Torts Transcription for Finals

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TORTS TRANSCRIPTION for finals– RM403

NOTES from ate rhen of September 2, 2010:

Vicarious Liability of Teachers

1. Legal Basis

ART. 2180:

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TEACHERS OR HEADS OF ESTABLISHMENTS OF ARTS AND TRADES SHALL BE LIABLE FOR DAMAGES CAUSED BY THEIR PUPILS AND STUDENTS OR APPRENTICES SO LONG AS THEY RETAIN IN THEIR CUSTODY.

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When will the obligations of teachers arise?

Illustration:

Atty. Largo dismissed the class early. The student while waiting for his ride home was hit by a blunt object in the head. Is Atty. Largo liable?

To determine whether or not the teacher is liable:

1. First, ask who caused the injury.

The law provides that: Teachers or heads of establishments of arts and trades shall be liable for damages caused by their pupils and students or apprentices….

2. Second, was the student under the custody of the teacher?

The law provides that: Teachers or heads of establishments of arts and trades shall be liable for damages….. so long as they retain in their custody.

When the damage was caused by someone not his or her student, you cannot hold the teacher liable.

The law says that the damage must be caused BY their pupils and students or apprentices and not WHO. Necessary because the basis of the liability is the supervisory control that he has over the students. He stands in loco parentis. And the student must be in the custody of the teacher.

When does he remain in the custody of the teacher?

Illustration:

If Atty. Largo dismissed the students earlier because she has a meeting at 8:00 pm and an injury was caused by one of her students. Is Atty. Largo no longer liable because she already dismissed the class? When can it be said that the student was in the custody of the teacher?

AMADORA DOCTRINE:

The phrase used in the cited article — "so long as (the students) remain in their custody" — means the protective and supervisory custody that the school and its heads and teachers exercise over the pupils and students for as long as they are at attendance in the school, including recess time. There is nothing in the law that requires that for such liability to attach, the pupil or student who commits the tortious act must live and board in the school, as erroneously held by the lower court, and

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the dicta in Mercado (as well as in Exconde) on which it relied, must now be deemed to have been set aside by the present decision.

How do you define recess time?

A "recess," as the concept is embraced in the phrase "at attendance in the school," contemplates a situation of temporary adjournment of school activities where the student still remains within call of his mentor and is not permitted to leave the school premises, or the area within which the school activity is conducted. Recess by its nature does not include dismissal. Likewise, the mere fact of being enrolled or being in the premises of a school without more does not constitute "attending school" or being in the "protective and supervisory custody' of the school, as contemplated in the law. (Salvosa Case)

Test:

As long as it can be shown that the student is in the school premises in pursuance of a legitimate student objective, in the exercise of a legitimate student right, and even in the enjoyment of a legitimate student right, and even in the enjoyment of a legitimate student privilege, the responsibility of the school authorities over the student continues. Indeed, even if the student should be doing nothing more than relaxing in the campus in the company of his classmates and friends and enjoying the ambience and atmosphere of the school, he is still within the custody and subject to the discipline of the school authorities under the provisions of Article 2180.

When a school may be held liable.

Where the school is academic rather than technical or vocational in nature, responsibility for the tort committed by the student will attach to the teacher in charge of such student, following the first part of the provision. This is the general rule. In the case of establishments of arts and trades, it is the head thereof, and only he, who shall be held liable as an exception to the general rule. In other words, teachers in general shall be liable for the acts of their students except where the school is technical in nature, in which case it is the head thereof who shall be answerable. Following the canon of reddendo singula singulis "teachers" should apply to the words "pupils and students" and "heads of establishments of arts and trades" to the word "apprentices."

Who is a teacher in-charge?

The teacher-in-charge is the one designated by the dean, principal, or other administrative superior to exercise supervision over the pupils in the specific classes or sections to which they are assigned. It is not necessary that at the time of the injury, the teacher be physically present and in a position to prevent it. Custody does not connote immediate and actual physical control but refers more to the influence exerted on the child and the discipline instilled in him as a result of such influence. Thus, for the injuries caused by the student, the teacher and not the parent shall be held responsible if the tort was committed within the premises of the school at any time when its authority could be validly exercised over him.

Defenses that the teacher may raise

Diligence of a bonus paterfamilias. As long as the defendant can show that he had taken the necessary precautions to prevent the injury complained of, he can exonerate himself from the liability imposed by Article 2180, which also states that:

The responsibility treated of in this article shall cease when the Persons herein mentioned prove that they observed all the diligence of a good father of a family to prevent damages.

Will the age of the student matter in holding the teacher in charge, school or its administrator’s liable?

Art. 218 of the Family Code Art. 2180 of the Civil Code1. The school,2. its administration, and3. teachers, or4. the individual or entity or institution engaged in child care

Teacher is held answerable by the law for the act of the student under him regardless of the student's age.

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Shall have special parental authority and responsibility over the minor child while under their supervision, instruction or custody.

TRANSCRIPTION STARTS HERE = September 2, 2010; //princessmillan & vanessaniemes

Liability in torts and damages

Teachers:

Why teachers are held liable?

Basis of their liability?

when will the obligation of teachers arise?

Art.2180: the obligation imposed by Article 2176 is demandable not only for one’s own act or omissions, but also for those of persons for whom on is responsible.

Lastly, teachers or heads of establishment of arts and trades shall be liable for damages caused by their pupils and students or apprentices, so long as they remain in custody.

For example: we continue to have brownouts, class dismiss early, as a result as u were waiting outside some blunt object hit X, my student by some unknown person who just come out from kwerks restaurant. Do you think I will be held liable?

2 reasons here: why teachers should be not be held liable.

The incident happen outside the school, not within the premises and after class hours.

The one who caused the injury is not a student.

Can we combine them can we have a third reason? Which requires us to have a look at the basis of teacher’s liability.

The basis of teacher’s liability is found in the 2nd to the last paragraph of Art. 2180

Lastly, teachers or heads of establishment of arts and trades shall be liable for damages caused by their pupils and students or apprentices, so long as they remain in custody.

To be able to hold the teacher liable therefore, first question that should be asked is who caused the injury?

If it caused by someone not his student, the teacher must not be held liable even if the one injured is his student because the liability arises for damages caused BY not caused TO the student. In the situation above I could not be held liable because the one who caused the injury was not my student.

The first pre-condition there is that the damages must be caused by a student. Necessarily because the basis of the liability is the supervisory control over the student or that he stands in locu parentis. And the student must have to be in the custody of the teacher.

When does the student remain in the custody of the teacher?When can it be said that the student remain in the custody?

Case: Amadora (cebu; usjr)Is the teacher not held liable simply because there was no class held anymore?Facts: the students went to school to submit a physics project three days before the graduation, and he was shot by a classmate and the student died. Case was filed against the school, the rector, the class adviser. What was the basis for

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holding the adviser liable? Why does the parent filed a case against the principal? No classes were held at this time. He was there to submit a project. The teacher in charge was not present at the school at that time. What does remaining in the school’s custody mean? When can we say that the student remains in the custody? Necessary that classes is held?HELD:

The test to make the teacher liable, is that it is not even necessary to hold classes, or that the student be in his class to hold him liable, it’s enough that during that time the teacher has control over the student and the student is in the premises in order to pursue a legitimate student objective, or even if he is only in the school enjoying some legitimate student right, or legitimate student privilege the responsibility of the school authorities continues, an example then of a legitimate student privilege being enjoy by a student is when he is in the campus relaxing and enjoying the company of classmates and enjoying the ambience and the atmosphere of the school then we can still say is that he remain in the custody.The only question is who has custody of the student at that time or what is the reason he was there. So long as the student is there to pursue a legitimate student right or objective, the teacher for that particular period may be held vicariously liable.RECESS?

Does the student remain in the custody during recess?What’s the test for it to be called a recess?

The test is not necessarily the length of time though it could be an indicator. The test is whether the student can…What happens in the case of Salvosa?FACTS: this case happen in a school in Baguio.HELD:

During recess the SC held that the student is still to remain in the custody of the school, what is the test?. The test is whether really the student is free to leave the premises, it has been held by the SC that it should be distinguished from dismissal, for recess is a temporary break where the student is not free to whatever he or she wishes. If its recess, he still remains in the custody of the teacher with more reason if he stays in the school premises. So in the case of Amadora, because it happens in the school premises and the student was there to pursue legitimate student objective as he was there to pass a project. So is the teacher held liable? The teacher in the case of Amadora was not held liable.

In the case of Amadora, the (Physics) teacher was not held liable.

the test is not whether there are classes that are ongoing

SC says you remain to be in the custody for as long as you are in the school to enjoy student objective, student right, student privilege, including enjoying the ambiance of the school

we said that you remain in the custody if you are in school pursuing a legitimate student objective

REASON: SC ruled that the teacher still had exercised due diligence even if he was not there.

What is the fact there that brought out to the court that made SC declare that the teacher cannot be held liable even if the teacher was not there?

SC also sees that he was exercising due diligence (in that…)

The teacher can be held liable if the one who committed the act/omission is a student who remained to be in his custody BUT the defense of the teacher there was that he exercised due diligence in the supervision of his student

How would you negate liability given that it was already established that the act/omission was caused by your student who remained to be in your custody even if you were not there because the student was there pursuing legitimate student objective? How? What defense will you be putting up? The kind of the defense that really exonerates?

The defense that you can set up is that you exercised due diligence

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But how do you show due diligence as a teacher?by showing that you have been supervising your students while they were still in your custody. (by showing the facts that will prove that, that’s how you show due diligence)

And how do you show supervision? It’s not just a matter of obeying rules and regulations, you show supervision if you have not been remised in maintaining discipline

Would it matter if the one who committed the crime is a 23-year- old law student? Would the scenario be different as this one is committed by a 17-year-old student? Would the facts change? Would the ruling change? Would the scenario be changed if this is committed by one who is 23?

Teacher will still be held liable because if you look at Art. 2180 (NCC) there is no qualification as to age. (unfortunately!)

What about school administrators? Is there also basis to hold them liable?

Yes. If the institution is a vocational school

As a matter of law if the school is not a vocational school, can you hold the school administrators liable? Yes.

When?When they did not exercise due diligence for acts/omissions committed by studentsWould age matter? Would it matter if the student who committed the acts/omission is a minor or not?

Yes. We look at Art. 218 of the Family Code as the basis of holding school administrators liable

Art. 218 of the Family Code says, the school, as well as the administrators…and teachers, they will still be held liable for acts/omissions of MINOR child

So if the act/omission is committed by a minor child, you also hold the school, the administrators and the teachers liable.

But if the act/omission is committed by one who is NOT a minor? There will be no more liability?

Apply Art. 2180. The teacher will be liable. Note that Art.218 of the Family Code also says, the liability also extends to any and all activities committed and authorized by the school, its administrators and teachers, including fieldtrips outside the premises of the school.

So if the acts/omission is committed by a student, who is a minor, three persons may be held liable on the basis of Art. 281 of the Family Code:

School Teachers Administrators

But if the act is committed by one who is not anymore a minor, your legal basis there is just Art. 2180 that limits the liability to teachers

Remember that the Defense is due diligenceand due diligence was best exemplified in the case of Amadora vs. CA

SEPTEMBER 8 2010; //jonsingco

Largo: When will the liabilities of Cities, Municipalities and provinces arise?

A:When it comes to streets, roads or public building under their control and supervision

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(Q: which requires ownership? In the case of Guilatco vs. City of Dagupan?)

Largo: no reading, facts of the case please

Largo: extent of the injury here. Is it all about injury? No loss of earnings for example?

A: she wasn’t able to work for 20 days.

Largo: who was held Liable?

A: the city of dagupan was held liable, even if they don’t own the road where the accident happen because ownership is not necessary so long as they have they have control and supervision over the road

Largo: so you mean to say Local Government can still be held liable even if the incident happens in a national highway? ; what’s the reckoning point for liability?

A: control and supervision over the road

Largo: why can’t you sue the local government, I thought states cannot be sued.

A: since Art. 2189 NCC expressly states the liability of the LGU:

Art. 2189. Provinces, cities and municipalities shall be liable for damages for the death of, or injuries suffered by, any person by reason of the defective condition of roads, streets, bridges, public buildings, and other public works under their control or supervision. (n)

Largo: supposing you don’t have Art. 2189 fixing liability of LGU can you still sue? If there is no law are they still liable? A: yes?

Largo: basis?

(another person called)

Largo: is it possible for us to recite without looking at your notes? In as much as you answer your exams without looking at your notes?

Largo: without Art. 2189 you can still sue the LGU on the basis of another law Sec. 24 of the LG code on the liability, but on the question of can it be sued or not be sued? For example they can’t maintain the roads?

SEC. 24. Liability for Damages. - Local government units and their officials are not exempt from liability for death or injury to persons or damage to property.

-If it acts through unincorporated agencies like DPWH?

As supposed to LGU’s? they are instrumentalities (to determine suability) do you look at the function?

A: you look at the Charter as to suability, because once it has charter it has a separate juridical personality, it can be sued.

As to liability? Art. 2189 and sec. 24 of LG code

Strict liability torts:

Largo: What sets this classification different from quasi-delict we have studied in the past?

A: In quasi-delict liability is based on negligence, in strict liability, negligence is not necessary present and is held liable

Largo: what is the basis? What’s the justification, how can they impose liability to one who is not even negligent?

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A: for the protection of the public

Largo: where does public policy come in? how can it justify to one who is not even negligent?

A: reasoning in the case in Vestil vs. CA (one who has possession of animals) one held liabile notwithstanding he is not negligent.

Largo: why do you think its allowed in certain few instances to impose liability to one who is not even negligent.

Largo: two grounds 1. Natural equity and 2. Principle of social interest

Largo: where does social interest come in? in relation to strict liability torts?

Largo: never mind that the owner is not negligent, who do you hold liable liable?

A: upon him who derives some pleasure, utility or service in the interest of also distributing the risk or loss, it may be best to hold liable someone who derives some pleasure, utility or service rather than the person who was injured not compensated at all. As it is the possessor of animal is liable regardless if he is the owner or not.

Largo: Ownership is not a defense. Fact of not being the owner is not the defense, the fact that you possess the animal then liability attaches? No defense?

A: the defense that the plaintiffs own negligence caused the injury or also force meajure (but plaintiffs own negligence better option) same with manufacturers and processors of food stuffs.

Largo: when is the head of the family is held liable?

A: if that person living in the building throws something outside and causes damage. Things thrown or falling from the building.

Largo: what if that person is not the owner?

A: ownership does not matter in this Spanish decision, even if he be the lessee of the building this liability may still attach.

Special torts

How does this differ from strict liability torts? Largo: difference?

Largo: in the case of Quezon City Government vs. Dacara ; special torts refer to those you can find in Articles : 20, 21, 28, 29, 30, 32, 34, 35 and Art. 309

Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to another, shall indemnify the latter for the same.

Art. 21. Any person who wilfully causes loss or injury to another in a manner that is contrary to morals, good customs or public policy shall compensate the latter for the damage.

Art. 28. Unfair competition in agricultural, commercial or industrial enterprises or in labor through the use of force, intimidation, deceit, machination or any other unjust, oppressive or highhanded method shall give rise to a right of action by the person who thereby suffers damage.

Art. 29. When the accused in a criminal prosecution is acquitted on the ground that his guilt has not been proved beyond reasonable doubt, a civil action for damages for the same act or omission may be instituted. Such action requires only a preponderance of evidence. Upon motion of the defendant, the court may require the plaintiff to file a bond to answer for damages in case the complaint should be found to be malicious.

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Art. 30. When a separate civil action is brought to demand civil liability arising from a criminal offense, and no criminal proceedings are instituted during the pendency of the civil case, a preponderance of evidence shall likewise be sufficient to prove the act complained of.

Art. 32. Any public officer or employee, or any private individual, who directly or indirectly obstructs, defeats, violates or in any manner impedes or impairs any of the following rights and liberties of another person shall be liable to the latter for damages:

(1) Freedom of religion;

(2) Freedom of speech;

(3) Freedom to write for the press or to maintain a periodical publication;

(4) Freedom from arbitrary or illegal detention;

(5) Freedom of suffrage;

(6) The right against deprivation of property without due process of law;

(7) The right to a just compensation when private property is taken for public use;

(8) The right to the equal protection of the laws;

(9) The right to be secure in one's person, house, papers, and effects against unreasonable searches and seizures;

(10) The liberty of abode and of changing the same;

(11) The privacy of communication and correspondence;

(12) The right to become a member of associations or societies for purposes not contrary to law;

(13) The right to take part in a peaceable assembly to petition the government for redress of grievances;

(14) The right to be free from involuntary servitude in any form;

(15) The right of the accused against excessive bail;

(16) The right of the accused to be heard by himself and counsel, to be informed of the nature and cause of the accusation against him, to have a speedy and public trial, to meet the witnesses face to face, and to have compulsory process to secure the attendance of witness in his behalf;

(17) Freedom from being compelled to be a witness against one's self, or from being forced to confess guilt, or from being induced by a promise of immunity or reward to make such confession, except when the person confessing becomes a State witness;

(18) Freedom from excessive fines, or cruel and unusual punishment, unless the same is imposed or inflicted in accordance with a statute which has not been judicially declared unconstitutional; and

(19) Freedom of access to the courts.

In any of the cases referred to in this article, whether or not the defendant's act or omission constitutes a criminal offense, the aggrieved party has a right to commence an entirely separate and distinct civil action for damages, and for other relief. Such civil action shall proceed independently of any criminal prosecution (if the latter be instituted), and mat be proved by a preponderance of evidence.

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The indemnity shall include moral damages. Exemplary damages may also be adjudicated.

The responsibility herein set forth is not demandable from a judge unless his act or omission constitutes a violation of the Penal Code or other penal statute.

Art. 34. When a member of a city or municipal police force refuses or fails to render aid or protection to any person in case of danger to life or property, such peace officer shall be primarily liable for damages, and the city or municipality shall be subsidiarily responsible therefor. The civil action herein recognized shall be independent of any criminal proceedings, and a preponderance of evidence shall suffice to support such action.

Art. 35. When a person, claiming to be injured by a criminal offense, charges another with the same, for which no independent civil action is granted in this Code or any special law, but the justice of the peace finds no reasonable grounds to believe that a crime has been committed, or the prosecuting attorney refuses or fails to institute criminal proceedings, the complaint may bring a civil action for damages against the alleged offender. Such civil action may be supported by a preponderance of evidence. Upon the defendant's motion, the court may require the plaintiff to file a bond to indemnify the defendant in case the complaint should be found to be malicious.

If during the pendency of the civil action, an information should be presented by the prosecuting attorney, the civil action shall be suspended until the termination of the criminal proceedings.

Art. 309. Any person who shows disrespect to the dead, or wrongfully interferes with a funeral shall be liable to the family of the deceased for damages, material and moral.

Largo: cases in special torts common element is the presence of malice or bad faith (ill will)

Largo: when can you say there is malice?

1. Abuse of right – when a right causes damage to another, that’s the kind of special torts referred by law. (right to sue) the exercise of one’s right to sue should not be visited with consequences so severe then you should not be held liable.

A: malice or ill will or bad faith is present when the act is done intentionally to cause prejudice to another party.

Largo: bad faith presupposes intent, no way you can hold person liable for abuse of right on the grounds on being negligent. Because there should be intent there (bad faith and negligence does not go hand in hand)?

A: it depends on the type of negligence. If simple negligence, no bad faith, if gross negligence malice or bad faith may be present (leal good anwer ^^)

Largo: how does this distinguish from Art. 21 and abuse of right or art 20 or 19? Backsh case.

Largo: when is it 21 or when is it 20 or 19?

Art. 21- When there is a violation of some costums or morals which makes our provisions on our system of reparation in the Philippines, as compared to the law on torts in the US. It is broader, it need not anchor on some negligence or criminal acts because it can cover even moral wrong.

Case MVRS vs. Islamic Da’wah – group of muslim believers, who filed a case against a publication because it published what they considered derogaratory remarks Gabuya, diba you’ve interned with OSG you go read for the class… RYAN reads in tagalong with feelings:

“ ehem alam ba ninyo na ang mga baboy (Largo: gahi man lagi ryan) at kahit anong uri ng hayop sa Mindanao ay hindi kinakain ng mga Muslim? Para sa kanila ang mga ito ay isang sagradong bagay. Hindi nila ito kailangang kainin kahit na sila pa ay magutom at mawalan ng ulam sa tuwing sila ay kakain. Ginagawa nila itong Diyos at sinasamba pa nila ito sa tuwing araw ng kanilang pangingilin lalung-lalo na sa araw na tinatawag nilang ‘Ramadan”

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They filed a case invoking “emotional distress tort action” as a special tort, requirements are that:

1. there must be a conduct of the defendant which is reckless and intentional and extreme and outrageous

2. corresponding feeling of hurt that it causes mental and emotional distress caused is also severe (extreme shame, and humiliation) or so disabling

Continue tom. Special torts and medical malpractice

September 15, 2010; //hazelescañan

KINDRED TORTS: Medical Malpractice

- Let’s go now to medical malpractice. How was this defined by the Supreme Court?- You have a case that tells you what are the elements needed for the case to be considered as medical negligence.

What happened in the case of Rueda?

Case of Garcia-Rueda vs. Pascasio:

- The issue here is about the jurisdiction of the Ombudsman. But before the SC went into that, it first explained what is medical negligence.

(below is what Atty. Highlighted in the case)

“A word on medical malpractice or negligence cases.

In its simplest terms, the type of lawsuit which has been called medical malpractice or, more appropriately, medical negligence, is that type of claim which a victim has available to him or her to redress a wrong committed by a medical professional which has caused bodily harm.

In order to successfully pursue such a claim, a patient must prove that a health care provider, in most cases a physician, either failed to do something which a reasonably prudent health care provider would have done, or that he or she did something that a reasonably prudent provider would not have done; and that that failure or action caused injury to the patient. “

- What happened to the husband?- Going into what SC said about medical negligence. We know that it is the relief that is provided by the Courts against

medical professional who has caused harm or death upon a person. But what did SC say? What are the things you need to establish if you are bringing out a case of negligence?

Hence, there are four elements involved in medical negligence cases: 1. Duty, 2. Breach, 3. Injury 4. Proximate causation.

First, there must be a duty. You must first establish that there is a patient-physician relationship. What did SC say on how to establish this? Do we need to establish, for example, an existence of some form of remuneration? Such that if you are treated but it’s for free?

Would the fact that there is no exchange of professional fee matter?

o So we are just going into the fundamentals, that doctors like lawyers, there is relationship regardless of whether or not there is compensation involved. Once it is established that there is a patient-physician relationship, we go into the DUTY. So what is the duty of a doctor? So that he cannot be said that he committed medical negligence?

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o Whose standard? What do you mean “standard”? “Medical practitioner standard”? Let us see what happened in this 2000 case of Reyes.

Case of Reyes vs. Sisters of Mercy:

- He was diagnosed of what? Leal answers, typhoid fever.

- What brought about the diagnosis? SC said that at that time typhoid fever was prevalent in that community. Because he was suspected to have

typhoid fever, what was administered?- What triggered the typhoid fever?- Did he really die of Ventricular Arrythemia Secondary to Hyperpyrexia and typhoid fever?

They were saying that they shouldn’t have administered upon him the Widal Test. And on top of that, they shouldn’t have also given chloromycetin without conducting sufficient test. But you have to understand that from what SC found out typhoid fever was prevalent in the locality. Upon what standard of test do we test the duty of the doctor so that it can be said that they were remiss of their obligation?

Is it the ordinary standard of care? Or the extraordinary standard of care? For example “I am ill”, what will be the standard of care I should be attended to? So the standard of care that we apply on Jorge Reyes who was treated in Manila would be different of

standard of care had he been treated in Surigao? Leal do you agree that you test them on the prevailing standards of locality? There are fundamental standards that are common among all medical practitioners. But on the degree of

care, here is what the SC has said:

o That you test him on the “skill and competence . . . that a physician in the same or similar locality . . .” Is that alright Mr. Leal that we test him on the skill and competence in the same locality?? Any argument you can think of to change the mind of the SC? Is this reasonable?

o So the standard is that which is prevalent in the locality??o Take note of what SC said. You have this statement saying that there is a certain degree of care

that you hold out of a person based of a doctor rather a physician based on reasonable average merit among all ordinary physicians. But as to facilities for example, or their ability to respond to certain emergency cases, you have to look as well into the skills and competence prevalent in the locality. Although this has been subject to several criticisms because if the standard of care is that which is only prevalent in the locality, what’s to improve their standard of care. If for example, what is prevalent in the locality is that: We cannot test for everyone suffering of fever, and they say automatically it is dengue because there are no facilities. And that care that is expected of you what’s to prod of you of improving your craft. There are criticisms on the locality rule. But remember that is what the SC adopted in this case of Reyes.

- (below is what Atty. Highlighted in the case)

“He was taken to the Mercy Community Clinic by his wife. He was attended to by respondent Dr. Marlyn Rico, resident physician and admitting physician on duty, who gave Jorge a physical examination and took his medical history. She noted that at the time of his admission, Jorge was conscious, ambulatory, oriented, coherent, and with respiratory distress. Typhoid fever was then prevalent in the locality, as the clinic had been getting from 15 to 20 cases of typhoid per month. Suspecting that Jorge could be suffering from this disease, Dr. Rico ordered a Widal Test, a standard test for typhoid fever, to be performed on Jorge.They contended that had respondent doctors exercised due care and diligence, they would not have recommended and rushed the performance of the Widal Test, hastily concluded that Jorge was suffering from typhoid fever, and administered chloromycetin without first conducting sufficient tests on the patient’s compatibility with said drug.

The practice of medicine is a profession engaged in only by qualified individuals. It is a right earned through years of education, training, and by first obtaining a license from the state through professional board examinations. Such

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license may, at any time and for cause, be revoked by the government. In addition to state regulation, the conduct of doctors is also strictly governed by the Hippocratic Oath, an ancient code of discipline and ethical rules which doctors have imposed upon themselves in recognition and acceptance of their great responsibility to society. Given these safeguards, there is no need to expressly require of doctors the observance of “extraordinary” diligence. As it is now, the practice of medicine is already conditioned upon the highest degree of diligence. And, as we have already noted, the standard contemplated for doctors is simply the reasonable average merit among ordinarily good physicians. That is reasonable diligence for doctors or, as the Court of Appeals called it, the reasonable “skill and competence . . . that a physician in the same or similar locality . . . should apply.”

- You also have the requirement that you need to establish the injury was caused by the negligence of the physician. So what happened in the case of Ramos? The first case, NOT the Motion for Reconsideration.

Case of Ramos vs. CA

- Removal of gallstones is a very simple operation. But what happened to him?- Here, is your landmark case telling you what kind of evidence you need to adduce that injury was caused by the

negligence of the doctor? SO in medical negligence cases, your case will fall on the basis of expert testimonies. As a rule in medical negligence, the proximate causation must have to be established by expert testimonies.

That is why it is a very expensive case to try, because you have to bring out expert witnesses. And to engage the services of an expert witness and to bring him for example here, from your locality would be very expensive. SC said that as a rule, that is a requirement. But you can do away from that if you are able to establish that the injury is something that would have occurred had the physician exercised the due care, and that is the matter of common knowledge. Did this case fall under that?

o You need to establish that the resulting injury is such that it would have arose out of mistake of the physician and that is a matter of common knowledge and experience.

Atty highlighted this:

“Where common knowledge and experience teach that a resulting injury would not have occurred to the patient if due care had been exercised, an inference of negligence may be drawn giving rise to an application of the doctrine of res ipsa loquitur without medical evidence, which is ordinarily required to show not only what occurred but how and why it occurred”

o What facts are brought out here that made SC say you don’t need expert testimony here? While as a rule, every medical negligence case must have expert testimonies? What happened to her right after the administration of anaesthesia?

SC said, in those instances you can dispense with medical testimony, although as a rule, every medical negligence case must have to be based on medical expert testimony.

How was this applied in the case of Flores vs. Pineda? How did SC look at the 4 basic elements?

Case of Flores vs. Pineda

- Teresita Pineda, a 51-year old unmarried woman, complained of general body weakness, loss of appetite, frequent urination and thirst, and on-and-off vaginal bleeding, and brought to United Doctors Medical Center for general check-up. As for her other symptoms, he suspected that Teresita might be suffering from diabetes and told her to continue her medications. Teresita did not return the next week as advised. However, when her condition persisted, she went to further consult Dr. Flores at his UDMC clinic travelling for at least two hours from Nueva Ecija to Quezon City with her sister, Lucena Pineda.

- Xxx… Dr. Felicisima proceeded with the D&C operation (Mr. Leal then says RASPA, hehehe) with Dr. Fredelicto administering the general anesthesia.

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- Xxx… Teresita’s condition had worsened. She experienced difficulty in breathing and was rushed to the intensive care unit. Further tests confirmed that she was suffering from Diabetes Mellitus Type II. Insulin was administered on the patient, but the medication might have arrived too late. Due to complications induced by diabetes, Teresita died in the morning of May 6, 1987.

- Here, notice the steps taken by the SC. That is the importance of the case why this was assigned. Notice the steps taken by the SC in resolving this medical negligence case:

First, look at the DUTY. If it could be established that there was a patient-physician relationship, and then it is established what was the duty there of the physician. After that, establish that there is a causal connection of the injury and the breach of duty. Which was occasion for the Court, before the SC went into awarding damages.

If you look at the damages awarded,

“WHEREFORE, we AFFIRM the Decision of the CA dated June 20, 2003 in CA G.R. CV No. 63234 finding petitioner spouses liable for negligent medical practice. We likewise AFFIRM the awards of actual and compensatory damages of P36,000.00; moral damages of P400,000.00; and exemplary damages of P100,000.00.

We MODIFY the CA Decision by additionally granting an award of P50,000.00 as death indemnity and by reversing the deletion of the award of attorney’s fees and costs and restoring the award of P100,000.00 as attorney’s fees. Costs of litigation are adjudged against petitioner spouses.

To summarize, the following awards shall be paid to the family of the late Teresita Pineda:

1. The sum of P36,000.00 by way of actual and compensatory damages;2. The sum of P50,000.00 by way of death indemnity;3. The sum of P400,000.00 by way of moral damages;4. The sum of P100,000.00 by way of exemplary damages; 5. The sum of P100,000.00 by way of attorney’s fees; and6. Costs.

Maybe that is the reason why you file a case to get some vindication. But if you go for damages, you don’t get much. Here is a case of someone dying on the basis of medical negligence, but the family only gets moral damages which is only 400,000, exemplary is only 100,000 for several years of litigation. It doesn’t pay much!!!

- Atty highlighted this part of the case:

“Although generally, expert medical testimony is relied upon in malpractice suits to prove that a physician has done a negligent act or that he has deviated from the standard medical procedure, when the doctrine of res ipsa loquitor is availed by the plaintiff, the need for expert medical testimony is dispensed with because the injury itself provides the proof of negligence. The reason is that the general rule on the necessity of expert testimony applies only to such matters clearly within the domain of medical science, and not to matters that are within the common knowledge of mankind which may be testified to by anyone familiar with the facts. Ordinarily, only physicians and surgeons of skill and experience are competent to testify as to whether a patient has been treated or operated upon with a reasonable degree of skill and care. However, testimony as to the statements and acts of physicians and surgeons, external appearances, and manifest conditions which are observable by any one may be given by non-expert witnesses.”

September 16, 2010; //julsebacolod

What must you establish when ou are proving medical negligence?-the four element must be prove.

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Elements:i. Duty – to apply the standard of care required by the profession

o Standard of care: the prevailing standard of care in the community. (Locality Rule)ii. Breach of duty – failure to apply the standard of care required.

iii. Injuryiv. Proximate cause

Aside from the four elements, is there anything to prove?-there must be a doctor-patient relationship bec. there could be a scenario that even if you are check up by a doctor,

there is no relationship between the two.

Example: a company doctor who check up those who seek to apply for position in such company.

What is the duty of the physician in a medical negligence case, who tell us whether this one is he due care that he must provide?

-First it must be establish that there Is a duty and it must be a standard of care.

How do we prove proximate causation, by what proof?-by expert testimony.. at all time? No, it could be the prevailing standard of care in the community.

Is it possible for the physician to be liable even if the injury is cause by another physician?-Lets have a look of professional service case. In this case, there are two doctors involved. Who is liable among the

two? The SC adopted the captain of the ship rule, that even if it was the other doctor who operates the patient, dr. Ampil was held liable bec. he supervise and examine the work of the other doctor.

What about the hospital? Is there any liability on their part?-we got 3 cases here, the 2 ramos case and this recent case. Lets take up the first ramos case. SC said the hospital is

liable. Y? what happened with ramos here?Ramos suffered a comatose and died after 14 years. Take a look at this bec this case is peculiar with regard

as to damages. So is the hospital liable?

SC said there is ER-EE relationship. What is the test? (just like Marquez). Can the doctor here be consider as EE? In this case they are called consultant. In the first case the hospital is liable bec they are EE but try to look at the ground enumerated by the SC in this first case and contrast with what the SC said in the same scenario but on motion for reconsideration. In the first case, SC said there is significant control by the hospital but on motion for reconsideration the SC said on the findings of hiring (four-fold test) that it’s not hiring but accreditation. On the aspect of control, there is no EE-ER relationship bec the physician conduct his work according to his own mean and the hospital has no control of it.

Two bar exam ago, we are telling the student that there is no ER-EE relationship within hospitals and that of doctors. Is that still the rule?

-no..we go back to this case of Professional service v. Agana. Where can we draw the inference that the dr. is an EE of the hospital even if in reality there is no supervision?

-under the doctrine of apparent authority. Why did the SC said that there is apparent authority in this case or agency by estoppel? The SC said, putting the names of the Dr. you hold them as part of the hospital.

Then there is this law I want you to take a look. R.A. 9439 it provides that it is sufficient that the patient should execute promissory notes or either by mortgage or guaranty. What you got to remember is that you can only invoke this law when if you stayed in a NOT private room or those confined in wards.

DAMAGES

Damage and damages, the same? -No.. where does the distinction lies? Damages is the compensation for the damage. Damage means loss or harm

suffered. So similar with the concept of injury then? No.. it is invasion of legal rights

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So, for every damage there is injury? No, there can be damage without injury. Example: filling of an action against another in good faith. In this case there is no reparation because injury or evasion of legal right that will amount to damage bec. there would be damage without injury but if there is injury there got to be damage.

What are the kind of damages?MoralExemplaryNominalTemperateActualLiquidated

So next meeting the flow of discussion is actual damages and how to prove it to determine liability. What is actual damages for breach of contract or tort

September 22, 2010; //jonsingco

Largo: what is Damage as distinguished by Damages? Would it be a pre condition to award damages?

A: injury as a pre-condition relate with “damnum absque injuria”

Largo: one of those damages that can be awarded is actual damages. What is it?

Bacolod: (dapat complete) adequate compensation for pecuniary loss

Largo: two things to bear in mind in the definition “Adequate compensation” aims to fully as much as possible compensate you, this is important to establish or prove if you ask for actual damages and “pecuniary loss”, which has something to do with “for that you have suffered that has been duly proved”, for what has been lost monetarily

Largo: as to determine the adequacy of compensation will depend on the kind of damage or injury sustained. Because the adequate compensation if it were a breach of contract case or quasi-delict or crime.

Largo: example of breach of contract case?

Bacolod: breach of contract of carriage

Largo: what would be the scenario in a breach of contract?

Bacolod: existence of a contract

Ex. Rough riders (Smooth Riders) having a contract with Jules Bakeshop, to transmit the crops from Bacolod to Cebu. As fate would have it Smooth riders turned turtle and all of the crops and prawns where spoiled, Jules was not able to serve for his restaurant. Assuming for an ordinary weekend you are supposed to earn 50k net of expenses. Question: how much can you ask from Smooth Riders?

Bacolod: price of the lost goods + lost income of 50k expected income.

Largo: what if you where to use those crops and prawns for a wedding and expected to earn a net of 500k, unknown to Smooth Riders, you departed from your usual earning of 50k due to that one time engagement.

Bacolod: they will be liable for 500k after duly proving such claim.

Largo: 1st determine if the person who caused the breach acted in Bad faith or Good faith. Under Art. 2201

Art. 2201. In contracts and quasi-contracts, the damages for which the obligor who acted in good faith is liable shall be those that are the natural and probable consequences of the breach of the

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obligation, and which the parties have foreseen or could have reasonably foreseen at the time the obligation was constituted.

In case of fraud, bad faith, malice or wanton attitude, the obligor shall be responsible for all damages which may be reasonably attributed to the non-performance of the obligation . (1107a)

The test of liability for breach of contract or in quasi-delict. The test is if the person who caused the breach acted in good faith or bad faith.

If good faith- foreseeabilty is the test. If bad faith, even if not foreseeable, liable!

Largo: what about in Crime? Example?

Bacold: Murder, Pongot Fred

Largo: Pongot died, but you did not intend to kill him only maim him, but his right arm was cut off, he was unable to take the bar, he was rushed to the hospital and incurred 108k, liable?

Bacolod: yes plus actual expenses in the hospital

Largo: what if after you maimed him, you did not know he was diabetic, he developed complications and he died, will you still be liable for funeral expenses, there was no foreseeability here, are you still liable?

Largo: in Art. 2202 the general test in Crimes even in Quasi-delict the test is not foreseeability but the proximate cause, if the proximate cause is the act of the accused in the quasi delict case

Art. 2202. In crimes and quasi-delicts, the defendant shall be liable for all damages which are the natural and probable consequences of the act or omission complained of. It is not necessary that such damages have been foreseen or could have reasonably been foreseen by the defendant.

Largo: but as to the whether he can be actually liable will depend on what kind of evidence you bring into trial. But not only that, you need to tie up this discussion with general or special damages

General- need not be specifically pleaded, they can be embraced in a general prayer “other reliefs and remedies consistent with law and equity are likewise prayed for” – those which naturally result from the act

Special – must be specifically pleaded otherwise you cannot recover even if the proximate cause of such is the act of the accused in the quasi delict case – one that does not usually arise or ordinarily result from the act of the defendant.

Example of special damages: “ assuming Pongot is a Gurl, and Jules hated her, and Jules waited after pongots Torts Exam, so Jules hit Pongot in the stomach. Such was so strong, that it caused damage to her uterus and that she cannot have a child FOREVER!” you act of punching is the proximate cause, but if it is not specifically pleaded that she (pongot) cannot have anymore a child.

Largo: but if you are able to establish actual monetary, pecuniary loss incurred, you can be awarded for damages. Art. 2200 for profits not obtained can also be included, for loss of earning capacity (refer formula) and attorneys fees and interest.

Largo: for interest lets discuss about it tom. Who’s your class president? (ate Rhen) inday they should let you rest you’ve been president since 1st year. =)

Largo: let’s discuss attorneys fees, what happened in the case of QUIRANTE VS. IAC

Largo: when we say attorneys’ fees it composes of two aspects. 1. Ordinary Concept – compensation given to the lawyer for the services rendered and goes to the lawyer. And 2. Extraordinary Concept- aspect of damages awarded to the plaintiff if compelled to litigate

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Largo: for tomorrow, what are the two very important preconditions for attorneys fees as an element of damages may be awarded. =) assignment tom. Up to moral damages.


- What are the requirements before the Court can award attorney’s fees? There are 2 things to consider regarding attorney’s fees, as an item or component of damages:

o 1. You must find its justification in the body of the decision. o 2. It must also be decreed in the dispositive portion.

On the first requirement, Supreme Court looks for 2 things. The justification must be anchored on provision of law, and that is factual basis.

Factual basis

I. Justification in the body of the decision

Law (Article 2208); and

II. Dispositive Portion

- When can attorney’s fees be awarded? What does the law provide, when is it proper to award attorney’s fees?- Is there any provision of law enumerating the instances when attorney’s fees should be awarded?

See Article 2208, NCC You find all enumerations and instances when attorney’s fees may be awarded as item of damages. SC says

that has to be decreed in the body of the decision. What is the legal basis for the award of attorney’s fees? For example, attorney’s fees is given to the winning plaintiff, it is given because you have been compelled to litigate. And if it is given to the winning defendant, it is almost always given because??

o Cabs answered, when the defendant acted in gross and evident bad faith (?)o Atty. said: In filing the case? In which case, the defendant there is the plaintiff, in the sense that he

is the recipient of the counterclaim.o But the Judge awarding attorney’s fees must have to find the justification in Article 2208. But has

to entwine that with some factual basis. He must, for example say that there had to be findings that demands have been made but the defendant did not comply, forcing the plaintiff to litigate. So there is an award of attorney’s fees.

- Therefore, there has to be confluence of both factual basis as well as the legal provision of law, in the body of the decision. If it’s in the body of the decision, it must as well be in the dispositive portion, because you already know this in Civil Procedure that it is the only portion of the decision that you can enforce. No matter how nicely stated in the body, but it is not in the dispositive portion, you still cannot execute it.

- But even if it is in the dispositive portion, if it doesn’t find justification in the text of the decision, then it can still be assigned as an error on appeal. That’s why to properly recover attorney’s fees as an item of damages, it must be in the text, both the factual and the legal basis, and then it must also be decreed in the dispositive portion.

- Let us go to the topic I am most afraid to discuss with you.

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- If you look at the case of Eastern Shipping Lines vs. CA, still a very good law on the matter. There are 3 scenarios being depicted:

- 1 st scenario: when the obligation consists in payment of sum of money. That is, it’s a loan or forbearance of money. What I will give as a scenario is loan, because Eastern Shipping depicts that as the first scenario, loan.

I. LoanPrincipal Amount 100,000 100,000Due debt September 30, 2010Interest 2% = [24% per annum] 24,000

Extrajudicial demandJudicial demand December 2010

2020 - - - with finality

Principal + I + I₂ How much?

o The principal amount is 100,000, and it is due on September 30, 2010. If after the due date or September 30, the debtor does not pay, can the creditor claim interest?

Atleast, one thing that is clear to us in Credit Transaction is that there are 2 kinds of interest: 1. interest for the use of money2. interest as component for damages

Interest for the use of money can be claimed only if there is a stipulation in writing. So if you have to be really bad about it, you can just promise him to pay interest, and make sure it is not in writing. But if that happens to you, make sure it is in writing. Because the interest that is known as monetary interest (meaning interest that you pay for the use of money) you can only claim this when there is a stipulation, or stated in writing.

You should know the interest you pay for the use of your money. 12%? 20%? Credit card is 3% per month or 3.5%. It is reasonable. Or 24% per annum. It was asked in 1999 bar exam, I took it September. Decided by the Court in October, see how unfair? What if the interest stipulated upon is 4% per month? Is it unconscionable? You have decisions wherein SC would say that it is unconscionable if 4% or 5%, except… there is a decision that states if you are a seasoned businessman, Courts cannot always rush in to protect a person from a bad bargain. So it depends. If you are for the plaintiff you can use this case. If you are for the defendant, use another case.

Let’s just say 24%. We are sure it won’t be struck down as unconscionable. If by September 30 it is due, how much do you get? What is 24% of 100?

So you can claim 100,000 and the 24,000. Do you impose interest on the interest?

Aranas said NO! So when do you impose interest on interest?

From extrajudicial demand, you cannot claim interest yet because the law says, interest due shall earned interest from the time it is judicially demanded, which means from the time you file a case in Court.

If you made an extrajudicial demand, you cannot impose interest of this one as yet. But if you made a judicial demand, you can already impose interest on the interest. This is the interest that is NOT for the use of money, but already for as a component of actual damages. That is the interest we are talking about when we say among the components of actual damages are attorney’s fees and the interest.

You filed a case in December 2010. It was decided 2020, with finality. What can be the claim?

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The principal, the interest agreed upon and the interest as component or item of damages, but how much? From the time it is judicially demanded you already imposed interest on the interest. It does not say from the time it is judicially fixed. So from the time you file a case you can already claim interest on the interest.

But when the judgment becomes final, how much can we get this time as a component or item of actual damages? This is what Eastern Shipping case has been saying. That you claim 12%. And the 12% there, because it is a loan or forbearance of money.

- Try to contrast that with the 2 nd scenario : When it is still 100,000 but it is not anymore loan. Can that happen? Can there be a claim that is not based

on loan? It says, when the obligation is “not constituting loan”. For example, for the contract that you have agreed, “breach or non-compliance with this agreement will entitle the other party liquidated damages of 100,000”. At the outset, you have fixed the amount of damages to be 100,000. That is an obligation, but is that arising from loan or forbearance of money?

NO, it is in the form of liquidating fixed damages.

Illustration (when obligation is NOT constituting a loan):

Extrajudicial demand September 2010 Principal +Interest [See Article 1169]

Judicial demand December 2010 P + I + I₂

So 100,000. Let’s say you made the extrajudicial demand. You said, you have breached the agreement, pay me the liquidated damages stipulated in the contract in the amount of 100,000. You made that extrajudicial demand on September 2010. Can you get the principal, meaning the liquidating damages of 100,000?

Why not? So when will you ask for that if your answer is no?! That is the reason why you demand because you can already claim!! But can you claim interest on the principal?

YES. This is not interest for the use of money because that is not agreed upon in writing. This

is interest as item of damages, and you can claim it from the time you made an extrajudicial demand on the basis of Article 1169.

Then you made the judicial demand or filed a case in December 2010. You can get the claimed amount of 100,000. And then sure you made demand on the interest. Can you impose interest in this interest?

YES, because there has been already a judicial demand. For how much? This is not anymore the 12% in the first scenario of Eastern Shipping. The answer is 6% because it is not loan or forbearance of money.

- 3 RD scenario is: When the demand of damages is not yet liquidated. This can happen when: wrongly accused of a crime, besmirched reputation. And so you are saying,

indemnify him of the amount of 1 million, ngeh ka gamay. The thing is if you ask for so much and you cannot pay filing fees…hehehe. You just put in your demand letter not less than 1 million so that you can give leeway for the court to award more. In the demand letter, you start with 10 million, but when you sue lower it because its very costly. 16,000 as of now, by the time you file a case as a lawyer, I think it is costly if more than the amount of the filing fee. If you claim 10 million, 16,000 per million = 160,000. Uyy, hello?? For moral damages???

Let’s say you claim for 1 million. The thing is it could be less or it could be more depending on what the court will award. In the nature of unliquidated damages, it is not yet fixed, it is mere demand.

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Let’s say as of now, September 30, you sent that demand letter and said “You know, you ruined my reputation!!! So pay this sum of not less than 1 million in moral damages.” Can you already claim interest on an unliquidated damages?

NO. How about when you file the case?

This is what the SC said:

“No interest, however, shall be adjudged on unliquidated claims or damages until the demand can be established with reasonable certainty.”

When is reasonable certainty? Be careful. Because if at the level of the trial court, the Court says “We sympathize those...” By December 2015, Court says: “Indeed, award the sum of 100,000. Do you already impose at this point impose interest? Or what if this went all the way to the Supreme Court by December 2020. Where do you impose at this point the 6% interest?

*TRIAL COURT. See illustration below. Because at this point, it has already been determined with reasonable certainty. Then

he is not contented, 100,000 is too much. He spends so much just to go to Supreme Court.

You impose the 12% here *Supreme Court. See illustration below. You impose the 12% until paid, because in Credit Transaction and in Easter Shipping Case, at that time it has become a loan until it has been paid by the judgment-debtor.

Illustration (unliquidated damages):

Extrajudicial demand:

*Trial Court December 2015 100,000 6%

*Supreme Court December 2020 100,000 + 6% from T/C 12% until paid

Mitigation and assessment of actual damages- There are facts you can argue to mitigate damages. You can use this against the “iguana” bar question. You can

mitigate the damages by saying that the party suffering the loss must exercise the diligence of a good father of a family to minimize the damages. The better way to ask this in the bar is…

This is known as the Doctrine of Avoidable Consequences (Article 2203 NCC) After you have been injured, you must do something to minimize the damages. The law says, the one suffering the loss must exercise the diligence of a GFF (good father of a

family) in order to minimize the loss. In my exam, I would have wanted to ask how then would you differentiate this doctrine from the

Doctrine of Contributory Negligence.

- How do you minimize as well, in cases of quasi-delict? You reduce that by showing contributory negligence.

- How does that differ from the doctrine of avoidable consequences? You have to be familiar with other names for the terms. like in remedial law, it was asked, what is this res adjudicata in prison grey? The complete term is res adjudicata dressd in prison grey. You have learned that in Consti 2, that is double jeopardy!!

- Article 2215 NCC: These are ways of mitigating damages. Look at this because in the finals we will adopt the legal memo.

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Subrogatory right of insurer (Article 2207 NCC)- This one is important in the sense that, for example you file a case against the insurer in the breach of contract of

carriage involving damages. You file a case against the operator and include the driver but it is a waste of time and money. You include the insurance company, who will do everything not pay.

Court says: “Wherefore, judgment is in favor of plaintiff(You) and against the defendants to jointly and solidarily, (which means what?) to pay plaintiff the sum of 1 million in actual damages, and 500,000 in moral damages, and 500,000 in exemplary damages.

In a contract of carriage, the required insurance there is 50,000 for TPL or third-party liability. This operator of the bus company gets 50,000 insurance coverage for you. The contract between the

company and the insurance is 50,000. Since you impleaded the insurance company, and the Court says pay the plaintiff solidarily the sum of 2 million. Will you go the driver?

NO, unless you want to really exert some effort. You may go to the operator, maybe you will. Or maybe you want to go to the insurance company

because they have a lot of money. So you go to the insurance company, and it is a solidary obligation. How much? For 2 million?

Careful. That kind of decision as held by SC is inferred. You can only hold the insurance company liable upto the extent of the insurance coverage. So if you see that in the decision of the trial court, don’t be too happy. You can very certain that the insurance company will appeal and that is one of the issues that is most certain to be reversed on appeal.

If you are asked to render legal opinion, in law, but you really can hold insurance liable or that stated in the insurance contract.

Then, insurer has the right to go after you if and when he has paid.

General Requirement- In all of these, if it is actual damages, what is the requirement for recovery?

Pleading and proof. What kind? You have to state that in your complaint. Keeping in mind what you have learned

about general special damages and the prayer that you need to pray. Having pleaded that, remember that you can only prove that which you have pleaded. If you haven’t

pleaded that, that cannot be proved, unless you went on proving sans objection (??) from the other party, you learned in Civil Procedure that they can receive evidence that have been adduced even if not pleaded, can received because that is to conform to evidence. [Amendments to conform to evidence]

But as a rule, if it is objected to, then you cannot go about presenting proof. If you have pleaded that, what is the kind of proof you need to present?

Because this is actual damages, you need to present proof that will show to 2 things:1. pecuniary loss2. exactitude.

That is why, if you claim that you have an unearned income of 1 million, be sure to substantiate that. Otherwise, if that is a claim for actual damages that is not proven with exactitude, then it may not be awarded.

Court can go on to award you some other forms of damages that you know of next meeting…

- If you are dealing with crime, and this one speaks of hospitalization expenses. What kind of proof you need to present?

Best obtainable evidence is the requirement for actual damages.


MORAL DAMAGES

- What is the reason or purpose for the grant of actual damages? It is indemnification, yes, but the way it was described by law is that it is meant to be an adequate

indemnity or adequate compensation.- When we look at Article 2217 which deals with moral damages, however, this is what you find:

Art. 2217. Moral damages include physical suffering, mental anguish, fright, serious anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and similar injury. Though incapable of

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pecuniary computation, moral damages may be recovered if they are the proximate result of the defendant's wrongful act for omission.

It would encompass those involving physical suffering, mental anguish, serious fright, besmirched reputation, wounded feelings.

But if you look at the kind of loss or damage that is meant to be compensated by moral damages, what can you observe? If actual damages covers pecuniary loss, this one involves….. feelings.

- Distinguish moral damages from actual damages: As distinguished by that of actual damages, the law and the cases in Article 2216 and the subsequent cases

that you do not need proof of pecuniary loss because it does not cover monetary loss, but losses that don’t involve money, instead it involves feelings.

o Art. 2216. No proof of pecuniary loss is necessary in order that moral, nominal, temperate, liquidated or exemplary damages, may be adjudicated. The assessment of such damages, except liquidated ones, is left to the discretion of the court, according to the circumstances of each case.

First, the kind of proof that you need, whereas in actual damages because it is meant to be an accurate compensation for monetary loss you have to prove your monetary losses with exactitude. By the very nature of damage meant to be addressed by moral damages, you cannot present proof of pecuniary loss for that, which is why Article 2216 says no pecuniary loss is necessary in order to cover moral damages. While proof is needed it is not the same of proof needed when you want to prove actual damages because the quantum of evidence that you need as held in the case of Simex International vs. CA is that you do not have to establish it with exactitude as in the case of actual damages because of the nature of moral damages as being NOT susceptible of exact pecuniary on determination.

I need to emphasize on this: adequate compensation for pecuniary loss. Second, as to the purpose of the grant of damages.

o Case of Makabali vs. CA – Petitioner suffered sleepless nights and public humiliation for 3 days and 3 nights in HongKong, for failure of private respondent in the performance of their obligation. You can just imagine the anxiety that you are faced with when you are placed for the first time in a foreign country without a benefit of the support that you expected. SC said moral damages is not given as a penalty to the wrongdoer, but as a means to alleviate the moral suffering. The way it was stated is: If actual damages is meant to restore you to your status quo ante, on the other hand, moral damages is meant to approximate your spiritual status quo ante.

- When do we award moral damages? You give it to instances enumerated in Article 2219 plus analogous cases. Later on, when we discuss on libel

in cases of corporation, the last ruling of the court is to award libel falling under analogous cases. That may not be so accurate, because the law states that all in the enumeration of Article 2219 plus cases analogous to these. If you go down, you will find libel as among those enumerated. This is not an analogous cause. So let’s look at the instances when moral damages may be awarded.

Art. 2219. Moral damages may be recovered in the following and analogous cases:(1) A criminal offense resulting in physical injuries; (2) Quasi-delicts causing physical injuries; (3) Seduction, abduction, rape, or other lascivious acts; (4) Adultery or concubinage; (5) Illegal or arbitrary detention or arrest; (6) Illegal search; (7) Libel, slander or any other form of defamation; (8) Malicious prosecution; (9) Acts mentioned in Article 309; (10) Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30, 32, 34, and 35.

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The parents of the female seduced, abducted, raped, or abused, referred to in No. 3 of this article, may also recover moral damages.The spouse, descendants, ascendants, and brothers and sisters may bring the action mentioned in No. 9 of this article, in the order named.

o If it’s a crime resulting in physical injuries, Court can award moral damages.o Also in quasi-delict also resulting in physical injuries, as well as SARA - ( Seduction, abduction, rape, or

other lascivious acts). In adultery or concubinage or illegal arbitration, the reason why you need to understand this is because when confronted with instances not falling under any of the enumeration, then you can considered them are they analogous to those enumerated. That’s why you have to be familiar with the listing.

o Here you see illegal arbitration. Later on when you read the cases decided by the SC, SC considered kidnapping to fall as an analogous cause.

o Libel, slander, or any other kind of defamation Internet libel – we have to discuss this because it was asked in the bar exam. The answer to

that question is that case decided by the bar chair in May of 2010. Few months before the bar, she crafted that decision of Bonifacio v. RTC, she said whether there can be libel when the defamatory utterances were published in the internet.

Libel- Art. 353. Definition of libel. — A libel is public and malicious imputation of a crime, or of a vice or defect, real or

imaginary, or any act, omission, condition, status, or circumstance tending to cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the memory of one who is dead.

- Libel being defined as public, and malicious. As to public, we have the case of MVRS vs. Islamic Da’Wah

o Regarding pigs; where libel can only be committed if the defamatory imputation is communicated to a third person. No matter how defamatory it was uttered straight to the person who was made subject to the statement, it cannot be libel. It has to be a third person, because in this case, it is meant to address relational interest. That is why it has to be communicated to a third person, and that is meant by “public”, it need not be so many for as long as it is someone else other than the subject of the defamatory statement. It has to be communicated because libel is meant to address the damage on your reputation, that is what is covered by relational interest.

o Thus there are 2 things being emphasized in this case:1. relational interest2. reputation – not the high regard of what you have of yourself, but the high regard of others on you. That is why it has to be communicated to.

As to malicious imputation – the imputation has to be malicious. There has been jurisprudential development beginning with 1999 in the case of Borjal.

o For every defamatory information we utter, malice is presumed. This is what you call “malice in law”. (Article 354) As long as it is defamatory, there is automatically malice attached to it.

o Art. 354. Requirement for publicity. — Every defamatory imputation is presumed to be malicious, even if it be true, if no good intention and justifiable motive for making it is shown, except in the following cases: 1. A private communication made by any person to another in the performance of any legal, moral or social duty; and 2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.

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o Exception: If it falls under any of these two.1. A private communication made by any person to another in the performance of any legal, moral or social duty - example: you hate your teacher so much. You said that she is the worst teacher of all. We learn nothing from her. You send that to Dean Alex who has supervisory authority over teachers. That is defamatory imputation because you are accusing your teacher that she has not imparted anything to you. But because it is in the performance of moral, if not legal duty, then that defamatory imputation cannot carry with it “malice in law”.- But if you sent it to Lex Circle, who does not have authority over teachers, this one cannot because it is not in the performance of legal, social, moral duty. Thus, it has to be someone who can act on the complaint.

2. A fair and true report, made in good faith, without any comments or remarks, of any judicial, legislative or other official proceedings which are not of confidential nature, or of any statement, report or speech delivered in said proceedings, or of any other act performed by public officers in the exercise of their functions.

o The comments made by broadcasters or media, do not fall under any of the two. The privilege communications embodied in article 354, it doesn’t. Because it is not a fair and true report devoid of any comment. It is wicked with comment. If so, can we then presume malice for every utterance made by commentators and media personalities? This is what SC said in the case of Borjal: Article 354 is not exclusive. You can add to this,

what is known as the doctrine of fair comment. This doctrine states that for as long as the comment is made based on matters of public interest. Remember that you can make a comment, unless in the case of paragraph 2 of article 354. It says devoid without any comment. Here, you can make a comment on matters of public interest for as long as the comment is based on established fact, even if the comment be later on found to be mistaken or false, then there cannot be a presumption of malice in your utterance.

(chika time) because you are always thinking along the line of before. You make a comment, and that is a matter of public interest, because public comment could come in 3 forms:

1. public official2. public figure – which doesn’t require you to be an official3. public funds

In which case, if you make a comment on that it is a matter of public interest. And for as long as your comment is based on some established fact, for example some audited report that says that this much is spent when only this much is necessary. Or this is the prevailing price somewhere but this was how much the government has paid these sacks of cement. Therefore, based on some established fact then you make a comment, for example you say that the person is the queen of graft and corruption. This is a comment, not a fact. Even if later on that will be mistaken, the other line of defense is you know that you cannot be onion-skinned if you are a public official. But that’s a different story.

If you want to go by doctrine of fair comment, there are 3 things you need to establish:1. public interest – even if later on found to be mistaken, is somehow based on some established fact.2. established fact3. no reckless disregard for truth

The third requirement of the doctrine of fair comment is found in the case of Tulfo v. People. This is a very nice case. Tulfo was so brave in saying that these

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people in BIR are so corrupt. But we say that all the time. He identified the person, and said he is the most corrupt in a certain part of the bureau. And so, when atty. Carlos So came forward, the first line of defense is that “I am not referring to you.” Which is quite difficult to believe. When this matter went to SC he was forced to rely on the doctrine of fair comment. But SC said, it is only when there is no reckless disregard for truth (3rd requirement). Before you made that comment, which later on found to be false, you first exerted reasonable efforts at investigation.

If it is under any of the three, then malice is NOT presumed. But does that mean that you will be acquitted?

That is when the prosecution has to establish “malice in fact”. That does not mean that you will be automatically acquitted. It only means that the burden of proof is now shifted on the State to prove malice, because malice is no longer presumed. They have to prove that you did not do that out of sheer moral duty. That you did not have ill-will when you made the utterance. In which case, you can also be convicted for malice.

In so far as libel is considered, Tulfo is the important jurisdprudence.

Internet Libel (there’s no libel in the internet)- Just like Vicky Belo versus Guevarra. That lawyer who wrote nasty things in facebook against Belo because he was the

counsel for the girl whose ass was deformed by Belo. - Would there be libel if the defamatory statements where allegedly made through the medium of the internet?

In the case of Bonifacio vs. RTC; GR No 184800, May 5, 2010

o This concerns the plan holders of Great Pacific Life or GREPALIFE. They were so mad at this Yuchengco (don’t know the spelling). They made this website PEPSI (don’t know the exact basta sounds like that). They made that site, and said “look what happened to the negotiation. They just tricked us into going through negotiation so that no criminal cases will be filed against them. Mga mangigilad!! In tagalog. And so we should march now and file a case!!!” And so Yuchengco filed a case against them.

o In the information, it was alleged that this article which came out in the internet, accessible to anyone anywhere in the world, was published and accessed first by the complainant in Makati. That is why it is filed in Makati. Remember the requirement of venue which is jurisdictional in case of libel. “In the place where it was first published”. And why is that the requirement of the law by way of amendment? Because before the amendment, the way to harass a person or the media men is to file the libel case in a very remote far-flung area. You can just allege you read it there so you can file the case there and you can bring that person there like what happened to Leo Lastimosa. To cure that, the law says that it has to be filed where it was first published, because it is quite definite and easy to trace. You just look at the address of the publication, and that is where it was first published.

o She rules out libel through internet publication, when she said… If the purpose is to prevent indiscriminate or arbitrary filing or laying of the venue, then that was solved by requiring that it be filed in the place where the article was first published because it is easy.

o The part Atty. Highlighted from the case:“Clearly, the evil sought to be prevented by the amendment to Article 360 was the indiscriminate or arbitrary laying of the venue in libel cases in distant, isolated or far-flung areas, meant to accomplish nothing more than harass or intimidate an accused. The disparity or unevenness of the situation becomes even more acute where the offended party is a person of sufficient means or possesses influence, and is motivated by spite or the need for revenge.

If the circumstances as to where the libel was printed and first published are used by the offended party as basis for the venue in the criminal action, the Information must allege with particularity where the defamatory article was printed and first published, as evidenced or supported by, for instance, the address of their editorial or business offices in the case of newspapers, magazines or serial publications. This pre-condition becomes necessary in order to forestall any inclination to harass.

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The same measure cannot be reasonably expected when it pertains to defamatory material appearing on a website the internet as there would be no way of determining the situs of its printing and first publication. To credit Gimenez’s premise of equating his first access to the defamatory article on petitioners’ website in Makati with “printing and first publication” would spawn the very ills that the amendment to Article 360 of the RPC sought to discourage and prevent. It hardly requires much imagination to see the chaos that would ensue in situations where the website’s author or writer, a blogger or anyone who posts messages therein could be sued for libel anywhere in the Philippines that the private complainant may have allegedly accessed the offending website.”

o The RTC of Makati branch 149 is directed to quash the information and dismiss the case. Or maybe she is just a plan holder..hehe The reason why she said that is because of the very evil sought to be prevented by the amendment will happen if you allow internet libel by just testing where it was first accessed. Oh! So very nice, we can.... because there is no libel! But maybe damages if libel is unavailing.

Malicious prosecution- This is the other ground for moral damages. Every now and then you will find this, in Criminal law, Civil law.- When is there malicious prosecution?

To maintain an action for damages based on malicious prosecution, three elements must be present:1. The fact of the prosecution and the further fact that the defendant was himself the prosecutor, and that the action was finally terminated with an acquittal.2. In bringing the action, the prosecution acted without probable cause.3. The prosecutor was actuated or impelled by legal malice.

- Who do you usually hold liable in a case of malicious prosecution? - Is it the fiscal? The thing is, you can set this as a defense. You can say that the fiscal found probable cause and filed

this case, except that later on during trial Court ruled this case ..(words of Atty not clear here). You cannot be accused of malicious prosecution because in the first place, prosecutor found probable cause. So when will there be malicious prosecution? In civil case, it can happen when he files a sham complaint then there is malicious prosecution.

- But can there be a case of malicious prosecution if what was commenced against you is a sham civil complaint?- When we say malicious prosecution, does that cover only cases filed against you criminal in character?

Espiritu answers, it is both civil and criminal. Atty said, how about administrative? In fact, this was so extensive to even include if you ever file a

disbarment complaint against a lawyer who is found to be without basis. Careful, because they might file a case against you for malicious prosecution. It can even include administrative cases for as long as judicial proceedings in character. For as long as the elements are present, the elements that you find in the case of Lao vs. CA. The very nice thing about you testifying against a person and later on the case was dismissed is that as early as in this case, witness cannot be said to be involved in malicious prosecution.

Violation of Article 21 - Specifically on breach of promise to marry.- Can there be moral damages in a breach of promise to marry? If you do not fulfil your promise to marry a person?

Class says as a general rule no. Atty. said except when….? The thing is it is not in the nature of moral damages. It is in the nature of actual damages for the actual

expenses incurred. Because the law cannot penalize someone for not fulfilling the promise to marry. What is only allowed by the law is when you have incurred actual expenses that you can be awarded of actual damages.

Atty highlighted this in the case of Hermosisima vs. CA:

“The elimination of this Chapter is proposed. That breach of promise to marry is not actionable has been definitely decide in the case of De Jesus vs. Syquia, 58 Phil., 866. The history of breach of promise suit in the United States and in England has shown that no other action lends itself more readily to abuse by designing women and unscrupulous men. It is this experience which has led to the abolition of the rights of action in the so-called Balm suit in many of the American States.”

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- It is different if moral seduction comes in because then you will be granted of moral damages not because of breach of promise to marry, but because of the moral seduction that came into the picture.

October 6, 2010 – LAST MEETING!!! ; //stevesantillan

So we try to finish this in 30 mins. This would be our last meeting.

Cases or instances when moral damages may be awarded.

We made mention of award of damage in breach of contract cases. Remember that mere breach does not automatically result in bad faith right? Because there could be breach in good faith and there could also be breach in bad faith. The award of moral damages is proper only if there breach in bad faith. Here the Supreme Court emphasized this in breach of contract of carriage cases where moral damages is awarded when the defendant acted in bad faith.

But what if there is no bad faith? The other case under the law where you award moral damages is in the case of 1764, where it says – if in the breach in the contract of carriage death results, then there can also be moral damages even if there is no bad faith. Example when bus is colliding with another bus and the passenger of that bus died so you have breach of contract of carriage there right? Here you don’t have to find bad faith to be awarded damages since somebody died, but if nobody died there has to be bad faith in order to award moral damages. Bad faith connotes intent or some instance of malice. In one case the Supreme Court said -however if the negligence is so gross that it can amount to bad faith then for as long as there is finding of bad faith there could be award of moral damages.

So 3 things then:

1. Is when there is bad faith

2. Even if there is no bad faith but there is gross negligence which amount to bad faith and

3. In breach of contacts when someone dies.

Then it can be ask in the bar maybe if not in Mercantile Law, in Civil Law- what is the rule on the award of damages in favor of corporations? Or do you award moral damages in favor of corporations? The case of Mambulao Lumber vs. PNB is the first case on that one, where it says- you do award moral damages because the corporation has a reputations. Do you agree? Remember when we were looking at the award of moral damages there is wounded feelings , besmirch reputation etc. Then come the case of ABS CBN Broadcasting Corp. when the Supreme Court said the case of Mambulao is just an obiter dictum-you cant award moral damages to a corporation because a corporation has no feelings, no veins. So what about reputation?????...It reiterated that in Napocor case, where it is said that there being no feeling, no nervous system then there is no moral damages. But then again the nagging thought, what about the issue on reputation? Pero atleast ha ayaw lang jud mo coz you might get this wrong in the bar. Just in the bar. If you become a lawyer that would be a good thesis in masteral of law. But in the case of Napocor, SC said no nervous system.

Then came your Filipinas broadcasting case, what do you think this case is about? What brought about the libel case? File by the school because apparently there were students who flunk in certain subject…more than 50% failed. So why is it suddenly the fault of the school? They said this was done purposely so they can offer this as another class and thus make money. How cruel noh? Which is to say- that they file a libel case because this was done in the radio. Again if the purpose is to correct the mistake is to enforce it to certain channels..unsai labot sa Bombo radio in this case or Phil. Broadcasting network. In this case there is really humiliation. So there is libel in there and then will you grant moral damages? If you look at the grounds to moral damages libel will be one of them, and since you can commit libel to natural and juridical persons then you can grant moral damages in favor of the corporation, if the case is libel. Then the latest case of Republic vs. Tuvera seems to affirm that decision and falls under an analogous circumstance. What would be an analogous case when it is specifically listed there? Probably this is just a typographical error by the Supreme Court noh? So it is now that you grant moral damages to corporation if the cause of action is founded on libel. Because after all libel is one of the instances when moral damages can be awarded. That is the latest rule. I’m sure you don’t have any questions.

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Now we look at the other forms of damages.

Actual damages

You grant actual damages for what?-adequate compensation of monetary loss. You grant moral damages for what? Wounded feelings, but not all feelings will warrant moral damages, like right now you got this sleepless nights.

Then what about nominal damages? You look at the nature of Nominal damages stated in the law. You will find that you will grant it as a form of vindication. Probably why you call it nominal damages. In order to recognize the right, to give the name to it. So to recognize or vindicate a right you grant moral damages. The purpose there is not to indemnify the plaintiff for the loss but it is granted to honor the existence of a right. I’m sure this is very much familiar to you. You dismiss a person for a just cause but without compliance with the due process. Example this person rape your child. Ahh. Dili lang ta ana. Attempt against the life of the employer. just cause na dba? But what if there is no sort of investigation you dismissed the person immediately because you are pretty sure and convinced that he really wanted or attempted to kill you? Therefore you said—I don’t want to see yo face eva again!!!. So the Supreme Court said that you cannot just do that. So what they do is grant you nominal damages to recognize that you’ve got procedural due process right that has been violated. They grant you nominal damages to vindicate or recognize a right. You know of course that nominal damages would vary if there is just cause but there is no compliance of due process, there is 30 thousand but if authorized cause and non compliance of due process, 50 thousand. Why the difference? Who caused it anyway. Nominal damages is there to recognize that the violation of your procedural due process. So you see at once that nominal damages is what you give not to indemnify for the loss but to vindicate or recognize a right.. The thing is, don’t be jumping immediately because the grant of nominal damages is suppose to preclude other protest concerning other further damages. That’s about it for you. Because the adjudication of nominal damages shall preclude further contest upon the right involve, and all accessory questions. So you grant that but the requirement of course as held by the Supreme Court is that it must be shown that there is some right violated. So in that case it is not enough that you show that there is loss because nominal damages is not awarded to indemnify loss. Nominal damages you must be able to point out some right that has been violated. As held in this case of Go vs IAC. Sc just restated what is the law- that you give it in order to vindicate or recognize a right and not for the purpose of indemnifying for a loss.

What about Temperate?

Just to give you an idea. Supreme Court said that temperate is more than nominal but less than actual. So that is how that is described that will somehow give you an idea when can temperate damages maybe ordered. Because its more than nominal surely the purpose is indemnification because in nominal the purpose is not to indemnify you from the loss but simply to recognize or vindicate a right. Surely now the purpose is indemnification. Because its less than actual, its not adequate in the since that it gives you back what you have exactly lost, all that you have lost monetarily. So when do you get award for temperate damages? You award it when there has been loss but it has not been proven? I can ask this in the multiple choice, it would be a good multiple choice question:

When do you award temperate damages?

a. When loss has not been proven

b. when the moral loss has not been established

c. when the monetary loss cannot be proven or

d. blabla.. so on and so forth.

It cannot be a. because you will be awarding the person without proving any loss. It has to be c. because it cannot be by its nature be proven by evidence. What a poor choices I gave you. Hehe. Then you just got to award temperate damages because there is monetary loss but it cannot by its nature be proven by any evidence. Can you site an example? Funeral? You know in funeral you can baya prove, because you can ask for receipts. The one that has been concededly as incapable of proof with exactitude is damage upon business standing. You dishonored the check of the person as a result people thought you are

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financially strapped, but in truth dili d i..to a little lang. it gives you damage or injury in your business standing. It cannot be proved with exactitude as a requirement. This is lesser than actual damage. That is when you award temperate damages. So you acknowledge there is loss but you cannot prove it with certainty. But how come for unproven funeral expenses the Supreme Court said there is an award of temperate damages because in this case it’s a matter of equity. Nindot jud ni ang ma Supreme Court class da kai if pressed they will tell you its just a question of equity. This is your case for example where injury to corporation is difficult to show with certainty in terms of money. So what about funeral expenses, why is it granted? Because again the Supreme Court said it’s just a question of equity. So unta funeral expenses is not a question even if its not proven that is the reason why the Supreme Court granted it , based on equity. You grant temperate in lieu of actual because it’s less than actual but more than nominal. So if asked the question of –can it co-exist? -all of us would say no, and all will be correct. Except that there is a peculiar, unique and strange case of Ramos vs. ca ba to class , the one reported by doc? Umm. The rule is temperate should not co exist with temperate.

But here the Supreme Court acknowledges that all the rules of actual and compensatory damages that it cannot co-exist with temperate damages. Sc in this particular instance granted actual damages for expenses actually proven and because she was paralyzed before she expired a case was filed. The Supreme Court acknowledge that even before they decided it with finality, that you will be able to incur expenses from this life long confinement from the wheel chair. So the Supreme Court because the injury was chronic and continuing, even if as a rule it cannot co-exist, granted temperate damages.

Liquidated damages is that which is already agreed upon by the parties. so in case of breach you already agreed of how much will be the indemnity. But the court may reduce it if it finds it excessive.

Exemplary is what you always file in your pleadings or compliant. What is its nature? Its not a matter of right . 2234 says its up to the court to give it to you. The court will decide whether or not it will be adjudicated. The purpose is what? If the purpose of moral damages is to restore you from the status quo ante as a form of amusement or diversion, exemplary is a form of correction for public good. Sc – even those be awarded as a form of punishment by the party. Pero dba moral damages is not a form of punishment. But exemplary damages is awarded when it is for correction of public good. But look, and this is the most important, you grant it in addition. That’s why the Supreme Court cannot say- wherefore judgment is rendered in favor of plaintiff and the defendant is directed to pay exemplary damages of one hundred thousand, period. First the court must award some other kind of damages before you can award exemplary damages. It’s because law says you grant it in addition to. Like we said nominal cannot co exist with temperate in this case there must be other damages that must co-exist with temperate. 2234 says you must show first entitlement of temperate or compensatory which is why in crimes exemplary damages is awarded with one or more aggravating circumstances .

In Quasi-delict you grant exemplary in case where there is gross negligence. In breach of contracts or quasi-contracts-when there is wanton, fraudulent manner. Why are we bringing this up? Because dba you get what you prayed for, in a legal sense ha dili moral or logical sense or something. hehe But the court will only award you when you prayed for it in your complaint. This is what you get when you prayed for it. You only get it when you prayed for it, because it’s granted for correction of common good. Thus, if prayed for in case of quasi-contract, you have to prove that the defendant acted with or there is wanton, fraudulent, reckless oppressive manner. Because this is your entitlement to exemplary damages. For it is in the case of quasi-delict and you are asking the court to award you exemplary damages you have to able to site that the defendant acted with gross negligence.

In the end we have to discuss this just the same. Damages may be mitigated or aggravated depending on whether…dali kaau siya ma sign out noh?....certain circumstances are present. For example in crimes when there are aggravating circumstances then it can be aggravated, with mitigating circumstances it can lessen the award of damages. If it’s a case for example of quasi-delict damages may be..(brownout)..ako nalang tiwas ani..if there is contributory negligence- same thing will happen, it will mitigate.

I was just about to display on the board, nindot unta ni pang facebook but dili paman ni siya mo balik 2 hours pa man dba? Brownout. Sayang.

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“the award of damages should be in the in, lies in the discretion of the court but the court is called upon to act, in the grant of damages, with balance restraint and measure objectivity”

This is the last point. You remember the discussion on Judgment on the pleadings..which will happen if the other party raises no….what?...no..issue.. but there is a qualifying word there. Justiciable? No. dha mana sa political law.hehe raises no genuine issue. Now, if when it happen you ask the court to obtain judgment on the pleadings.Be very careful because happy kaau ka you shorten the time but the court says – if you claim judgment on the pleadings you just forego damages. Do you think? Because claim for damages must have to be proven. So be careful with agreeing to decide the case on the pleadings. Authority there is in the case assigned. That’s it for us. Lets see each other on Monday. For multiple choice from the beginning to end. So there would really be truth to the claim the 3rd year students are the most coerced students in the college of law. Live up to the reputation.

These are the following parts Atty. highlighted during the last meeting:

Herbosa vs. CAOrdinarily, moral damages cannot be recovered in an action for breach of contract because such an action is not

among those expressly mentioned in Article 2219 of the New Civil Code. However, moral damages are recoverable for breach of contract where the breach was wanton, reckless, malicious or in bad faith, oppressive or abusive. The wanton and reckless failure and neglect to timely check and remedy the video tape recorder by the PVE crew who are all employees of respondent Solid Distributors, Inc. indicates a malicious breach of contract and gross negligence on the part of said respondent in the discharge of its contractual obligations. Consequently, the petitioners who suffered mental anguish and tortured feelings thereby, are entitled to an award of One Hundred Thousand Pesos (P100,000.00) as moral damages.

In the case of Go v. Court of Appeals we emphasized that “(i)n our society, the importance of a wedding ceremony cannot be underestimated as it is the matrix of the family and, therefore, an occasion worth reliving in the succeeding years.” Further, we reiterate the following pronouncements therein where we also awarded moral damages on account of a malicious breach of contract similar to the case at bar, to wit:

Considering the sentimental value of the tapes and the fact that the event therein recorded—a wedding which in our culture is a significant milestone to be cherished and remembered—could no longer be reenacted and was lost forever, the trial court was correct in awarding the appellees moral damages albeit in the amount of P75,000.00 xxx in compensation for the mental anguish, tortured feelings, sleepless nights and humiliation that the appellees suffered and which under the circumstances could be awarded as allowed under Articles 2271 and 2218 of the Civil Code.

Ventenilla vs. CentinoNevertheless, considering that nominal damages are not for indemnification of loss suffered but for the vindication or

recognition of a right violated or invaded; and that even if the appeal in civil case No. 18833 had been duly perfected, it was not an assurance that the appellant would succeed in recovering the amount he had claimed in his complaint, the amount of P2,000 the appellant seeks to recover as nominal damages is excessive. After weighing carefully all the considerations, the amount awarded to the appellant for nominal damages should not be disturbed. Go vs. IAC

While it is true that denouncing a crime is not negligence under which a claim for moral damages is available, still appellants are liable under the law for nominal damages. The fact that appellee did not suffer from any loss is of no moment for nominal damages are adjudicated in order that a right of the plaintiff, which has been violated or invaded by the defendant, maybe vindicated or recognized and not for the purpose of indemnifying the plaintiff for any loss suffered by him (Article 2221, New Civil Code). These are damages recoverable where a legal right is technically violated and must be vindicated against an invasion that has produced no actual present loss of any kind, or where there has been a breach of contract and no substantial injury or actual damages whatsoever have been or can be shown (Elgara vs. Sandijas, 27 Phil. 284). They are not intended for indemnification of loss suffered but for the vindication or recognition of a right violated or invaded (Ventanilla vs. Centeno, L-14333, January 28, 1961). And, where the plaintiff as in the case at bar, the herein appellee has established a cause of action, but was not able to adduce evidence showing actual damages then nominal damages may be recovered (Sia vs. Espenilla CA-G.R. Nos. 45200-45201-R, April 21, 1975). Consequently, since appellee has no right to claim for moral damages, then he may not likewise be entitled to exemplary damages (Estopa vs. Piansay, No. L-14503, September 30, 1960). Considering that he had

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to defend himself in the criminal charges filed against him, and that he was constrained to file the instant case, the attorney's fees to be amended (sic) to plaintiff should be increased to P3,000.00.

Premiere vs. CAIn some States of the American Union, temperate damages are allowed. There are cases where from the nature of the

case, definite proof of pecuniary loss cannot be offered, although the court is convinced that there has been such loss. For instance, injury to ones commercial credit or to the goodwill of a business firm is often hard to show with certainty in terms of money. Should damages be denied for that reason? The judge should be empowered to calculate moderate damages in such cases, rather than that the plaintiff should suffer, without redress from the defendant's wrongful act.

Republic vs. TuveraThe allowance of temperate damages when actual damages were not adequately proven is ultimately a rule drawn

from equity, the principle affording relief to those definitely injured who are unable to prove how definite the injury. There is no impediment to apply this doctrine to the case at bar, which involves one of the most daunting and noble undertakings of our young democracy–the recovery of ill-gotten wealth salted away during the Marcos years. If the doctrine can be justified to answer for the unlawful damage to a cargo truck, it is a compounded wrath if it cannot answer for the unlawful exploitation of our forests, to the injury of the Filipino people. The amount of P1,000,000.00 as temperate damages is proper.

Ramos vs. CAOur rules on actual or compensatory damages generally assume that at the time of litigation, the injury suffered as a

consequence of an act of negligence has been completed and that the cost can be liquidated. However, these provisions neglect to take into account those situations, as in this case, where the resulting injury might be continuing and possible future complications directly arising from the injury, while certain to occur, are difficult to predict.

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In other words, temperate damages can and should be awarded on top of actual or compensatory damages in instances where the injury is chronic and continuing. And because of the unique nature of such cases, no incompatibility arises when both actual and temperate damages are provided for. The reason is that these damages cover two distinct phases.

As it would not be equitable — and certainly not in the best interests of the administration of justice — for the victim in such cases to constantly come before the courts and invoke their aid in seeking adjustments to the compensatory damages previously awarded — temperate damages are appropriate. The amount given as temperate damages, though to a certain extent speculative, should take into account the cost of proper care.

*THANKS TO THOSE WHO HELPED IN MAKING THIS TRANSCRIPTION! GOD BLESS EVERYONE!*

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Torts Transcription for Finals

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