posted by Beer Chang on July 7, 2015 11:15

After the Army took charge various Phuket people were arrested over corruption and mafia like activities. Has even one of these cases made it to court yet? The Army said they had all the evidence on these people so why hasn't anybody been prosecuted yet? If this bungy business was unregistered why hasn't the owner been charged?

Posted by Arun Muruga on July 7, 2015 12:32

I wonder if the contract he signed before the jump also stated the activity was not approved, had no licence to operate, had substandard equipment or untrained personal and had been doing so for 10 years under the noses of the authorities.
The deceased would have assumed the activity was legal, had the required certification and checks and signed the contract on this basis.
Sign a contract for an illegal activity and the operator expects this to provide a level of protection. I don't think so!

Forget the bungy jump operator, sue the owner of the land that allowed it to operate.

Posted by MoW on July 7, 2015 13:08

300,000???...that should make the family feel at peace!

Posted by sky on July 7, 2015 13:38

Agree with MoW ...if the business was not legal then any 'contract' relating to the business cannot be legal.
Pity the owner is not able to do a reenactment.

Posted by benvenuto on July 7, 2015 16:02

MoW

To sue the land owners is the most BS and irresponsible suggestion I have read.

As in turn unlike a legal fantasy that you developed - that landlord is obliged toncheck legality of business - it is just fantasy, as there no such requirement at all.
The only exception concerns illicit drug trade , but then such requirement is not even absolute,mans also not in civil law , but in criminal law, so better leave it in peace.

Tenant is solely responsible for legality of his operations on the leased land.

It is true, that landlord can stipulate in a contract some limitation on a type of use of the leased land - but if he is doing it, then at his discretion, not by obligation created by law - at best , it is a trade custom, nothing more.

I even unable to imagine how landlord could comply with your legal fantasy - to check every time what his tenant is doing, then hire an army of lawyers who would study which permissions are necessary in every case? - NON-SENSE!
Even in PRC they have not fallen for such anti-business measures, but you still can suggest it to North Korea!

Posted by Sue on July 7, 2015 18:07

Sue,
It quite simple Sue, well for the rest of us.
The land is owned, the owner has allowed someone to conduct a business upon his land, without approval, without permits and without insurance.
As the owner of property you carry a liability to the public or anyone else you allow onto that land. You even have a responsibility in regards to trespassers.
The owner has allowed an illegal business to operate and we can assume he received rental or commissions for the use of his land.
He has been a beneficiary of the illegal activity.
A person has died and as a result of the land owners action, or in this case inaction. The land owner failed in his obligation to the public, who he allowed to enter upon his land by allowing an unauthorised, uninsured activity for which approval is required.
If he did not fail in this obligation to the public, or did not allow this illegal activity to occur there would have been no death.
The bungy jump operator and the owner of the land are jointly responsible by allowing the bungy jump to operate illegally.
You could probably include the local authority as well for failure to enforce laws and regulations and as it has operated for 10 years, they would find it hard to argue they were unaware the bungy jump existed.
It's easier to get a feed from a big fish and let the big fish feed off the smaller ones!

Posted by MoW on July 7, 2015 22:26

MoW,

1. that all is your legal fantasy, it doesn't have even slightest link to reality - I am sure also in Australia.
However , that would fit to highly authoritarian state with elements of marker economy, you can submit your legal doctrine on that, and they may find it useful for their purposes.

"The land is owned, the owner has allowed someone to conduct a business upon his land, without approval, without permits and without insurance.
As the owner of property you carry a liability to the public or anyone else you allow onto that land. You even have a responsibility in regards to trespassers.
The owner has allowed an illegal business to operate and we can assume he received rental or commissions for the use of his land.
He has been a beneficiary of the illegal activity."

===

COMPLETE NON-NONSENSE

A tenant is solely responsible for his conduct and business activities on the land .
A landlord is NOT responsible for tenant's conduct and activities, hence he does not bear obligation to verify if tenant's business is legal, illegal or partly illegal (sole semi-exception is about drug trade, that I mentioned above - and it is only within criminal law - and also here you fail to distinct between those illegal acts that are illegal by nature, or may be illegal in certain circumstances - operating whatever business surely is not an act that illegal by nature , except North Korea).

There is no at the moment such obligation of landlord, incl. specifically toward public, which you have invented above.

Yes, there's a business custom that a reasonable landlord set in a contract some (general) limits of what a tenant can do on his land - but landlords are not obliged to do that at all, it is only for better securing their property related economic interests, nothing about public interests.

And, I'm a bit laughing here, sorry, how do you see that a landlord in real life execute a major intrusion into tenant's activities on his land by collecting detailing observation what a tenant really is doing there, and then checking all the details of all aspects of tenant's business that it is legal, incl. obtaining various business permits and licenses..? With all respect to thorough and logical presentation, but LOL, sorry again, couldn't hold myself..

Thus here there is no basis of landlord's liability in tort.


2. Amount of damages and compensation of harm that can be claimed in case of death doesn't include non-pecuniary damages (non-pecuniary damages virtually do not exist in Thailand law except three exception cases 1) provided by Act on Liability for Damage Arising from Unsafe Goods B.E. 2551 - but this doesn't apply here as the act covers only purchase of goods by consumer, not goods used by service provider to consumer 2) bodily harm that is not death 3) deprivation of liberty ):

"In the case of death, the types of damages are the following: funeral or other necessary expenses, medical expense and loss of earning prior to death3, compensation for the third party for loss of the injured party's services4, compensation for the third party for loss of the legal support.5 Since the civil and commercial code provide only these six types of damages in the injury causing death, the granted damages may not cover all the harms that the decedent or the person in relationship with the decedent have sustained.
For example, the damages sustained by the decedent such as decedent's loss of earning in the future or the pain and buffering from the injury prior to death are not included in the actionable Slamages6. Also, some damages sustained by the person in relationship with the decedent such as pain and suffering or losses of consortium are unable to claim under the Thailand law.7"

"In Thailand, non-pecuniary damage is granted only for some injuries, namely bodily harm and deprivation of liberty.17"

"First of all, non-pecuniary damage, according to section 446, is entitled to the party only in the case of bodily harm but negated in the case of death. The absence of non-pecuniary damages in the case of injury to death brings about the situation that the injured party is left unfairly uncompensated. An anomalous outcome may arise due to the fact that the damages in the case of bodily harm are likely to be greater than the damages in the case of death. This will distort the motivation of people to utilize the proper care because the reasonable people will lack the motivation to take more care to avoid death than to avoid bodily harm.24"

(The Non-Pecuniary Damages in Wrongful Acts Causing Bodily Harm and Death: The Comparative Study on U.S. and Thailand Laws By Worrawong Atcharawongcha http://goo.gl/yMigfd )

So, the deceased highly unlikely had any legal support obligation in force as he was too young and assumingly single .

The only definite part damages are burial and related exposes.

300,000THB offer is way above what claimant is entitled by the law, so should accept it and take it.

It doesn't matter whether this amount was in contract of not, and what is a legal force of the contract, or whether such contract ever even existed.

So no need to go to court against anyone, if these 300,000THB are paid.

3. In part of liability in tort of state agencies, Tort Liabilty Act BE 2539 limits its to unlawful acts.
If policemen issued fine ticket to 5 wrongly parked vehicles, but didn't to 3 other vehicles there, was his act unlawful?
Is act of omission of lack of compliance by any business by state agency within area of its competence unlawful?
of course not, unless there are some additional circumstances in a picture.

E.g. a state agency has received complaint or get information otherwise about lack of compliance , but didn't investigated and didn't step with an enforcement - also here, it is by far not always lack of action will be unlawful.

And , litigation will take 10years, and giving that there is 300,00THB on a table that is way above what could be claimed by law from all defendants, is a factor not to go this way.

4. "Illegal business"
However here we are taking about situation when the business is *allegedly*illegal - in some unknown to us aspects.

Tax evasion? No impact on civil law relationships.

Lack of incorporation as company? Highly unlikely, that such business can not be operated by a natural person.

Lack of business permits in regard of bungy? I am not sure at all that here were needed any specific permit prior commencing this activity, I assume that there is no such requirement.No impact on concluded contracts and liability in tort.

Lack of registration with municipality or alike? It is merely informative submission, so can't result in any serious consequences in terms of civil liability.

I don't think this business indeed illegal, there were probably some compliance loose holes, but it doesn't matter in this situation.

Posted by Sue on July 8, 2015 02:41

MoW

the best way to get off the hook of obsessive fantasies, incl. legal ones, is to get in touch with reality - in this case to read Civil and Commercial Code, Book 3, Title IV Hire of property, Chaper I General provisions and Chapter II Duties and liabilities of the letter, i.e.Sec.537 through Sec.551.

That cure work almost imminently!

But if you still will point a finger in a provision there that landlords have general obligation to check business permits & insurance of a tenant,... then all I will be able to say, those mushroom were really strong indeed.

Posted by Sue on July 8, 2015 06:01

Sue,
Your response is typical of a person who fails to grasp the concept of liability and risk and how these vary depending on whether a business operates legally of illegally.

In simple terms, especially for your benefit, if the business was fully legal, the death would be a injury to the public caused by an extreme activity and where the risk of an injury is possible and the operator ensures a waiver is signed to reduce a risk of a claim against him.

If, as in your opinion, whether a business is operating legally or illegally makes no difference, why would anyone bother with approvals, permits and insurances and the payment for these expenses?

Searching the internet may find you sections of legal requirements and obligations but they wont provide you an interpretation of what they actually mean.

As always, it is enjoyable to read your comments.

Posted by MoW on July 8, 2015 06:40

MoW

don't camouflage between many words the lack of basis for your legal fantasy - that landlord is responsible for his tenant conduct, as a landlord has no obligation to care about tenant's acts ;)
(except for drugs trade, or may be few similar exception more).

Business permits for a business run by a tenant are required to be obtained by a tenant, have nothing to do with a landlord obligations .
Again, no need to mix up things - who is operating business and is liable to get permits - to hide your lack of understanding of tort related issues.

It is apparent that you lack an understanding of liability in tort in Thaland: Thailand Civil and Commercial Code is based mostly on German BurgerGesetzbuch(BGB), and a part about tort is pasted completely, except some minor swing in one paragraph.

Thus an interpretation of statues on liability in tort in Thailand follows closely interpretation of liability in tort of BGB.

You may find it helpful to get acquainted with a system of liability in turn that is based Germanic laws, just few years old book and fully officially in a public domain
"Basic Questions of Tort Law from a Germanic Perspective"
http://goo.gl/z60qwL

That would help to understand sources of liability in tort , and consequently to reduce a volume of legal fantasies and non-sense conclusion on this matter, otherwise you better post on subject which you really know.

Posted by Sue on July 8, 2015 08:08

Sue,
You have returned to the bad old days of gibbering. I'll leave you to do that on your own where both of you at least understand each other.

Posted by MoW on July 8, 2015 09:04

MoW

please don't describe your creative invention of a duty of care of a landowner to look for a legal compliance of tenant as a valid law :)

no such duty exists neither under civil law,nor under common law ( I'm not sure about North Korea, Niue and Nauru - but absolutely sure about Thailand and Australia), except for drug trade - and even then it is different - "knowingly allowing", and may be few more similar exceptions.
For residential properties there occasionally could be a duty for landlord to react on illegal activity of tenant's, but again, it is something else.

Since there is no such duty, as your invention describes, there is no liability in tort for violating non-existing duty.

You are free to demonstrate with facts that your innovation is already in use in the Kingdom or at least in Australia ;)

Posted by Sue on July 8, 2015 09:21

Sue,
I have never seen someone say so little of relevance in so many words.

It is pointless correcting you as you neither listen nor understand and I assume like many who read PW, don't really care.

Posted by MoW on July 8, 2015 12:56