TORTS AND DAMAGES | Dean Joan S.
Largo | For the exclusive use of EH 404
State
The state is responsible if it acts through a special agent,
and these are those people given specific or fixed
assignment, that are consistent with the normal
responsibility of a duly appointed officer.
Meritt vs. Government of the Philippine Islands
Facts:
Merritt was riding on a motorcycle and was going toward the
western part of Calle Padre Faura, passing along the west
side thereof. Upon crossing Taft Avenue, the General
Hospital ambulance, turned suddenly and unexpectedly and
long before reaching the center of the street, into without
having sounded any whistle or horn, by which movement it
struck Merritt. By reason of the resulting collision, the
plaintiff was so severely injured that, it affected its capacity
even to conduct their business.
Let it be noted that Act No. 2457 was enacted which
authorized Merritt to bring suit against the Government of
the Philippine Islands to fix the responsibility for the collision
between his motorcycle and the ambulance of the General
Hospital, and to determine the amount of the damages, if
any, to which Mr. E. Merritt is entitled on account of said
collision, and authorized and directed the attorney-General
of the Philippine Islands to appear at the trial on the behalf
of the Government of said Islands, to defend said
Government at the same.
The trial court found that the accident was caused by the
ambulance’s negligence. Hence, damages were awarded in
favour of plaintiff. The defendant appealed contending that
the trial court erred: (a) in finding that the collision between
the plaintiff's motorcycle and the ambulance of the General
Hospital was due to the negligence of the chauffeur; (b) in
holding that the Government of the Philippine Islands is
liable for the damages sustained by the plaintiff as a result
of the collision, even if it be true that collision was due to
the negligence of the chauffeur; and (c) in rendering
judgment against the defendant for the sum of P14,741.
Issues:
1. As the negligence which caused the collision is
a tort committed by an agent or employee of
the Government, the inquiry at once arises
whether the Government is legally liable for the
damages resulting therefrom.
2. Did the defendant, in enacting the act, simply
waived its immunity from suit or did it also
concede its liability to the plaintiff?
Ruling:
The Insular Government (the defendant) cannot be sued by
an individual without its consent. It is also admitted that the
instant case is one against the Government. It cannot be
argued that the accident was due solely to the negligence of
the chauffeur, who was at the time an employee of the
defendant.
But the question is, does the Act authorize the Court to hold
that the Government is legally liable for that amount? If not,
the Court must look elsewhere for such authority, if it exists.
The Government of the Philippine Islands having been
modeled after the Federal and state Governments in the
United States," the Court looked into the decisions of the
high courts of that country for aid in determining the
purpose and scope of Act No. 2457.
In the United States the rule that the state is not liable for
the torts committed by its officers or agents whom it
employs, except when expressly made so by legislative
enactment, is well settled. The Government does not
undertake to guarantee to any person the fidelity of the
officers or agents whom it employs, since that would involve
it in all its operations in endless embarrassments, difficulties
and losses, which would be subversive of the public interest.
As to the scope of legislative enactments permitting
individuals to sue the state where the cause of action arises
out of either tort or contract, the rule is that by consenting
to be sued a state simply waives its immunity from suit. It
does not thereby concede its liability to plaintiff, or create
any cause of action in his favor, or extend its liability to any
cause not previously recognized. It merely gives a remedy to
enforce a preexisting liability and submits itself to the
jurisdiction of the court, subject to its right to interpose any
lawful defense.
It being quite clear that Act No. 2457 does not operate to
extend the Government's liability to any cause not previously
recognized, the Court examined the substantive law
touching the defendant's liability for the negligent acts of its
officers, agents, and employees.
Paragraph 5 of article 1903 of the civil Code reads:
"The state is liable in this sense when it acts
through a special agent, but not when the
damage should have been caused by the official to
whom properly it pertained to do the act
performed, in which case the provisions of the
preceding article shall be applicable."
The supreme court of Spain in defining the scope
of this paragraph said:
The state by virtue of such
provision of law, is not responsible for the
damages suffered by private individuals in
consequence of acts performed by its
employees in the discharge of the
functions pertaining to their office,
because neither fault nor even negligence
can be presumed on the part of the state
in the organization of branches of the
public service and in the appointment of
its agents; on the contrary, we must
presuppose all foresight humanly possible
on its part in order that each branch of
service serves the general weal and that
of private persons interested in its
operation.
"That the responsibility of the state
is limited by article 1903 to the case wherein it
acts through a special agent (and a special
agent, in the sense in which these words are
employed, is one who receives a definite and
fixed order or commission, foreign to the
exercise of the duties of his office if he is a
special official) so that in representation of the
state and being bound to act as an agent
thereof he executed the trust confided to him.
TORTS AND DAMAGES | Dean Joan S. Largo | For the exclusive use of EH 404

This concept does not apply to any 1. If incorporated

executive agent who is an employee of
the active administration and who in his It will have a juridical personality on its own and
own responsibility performs the functions therefore not a suit against the state whether or
which are inherent in and naturally not it is performing a governmental or proprietary
pertain to his office and which are function. The discussion of whether it is
regulated by law and the regulations." performing governmental or non-governmental
function will go into the discussion of liability. But
It is, therefore, evident that the State (the Government of
for suability, the charter vests it the capacity to
the Philippine Islands) is only liable, according to the
sue and be sued. So if it is Incorporated, don’t do
above quoted decisions of the Supreme Court of Spain,
function test. It is suable because the suit against
for the acts of its agents, officers and employees when
it is not suit against the State since it has
they act as special agents within the meaning of
personality of its own.
paragraph 5 of article 1903, and that the chauffeur of the
ambulance of the General Hospital was not such an agent.
2. If unincorporated
Whether the Government intends to make itself legally
liable for the amount of damages above set forth, which
It has no personality on its own but a part and
the plaintiff has sustained by reason of the negligent acts
parcel of the governmental machinery. Ex. DOJ
of one of its employees, by legislative enactment and by
and DOH. Because it has no personality of its own,
appropriating sufficient funds therefor, we are not called
the case that you will file is a case against the
upon to determine. This matter rests solely with the
State.
Legislature and not with the courts.
Dean: If you will file a case against a person, it will only be a
case against the state if you will be suing the government
Dean: The driver is not considered as special agent because
official in its official capacity and there was no allusion of
in that case, his being an ambulance driver was his regular
any malice, bad faith, corruption. Because if there is, then
function. Before the state can be sued it must have consent,
that’s his personal obligation, you would not be making the
implied or expressed by law
State perform some positive act to satisfy the obligation.
Examples of implied consent:
If the suit is against the State, this is where consent has to
come in.
1. When it initiated a suit
2. When it enters into a contract
Bar Question:
TN: Suability and Liability is a different thing that provision is
If it’s a suit against the State and there is no consent, the
for liability only, in order for the state to be liable it must be
judge by himself can suas ponte, can dismiss the case right
acting through a special agent
away. For the judge not to dismiss the case, he must find
some consent of the state to be sued.
Reason why we cannot sue the state:
Two ways of expressing consent:
1. State is the source of law, and how can you have
a right, against the source of the law, upon which
1. Express
your right to sue depends.
2. Implied
2. For the state not to be interfered with its public
service.
Express
When a case is a case against the state
If there is a law (declaration by the president nor a waiver of
the Solicitor General will not suffice)
When the state is required to do a positive act such as:
Two kinds of legislations:
1. release of funds or
2. release of property
1. General consent to be sued
2. Special or specific consent to be sued
Dean: It is rather unusual to somebody who has studied this
fundamental concept of non-suability of state to file a case
General Consent to be sued
against the state and sue it by its name, you almost always
camouflage it by filing a case not against the state by its
If you have a money claim arising from contracts, whether
name, not against the republic but against a government
express ir implied, against the government., there is already
agency
a general law which says that you can lodge the money
claim against COA and if COA does not pay then you can
When a case against a government agency a case
directly file a case after the lapse of 60 days.
against the state

Dean: When it’s a government agency that is involved, you

first determine the character of the agency whether
incorporated or unincorporated.
TORTS AND DAMAGES | Dean Joan S. Largo | For the exclusive use of EH 404
Special or Specific Consent to be Sued
Ex. Merritt case – no special agent, he asked a member of
the Congress to pass a law granting him authority to sue the
government
Implied
Example
When the government expropriates a property. The
Constitution says that private property can only be taken if
there is just compensation which can only be determined by
Court so impliedly when the government expropriates, there
is an understanding that there will be a court case if only to
determine just compensation.
When the government files a case, it opens itself from
counterclaims.
Bar Question:
In the last quarter of 2012, about 5,000 container vans of
imported goods intended for the Christmas Season were
seized by agents of the Bureau of Customs. The imported
goods were released only on January 10,2013. A group of
importers got together and filed an action for damages
before the Regional Trial Court of Manila against the
Department of Finance and the Bureau of Customs. The
Bureau of Customs raised the defense of immunity from suit
and, alternatively, that liability should lie with XYZ Corp.
which the Bureau had contracted for the lease of ten (10)
high powered van cranes but delivered only five (5) of these
cranes , thus causing the delay in its cargo-handling
operations. It appears that the Bureau, despite demand, did
not pay XYZ Corp. the Php 1.0 Million deposit and advance
rental required under their contract.
Will the action by the group of importers prosper? (5%)
Can XYZ Corp. sue the Bureau of Customs to collect rentals
for the delivered cranes? (5%)
Bar Question:
Singco sued the government for damages, after trial court
ruled in his favor and awarded damages amounting 50M. To
satisfy the judgment against the government which option is
valid for Mr. Singco?
a. Garnish the government funds (but remember that
government funds have specific purposes such
that if you divert it to other public purpose it is
already technical malversation)
b. File a claim with COA pursuant to Commonwealth
Act 327 (Dean: you go to COA if it is a money
claim arising from contract, this is money claim
arising from judgment)
c. Make representation to Congress to appropriate
the amount to satisfy the judgment
d. File a petition for mandamus in court to compel
Congress to appropriate (Dean: But you cannot
compel the government to exercise a discretionary
power which is legislative power)
e. Proceed to execute the judgment as provided for
by the Rules of Court because the state anyway
f. allowed itself to be sued. (Dean: Consent to be
sued is not consent to be liable, consent to be
sued is good only up to the proceedings prior to
the execution.)
LGUs, Municipalities, Cities
Relevant Provision
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 and supervision.
Under Art 2189 of the Civil Code, it is not necessary for the
liability therein established to attach, that the defective
public works belong to the province, city or municipality from
which responsibility is exacted. What said article requires is
that the province, city or municipality has either “control or
supervision” over the public building in question. (Jimenez v.
City of Manila)
Jimenez vs. City of Manila
Facts:
Petitioner alleged that on August 15, 1974 he, together with
his neighbors, went to Sta. Ana public market to buy
"bagoong" at the time when the public market was flooded
with ankle deep rainwater. On his way home, he stepped on
an uncovered opening obscured by the dirty rainwater,
causing a dirty and rusty four-inch nail, stuck inside the
uncovered opening, to pierce the left leg of petitioner. After
administering first aid treatment at a nearby drugstore, his
companions helped him hobble home. Petitioner became ill
and his leg swelled with great pain and was thereafter
hospitalized. After discharge, he had to walk around in
crutches. His injury prevented him from attending to the
school buses he is operating.
Petitioner sued for damages the City of Manila and the
Asiatic Integrated Corporation under whose administration
the Sta. Ana Public Market had been placed. The trial court
dismissed the complaint. Upon appeal, the IAC held the
Asiatic Integrated Corporation liable for damages but
absolved respondent City of Manila.
Issue:
W/N the IAC erred in not ruling that respondent City of
Manila should be jointly and severally liable with Asiatic
Integrated Corporation for the injuries petitioner suffered.
Ruling:
The petition is impressed with merit.
Respondent City of Manila maintains that it cannot be held
liable for the injuries sustained by the petitioner because
under the Management and Operating Contract, Asiatic
Integrated Corporation assumed all responsibility for
damages which may be suffered by third persons for any
cause attributable to it. It has also been argued that the City
TORTS AND DAMAGES | Dean Joan S. Largo | For the exclusive use of EH 404
of Manila cannot be held liable under the Revised Charter of
Manila which provides:
The City shall not be liable or held for damages or
injuries to persons or property arising from the
failure of the Mayor, the Municipal Board, or any
other City Officer, to enforce the provisions of this
chapter, or any other law or ordinance, or from
negligence of said Mayor, Municipal Board, or any
other officers while enforcing or attempting to
enforce said provisions.
Upon the other hand, Article 2189 of the Civil Code of the
Philippines provides that:
Provinces, cities and municipalities shall be liable
for damages for the death of, or injuries suffered
by any person by reason of defective conditions of
roads, streets, bridges, public buildings and other
public works under their control or supervision.
Thus, it is clear that the Revised Charter of Manila refers to
liability arising from negligence, in general, regardless of the
object, thereof, while Article 2189 of the Civil Code governs
liability due to "defective streets, public buildings and other
public works" in particular and is therefore decisive on this
specific case.
Under Article 2189 of the Civil Code, it is not necessary for
the liability therein established to attach, that the defective
public works belong to the province, city or municipality from
which responsibility is exacted. What said article requires is
that the province, city or municipality has either "control or
supervision" over the public building in question. In the case
at bar, there is no question that the Sta. Ana Public Market,
despite the Management and Operating Contract between
respondent City and Asiatic Integrated Corporation remained
under the control of the former.
There is no argument that it is the duty of the City of Manila
to exercise reasonable care to keep the public market
reasonably safe for people frequenting the place for their
marketing needs. Petitioner had the right to assume that
there were no openings in the middle of the passageways
and if any, that they were adequately covered. Had the
openingbeen covered, petitioner could not have fallen into it.
Thus the negligence of the City of Manila is the proximate
cause of the injury suffered. The City is therefore liable for
the injury suffered by the petitioner.
Teachers
2 governing laws:
1) Civil Code – Art. 2180
2) Family Code – Art. 218
If you have a case against the school or
administrator, you might want to anchor your
claim on 218
Relevant Provisions
Art. 2180. xxx. Lastly, 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 remain in their custody.
Art. 218, Family Code. The school, its administrators and
teachers, or the individual, entity or institution engaged in
child are shall have special parental authority and
responsibility over the minor child while under their
supervision, instruction or custody. Authority and
responsibility shall apply to all authorized activities whether
inside or outside the premises of the school, entity or
institution.
Dean: In Art. 2180, the first word that is important is the
word “by”. It says there that teachers shall be liable for
damages caused by their pupils or students. It’s not “to”. It
does not say that teachers shall be liable for damages
caused to their pupils or students.
So you now have the scenario where NSTP students making
a human barricade and something happens to that student
because a passerby punched this student. Is the NSTP
teacher liable? The relevant question is who caused that
damage. If it is caused by the student under his care and
supervision then, yes.
Similarity: Both deal with teachers
Difference:
Art. 2180 Ar. 218
Deals with teachers or heads Talks about teachers and
of establishments of arts & schools & administrators
trades
Talks about students or Responsibility over minor
pupils remaining in the child while under their
custody of teachers supervision
For Senior High Students: You can do both Art. 218 & 2180
For Law Students: Art. 2180
Art. 2180
It has to be that it is the act or omission of the pupils or
students under the custody of the teacher that caused
damage to another.
Dean: In the past, questions have been asked about the
damage caused on their pupils or students. You cannot hold
the teacher liable just because the student was injured but
the injury was not caused by the student under his or her
custody. The word used is BY, not TO or UPON THE
STUDENTS. It has to be that the damage was caused by the
student or pupil.
“So long as they rem ain in their custody”
You are under the school’s custody so long as you are in
school even if you are not in the classroom because you are
taking recess. The idea then is that you are in school for
some legitimate student purpose like attending a class,
taking a short break to back to the classroom after the
recess.
Q: When can we say that the student, when he
committed the act or omission causing damage to
another was in the custody of the teacher?
TORTS AND DAMAGES | Dean Joan S. Largo | For the exclusive use of EH 404
Palisoc case (old case)
It is under the custody when:
a. Student is attending class
b. When not attending class, but class in recess
Dean: You will be in our custody if you were in school,
including recess time
Recess time- the temporal interval between classes
Amadora v. CA
You are in the custody of the teacher when you are in school
to pursue a legitimate student objective, enjoy a legitimate
student right, and to pursue a legitimate student privilege. It
seems that you did not even attend class.
Facts:
Alfredo Amadora, while in the auditorium of the school, was
mortally hit by a gun by Pablito Daffon resulting to the
former’s death. Daffon was convicted of homicide through
reckless imprudence. The victim’s parents, herein
petitioners, filed a civil action for damages against Colegio
de San Jose-Recoletos, its rectors, high school principal,
dean of boys, the physics teacher together with Daffon and
2 other students. Complaints against the students were
dropped. Respondent Court absolved the defendants
completely and reversed CFI Cebu’s decision for the
following reasons: 1. Since the school was an academic
institution of learning and not a school of arts and trades 2.
That students were not in the custody of the school since
the semester has already ended 3. There was no clear
identification of the fatal gun, and 4. In any event,
defendants exercised the necessary diligence through
enforcement of the school regulations in maintaining
discipline. Petitioners on othe other hand claimed their son
was under school custody because he went to school to
comply with a requirement for graduation (submission of
Physics reports).
Issue:
WON Collegio de San Jose-Recoletos should be held liable.
Ruling:
The time Alfredo was fatally shot, he was in the custody of
the authorities of the school notwithstanding classes had
formally ended when the incident happened. It was
immaterial if he was in the school auditorium to finish his
physics requirement. What was important is that he was
there for a legitimate purpose. On the other hand, the
rector, high school principal and the dean of boys cannot be
held liable because none of them was the teacher-in-charge
as defined in the provision. Each was exercising only a
general authority over the students and not direct control
and influence exerted by the teacher placed in-charge of
particular classes.
In the absence of a teacher- in charge, dean of boys should
probably be held liable considering that he had earlier
confiscated an unlicensed gun from a student and later
returned to him without taking disciplinary action or
reporting the matter to the higher authorities. Though it
was clear negligence on his part, no proof was shown to
necessarily link this gun with the shooting incident.
Collegio San Jose-Recoletos cannot directly be held liable
under the provision because only the teacher of the head of
school of arts and trade is made responsible for the damage
caused by the student. Hence, under the facts disclosed,
none of the respondents were held liable for the injury
inflicted with Alfredo resulting to his death.
Petition was denied.
Other Doctrines:
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."
The reason for the disparity can be traced to the fact that
historically the head of the school of arts and trades
exercised a closer tutelage over his pupils than the head of
the academic school. Although the disctinction no longer
applies today, the law has not been amended.
Dean: The Court said, for as long as you are in school
whether for a legitimate student activity, as when you are
going to finish a project, or even when you are not doing
any student activity but you are there simply to enjoy a
legitimate student right or privilege, as when you’re here to
enjoy the company of classmates, the library, or when you
are here to just enjoy the ambiance. Then the Family Code
comes along. It says even when you are not in school, even
outside the school for as long as it is for an authorized
school activity the teacher is liable. So you see the change of
the meaning of the phrase “so long as you remain in our
custody”. From attending classes to not attending classes
but being just here in school for a legitimate student
privilege to now include even activities done outside the
school premises for as long as they are authorized. The only
thing that has changed between 2180 and 218 is the
persons to be held responsible. If teacher, then 2180 may
be made as basis, but if you want the school or the
administrators to be held liable as well then you go to Family
Code 218. Because there is nothing in 2180 that holds
schools and administrators liable, except that the heads of
schools of arts and trade refers to the administrator BUT not
to an academic institution. The other difference also is that
2180 deals with liability of teachers for damages caused by
their students, but 218 says school, teacher, and
administrator for the acts of the unemancipated minor. So if
one involved is a minor you can use 218, but if the one
involved is not a minor then your legal basis 2180 dealing
only with teachers.
TORTS AND DAMAGES | Dean Joan S. Largo | For the exclusive use of EH 404
There’s another way you can hold the school responsible.
And that is in the concept of school as employer or school by
way of contract.
Regino v Pangasinan Colleges
There is an existing contract between the school and
student. On the part of the school we have the obligation to
provide you with an environment conducive to learning, and
on the part of the students, they have to pay the tuition and
abide by the school rules and regulations.
3 ways in holding the school liable:
1. Art. 218 of the Family Code
2. School as employer
3. School under its contractual obligation.
How do you establish diligence of good father of a
family?
Amadora case:
The SC said, here is a teacher who has exercised the
diligence of a good father of a family. Because evidence was
presented showing that this teacher enforced the rules and
regulations of the school. The court said that there was no
showing of laxness in enforcing the rules and regulations of
the school. So even he was not there, you might have
thought that this might have been a case of absence of due
diligence because he was not there at that time. The
counter-argument was that he was not expected to be there
because there were no more classes, but still he was able to
show due diligence because he enforced the school rules
and regulations.
Knowing that now we have extended the reach of the
responsibility of teachers to include even activities outside
the school, this is the reason why in the problem you are
asked teachers to deal with students of basic education,
pupils, minors. And teachers of college of business and
economics, or law and economics, IOW, no longer minors.
CHED said, the one that governs higher educations, in so far
as field trips and educational tours are concerned, you’ve
got to follow CMO17 Series of 2012.
You have CHED being very strict about the rules to observe
when you want to go on a field trip or educational tour. First
is you cannot just do this at your will. You must have to
point this particular field trip or ed. Tour to some learning
outcome. You might even want to indicate what title or
what particular reason, what aspect in the syllabus are we
triggering.
The other is advanced coordination with the LGU if you are
doing the educational tour or field trip with the LGU, there
should be sonsultation with the faculty and the students,
with attached minutes of consultation. If you will be doing
the trip outside of the place where the school is located, you
have to coordinate with a DOT accredited travel agency. And
then, students must have to be required to come up with
learning journals, risk assessment plan, and a duly notarized
consent and medical clearance by the parent of physician
and medical certificate and medical certificate. There should
be a documentation pertaining to the program.
When you want the school to be responsible, you have to
show that the school activity was authorized.
Field trip or educational trip requirements
a. Must be in relation to a particular learning
outcome (point out to a particular unit in the
course curriculum/syllabus and not merely a
substitute work because teacher is absent)
b. If it deals with LGU, proof is needed that
permission of LGU concerned was secured and
that there was proper consultation
c. Consultations with parents were made especially if
it involves payment of sums of money. Proof:
attach minutes of consultation with signatures of
attendees
d. Briefing with the students at least two months
before the educational tour or field trip. Tours are
only to be done with accredited Department of
Tourism operators as shown by a certificate of
accreditation
e. There must be a learning journal for processing
and reflection
f. Risk assessment and medical certificate with duly
notarized consent for minor participants
g. Debriefing program must be submitted
LIABILITY OF TEACHERS
Student must be under his custody or supervision regardless
of age. He is under custody if he is in class, or for as long as
he is in school, or even outside school for as long as it is an
authorized school activity.
LIABILITY OF SCHOOLS OR ADMINISTRATORS
Article 218 of the Family Code requires that the responsibility
comes about if an act of a minor student is involved.
SCHOOL AS EMPLOYER
University of the East vs Romeo Jader
The teacher failed to submit the grades on time. The law
student was already reviewing for the bar when he was told
that he did not pass the subject. The student asked for
moral damages.
SC: He is not entitled to moral damages, never mind the
wounded feelings and anxiety. It would have been the
student’s duty to check grades and ascertain the accuracy of
his records before throwing himself to the rigors of bar
review. Damages were imposed upon the teacher and the
school but not moral damages.
“Educational institutions are duty-bound to inform the
students of their academic status and not wait for the latter
to inquire from the former. The conscious indifference of a
person to the rights or welfare of the person/persons who
may be affected by his act or omission can support a claim
for damages. Want of care to the conscious disregard of civil
obligations coupled with a conscious knowledge of the cause
TORTS AND DAMAGES | Dean Joan S. Largo | For the exclusive use of EH 404
naturally calculated to produce them would make the erring
party liable. Petitioner ought to have known that time was of
the essence in the performance of its obligation to inform
respondent of his grade.
It cannot feign ignorance that respondent will not prepare
himself for the bar exams since that is precisely the
immediate concern after graduation of an LL.B. graduate. It
failed to act seasonably. Petitioner cannot just give out its
student's grades at any time because a student has to
comply with certain deadlines set by the Supreme Court on
the submission of requirements for taking the bar.
Petitioner's liability arose from its failure to promptly inform
respondent of the result of an examination and in misleading
the latter into believing that he had satisfied all requirements
for the course.”
Dean: UE was held liable because of its character as
employer of the teacher and not because of injuries suffered
by a minor. The school may be sued under Article 2180 of
the Civil Code, the school being the employer of the teacher.
DEFENSE/S
Due Diligence
Amadora vs Court of Appeals
Dean: Here is a teacher who has exercised the diligence of a
good father of a family. Because evidence was presented
showing that this teacher enforced the rules and regulations
of the school.
“And while it is true that the offending student was still in
the custody of the teacher-in-charge even if the latter was
physically absent when the tort was committed, it has not
been established that it was caused by his laxness in
enforcing discipline upon the student. On the contrary, the
private respondents have proved that they had exercised
due diligence, through the enforcement of the school
regulations, in maintaining that discipline.”
Evidence of Due Diligence of Teachers
It must be shown that he has maintained discipline and
enforced the rules and regulations of the school in enforcing
discipline upon the student.
DUTIES & OBLIGATIONS OF TEACHERS UNDER CIVIL
LAW
1. Basic Education
a. Education Act of 1982
b. RA 7610
c. Department No. 88 (Manual Regulation for
Private Schools)
2. College
Governed by CHED CMO 40- Manual of
Regulations for Private Higher Educational
Institutions
Dean: It is important to know the governing laws because
there are different set of requirements observed.
Example:
We said that in order not to incur liability, you must prove
diligence. To prove so, it must be shown that teachers have
enforced rules and regulations on discipline. But there is a
very thin line between separating Abuse (RA 7610). 1
Someone for instance is very naughty and runs all over the
classroom and you are a basic education teacher. How will
you enforce discipline over the pupil? It is difficult to enforce
discipline without demeaning or degrading the child.
This is important such that DepEd came up with a child
protection policy such as:
The teacher cannot do corporal punishment such as:
• inflicting blows, such as but not limited to hitting,
kicking, slapping, lashing of any part of the child’s
body
• with the use of instrument such as broomstick,
whip or bell
• striking the child’s face which is declared as the
“no-contact zone”
• pulling the hair;
• twisting the joints
• cutting or piercing the skin
• forcing the child to perform physically painful and
damaging acts such as but not limited to holding a
weight or weights
• deprivation of a child’s need (e.g. kahi-on)
• deliberate exposure to fire or water
• confining the child
• imprisonment
• verbal abuse such as swearing, cursing
• forcing the child to wear or do something that
may humiliate or delimit him/her and make
him/her look foolish
IOW, you can’t do anything but impose positive and not
violent discipline.
Focus on the act and not the actor.
Summary: Enforce rules and regulations but take into
consideration RA 7610.
Collateral Source Rule
Mitsubishi vs. Mitsubishi
Facts:
The parties CBA covered P40,000 hospitalization insurance
benefits. After expiration, they executed another and
increasing the amount to P50,000. The room and board
expenses were also increased from P300 to P375. On
separate occasions, Calida, Oabel and Martin filed for their
1
Child Abuse- any act which degrades or demeans the intrinsic
worth and dignity of a child
TORTS AND DAMAGES | Dean Joan S. Largo | For the exclusive use of EH 404
claims for reimbursement of hospitalization expenses of their
dependents.
Mitsubishi paid only a portion of the claims. The three
claimed that they deserve more under their CBA. Mitsubishi
contended that double insurance would result because they
have already received payment of portions of the claims
from other health insurance providers. The voluntary
arbitration favored the three saying that the CBA does not
prohibit reimbursement even if there is presence of other
health insurers. CA reversed the decision saying that
Mitsubishi will only be liable to amounts not covered by
other health insurance.
Issue:
WON the collateral source rule would apply.
Ruling:
Collateral source rule was originally applied to tort cases
wherein the defendant is prevented from benefitting from
the plaintiff’s receipt of money from other sources. Under
this rule, if an injured person receives compensation for his
injuries from a source wholly independent of the tortfeasor,
the payment should not be deducted from the damages
which he would otherwise collect from the tortfeasor. The
collateral source rule applies in order to place the
responsibility for losses on the party causing them.
Thus, it finds no application to cases involving no-fault
insurances under which the insured is indemnified for losses
by insurance companies, regardless of who was at fault in
the incident generating the losses. Here, it is clear that
Mitsubishi is a no-fault insurer. Hence, it cannot be obliged
to pay the hospitalization expenses of the dependents of its
employees which had already been paid by separate health
insurance providers of said dependents.
STRICT LIABILITY TORTS
Concept
This is not your usual torts. You are not required to prove
fault here. It may even be possible that there is no fault
although we have been told that the very core of negligence
or tort case is the proof of negligence or the negligence that
you need to establish.
Here, the law has called it strict liability because there is no
need to establish fault. But there is liability. Recall our
discussion before on one of the functions of tort law. Among
the many reasons is you want to distribute the risk of loss.
Here, the scenario contemplated of the very few instances of
strict liability is that it is a useful activity, a pleasurable
activity. But, at one point, it has caused damaged to another
and the one who should be held liable is the one who
derived pleasure from the useful or necessary activity.
Possessor of an animal
Relevant Provision
Defense: The fault was caused by the person who suffered
the damage
TN: That you are not the owner is not a defense because
the law here mentions of “possessor of animal”
Bar Question:
Primo keeps an iguana which he keeps in a fence. But this
fence was knocked down by a typhoon resulting in the
iguana crawling out of the gate of Primo’s residence. A
neighbour was passing by and threw stones at the iguana
causing the iguana to move towards him. The neighbour
panicked and tripped and suffered a broken leg. (4 pts) Is
there anyone liable for his injuries?
Manufacturers and Processers of Foodstuffs
Relevant Provision
Dean: The common defense is that there is no contractual
relationship between the consumer and the manufacturer.
But the law specifically mentions that there can be liability
on the part of the manufacturer or processor of foodstuff
nevermind that there was no contractual relationship
between the manufacturer and consumer.
In the case of druggist, caveat emptor is not applicable.
Mercury Drug
Head of Family
Head of Family is responsible for damages caused by
anything thrown from his building.
Example:
You live in the 4th floor and your son throws something and
the passerby was hit and caused his death. It is the head of
the family who is responsible.
SPECIAL TORTS
It is special because it deals with the chapter on human
relations.
Art. 21. Any person who wilfully causes loss or injury to
another in manner that is contrary to morals, good customs
or public policy shall compensate the latter for the damage.
Art. 26. Every person shall respect the dignity, personality,
privacy and peace of mind of his neighbors and other
persons. The following and similar acts, though they may
not constitute a criminal offense, shall produce a cause of
action for damages, prevention and other relief:
(1) Prying into the privacy of another's residence;
(2) Meddling with or disturbing the private life or family
relations of another;
(3) Intriguing to cause another to be alienated from his
friends;
(4) Vexing or humiliating another on account of his religious
beliefs, lowly station in life, place of birth, physical defect, or
other personal condition.
Art. 27. Any person suffering material or moral loss because
a public servant or employee refuses or neglects, without
just cause, to perform his official duty may file an action for
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damages and other relief against the latter, without
prejudice to any disciplinary administrative action that may
be taken.
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. 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 a 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
may be proved by a preponderance of evidence. 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.
Abuse of Right Principle
Relevant Provisions
Art. 19. Every person must, in the exercise of his rights and
in the performance of his duties, act with justice, give
everyone his due, and observe honesty and good faith.
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 manner that is contrary to morals, good customs
or public policy shall compensate the latter for the damage.
If there is a common violation of the law making you liable
for damages, you anchor it with Art. 20.
Even if there is no law that you can point to but there is
good customs or public policy as legal basis you can still ask
for damages under Art. 21.
When you make a case under the abuse of right, you have
to make out malice or bad faith after all, every act is
presumed to have been made in good faith.
Jader case
Emotional Distress Tort
MVRS Publications
2 things that must be proven:
1. Extreme and outrageous conduct on the part of
the defendant
TORTS AND DAMAGES | Dean Joan S. Largo | For the exclusive use of EH 404
2. Extreme mental distress on the part of the plaintiff
Art. 26 modified RA 9262
If you come to the rescue of a woman victim of violence,
you will not be held liable for any criminal, civil or
administrative liability.
Interference with Contractual Relations
Concept
Elements:
a. There is knowledge that there is such a contract
b. You caused the severance of the contract
c. The severance was without legal or justifiable
excuse
Bar Question:
A and B had this employment contract. C learned that A was
not receiving much of a compensation from B. He told A to
work with him. Is that interference of contractual relations?
MEDICAL MALPRACTICE
There will be medical malpractice if there exists physician-
patient relationship and there is failure to observe the
standard of care.
Physician-patient relationship must be established.
There are certain legal issues (gray areas) in establishing
physician – patient relationship:
a. Whether a non-paying person may be considered a
patient.
b. Whether there exists p-p relationship if a person
consult a doctor in order to get clearance every end of
the school year
What if there is a mistake in diagnosis?
Example: a professor who was initially diagnosed to
have high cholesterol counts only to find out later that
there is a mistake in diagnosis. Imagine the anxiety and
the hassle in seeking for second and third advised
caused by such misdiagnosis.
c. Whether there is physician-patient relationship in case
a company doctor is seeing an applicant for a job in
said company for evaluation.
Note: Like lawyer-client, you don’t have to be compensated
in order to establish the relationship.
There is failure to observe the degree of care.
The following must be established:
a. the standard or degree of care, and
b. the failure to comply that duty of care.
Locality Rule
The standard of care is established by looking at the
prevailing standard in the same locality. The standard of
care is the prevailing degree of care in similar conditions and
like circumstances.
So, you cannot apply the same standard prevailing in
Siquijor with that of Cebu City.In Siquijor, the physicians
cannot properly diagnose or they can only diagnose based
on symptoms uponcheck up and consultation because they
lack facility.
Critics in the locality rule.
There is not much incentive to improve the level of services.
Battle of Experts
In stabling the prevailing standard and the departure from
standard, you need to present expert evidences. But the
same comes with expense. Thus, there is a battle of
experts. Both parties presenting expert evidence to prove
the standard of care and that there is departure of the
standard on one hand, and the other, with a standard
General Rule:
In medical malpractice you should come up with experts to
establish standard of care and deviation from that.
For defendant, it must come up with its own expert evidence
to show that it is not the standard of care, and even if such
is the standard of care, there is no deviation.
Exception
Ramos vs CA
The doctrine of res ipsa loquitor was applied
Facts:
Erlinda Ramos was advised to undergo an operation for the
removal of a stone in her gall bladder. Following the ill-fated
operation, Erlinda remained in comatose condition until her
death.
Ruling:
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 loquitur is
availed by the plaintiff, the need for expert medical
testimony is dispensed with because the injury itself
provides the proof of negligence. The 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.
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
TORTS AND DAMAGES | Dean Joan S. Largo | For the exclusive use of EH 404
required to show not only what occurred but how and why it
occurred.
In this case the doctrine is applicable since the brain
damage, which Erlinda sustained, is an injury which does not
normally occur in the process of a gall bladder operation. In
fact, this kind of situation does not happen in the absence of
negligence of someone in the administration of anesthesia
and in the use of endotracheal tube. Normally, a person
being put under anesthesia is not rendered decerebrate as a
consequence of administering such anesthesia if the proper
procedure was followed. Furthermore, the instruments used
in the administration of anesthesia, including the
endotracheal tube, were all under the exclusive control of
private respondents, who are the physicians-in-charge.
Core defences for the defendant.
1. Plaintiff’s own negligence
Fe Cayao- Lasam v. Ramolete
No negligence can be attributed to the petitioner-doctor
because the immediate cause of the accident resulting in
Editha’s injury was her own omission when she did not
return for a follow-up check-up, in defiance of petitioner
doctor’s orders.
2. Lack of proximate causation
3. Lack of fault or there is exercise of reasonable
diligence
4. Doctrine of informed consent.
Dr. Rubi Li vs. Spouses Soliman
Angelica, underwent a biopsy of the mass located in her
lower extremity .She was suffering from osteosarcoma,
osteoblastic type, a high-grade (highly malignant) cancer of
the bone which usually afflicts teenage children. Following
this diagnosis and as primary intervention, Angelica’s right
leg was amputated by Dr. Tamayo in order to remove the
tumor. As adjuvant treatment to eliminate any remaining
cancer cells, and hence minimize the chances of recurrence
and prevent the disease from spreading to other parts of the
patient’s body, chemotherapy was suggested. At the first
cycle of chemotherapy treatment, she suffered complications
and later on died.Hence this action for damages.
Ruling: Dr. Li is not liable.
There are four essential elements a plaintiff must prove in a
malpractice action based upon the doctrine of informed
consent: (1) the physician had a duty to disclose material
risks; (2) he failed to disclose or inadequately disclosed
those risks; (3) as a direct and proximate result of the failure
to disclose, the patient consented to treatment she
otherwise would not have consented to; and (4) plaintiff was
injured by the proposed treatment. The gravamen in an
informed consent case requires the plaintiff to point to
significant undisclosed information relating to the treatment
which would have altered her decision to undergo it.
There was adequate disclosure of material risks inherent in
the chemotherapy procedure performed with the consent of
Angelica’s parents. Respondents could not have been
unaware in the course of initial treatment and amputation of
Angelica’s lower extremity, that her immune system was
already weak on account of the malignant tumor in her
knee. When petitioner informed the respondents beforehand
of the side effects of chemotherapy which includes lowered
counts of white and red blood cells, decrease in blood
platelets, possible kidney or heart damage and skin
darkening, there is reasonable expectation on the part of the
doctor that the respondents understood very well that the
severity of these side effects will not be the same for all
patients undergoing the procedure. In other words, by the
nature of the disease itself, each patient’s reaction to the
chemical agents even with pre-treatment laboratory tests
cannot be precisely determined by the physician. That death
can possibly result from complications of the treatment or
the underlying cancer itself, immediately or sometime after
the administration of chemotherapy drugs, is a risk that
cannot be ruled out, as with most other major medical
procedures, but such conclusion can be reasonably drawn
from the general side effects of chemotherapy already
disclosed.
As a physician, petitioner can reasonably expect the
respondents to have considered the variables in the
recommended treatment for their daughter afflicted with a
life-threatening illness. On the other hand, it is difficult to
give credence to respondents claim that petitioner told them
of 95% chance of recovery for their daughter, as it was
unlikely for doctors like petitioner who were dealing with
grave conditions such as cancer to have falsely assured
patients of chemotherapy’s success rate. Besides, informed
consent laws in other countries generally require only a
reasonable explanation of potential harms, so specific
disclosures such as statistical data, may not be legally
necessary.
Liability of Hospitals
PSI vs. Agana
We ruled in our Ramos pronouncement that for purposes of
apportioning responsibility in medical negligence cases, an
employer-employee relationship in effect exists between
hospitals and their attending and visiting physicians. We said
that the unique practice (among private hospitals) of filling
up specialist staff with attending and visiting "consultants,"
who are allegedly not hospital employees, presents problems
in apportioning responsibility for negligence in medical
malpractice cases. In the first place, hospitals exercise
significant control in the hiring and firing of consultants and
in the conduct of their work within the hospital premises.
While 'consultants' are not, technically employees, the
control exercised, the hiring, and the right to terminate
consultants all fulfill the important hallmarks of an employer
employee relationship, with the exception of the payment of
wages.
PSI vs. Agana – Motion for Reconsideration
While in theory a hospital as a juridical entity cannot practice
medicine, in reality it utilizes doctors, surgeons and medical
practitioners in the conduct of its business of facilitating
medical and surgical treatment.
Where an employment relationship exists, the hospital may
be held vicariously liableunder Article 2176 in relation to
TORTS AND DAMAGES | Dean Joan S. Largo | For the exclusive use of EH 404
Article 2180 of the Civil Code or the principle of respondeat
superior.
The “control test” is applicable to determine if there is an
ER-EE relationship between hospital and doctor. Since
Aganas never questioned that Dr.Ampil is not an employee
of PSI before the RTC or CA, such fact became binding and
conclusive in the SC. But for the benefit of the intervenors,
the SC said that since there was insufficient evidence that
PSI exercised the power of control or wielded power over
the means and the details of the specific process by which
Dr.Ampail applied his skills. PSI cannot be held vicariously
lible for the negligence of Dr.Ampil under irespondeat
superior
Q: Do you think there is really no em ployee-em ployer
relationship betw een the hospital and the doctors the
hospital accredited?
In Ramos case, the court said that the accreditation does
not confirm ee-er relationship.
An argument could be that no doctor can practice unless
duly accredited. Can they not be liable under the control test
in Labor Law?
PSI vs Agana (MR)
Even when no employment relationship exists but it is shown
that the hospital holds out to the patient that the doctor is
its agent, the hospital may still be vicariously liable under
Article 2176 in relation to Article 1431 and Article 1869 of
the Civil Code or the principle of apparent authority.
PSI vs Agana
Apparent authority or agency by estoppel
The liability of hospital is also anchored upon the agency
principle of apparent authority or agency by estoppel and
the doctrine of corporate negligence which have gained
acceptance in the determination of a hospital's liability for
negligent acts of health professionals. Apparent authority,
or what is sometimes referred to as the "holding out" theory,
or doctrine of ostensible agency or agency by estoppels has
its origin from the law of agency. It imposes liability, not as
the result of the reality of a contractual relationship, but
rather because of the actions of a principal or an employer
in somehow misleading the public into believing that the
relationship or the authority exists.
In this case, PSI publicly displays in the lobby of the Medical
City Hospital the names and specializations of the physicians
associated or accredited by it, including those of Dr.Ampil
and Dr. Fuentes. PSI is now estopped from passing all the
blame to the physicians whose names it proudly paraded in
the public directory leading the public to believe that it
vouched for their skill and competence. By accrediting
Dr.Ampil and Dr. Fuentes and publicly advertising their
qualifications, the hospital created the impression that they
were its agents, authorized to perform medical or surgical
services for its patients.
In the present case, it was duly established that PSI
operates the Medical City Hospital for the purpose and under
the concept of providing comprehensive medical services to
the public. Accordingly, it has the duty to exercise
reasonable care to protect from harm all patients admitted
into its facility for medical treatment. Unfortunately, PSI
failed to perform such duty.
Liability of other attending physicians
PSI vs Agana
Ship’s Captain Rule
Under the "Captain of the Ship" rule, the operating surgeon
is the person in complete charge of the surgery room and all
personnel connected with the operation. Their duty is to
obey his orders.
DAMAGES
Things to remember in asking for damages:
1. What are the requirements before one can claim
damages?
2. Can this kind can stand alone?
3. Is this kind of damages required to co-existwith
other kinds of damages?
Problem1:
X was unable to graduate and unable to take the Bar
because he failed in one of the subjects. Is X entitled to
damages?
A: No. Damnum absque injuria.
Problem2:
There were students of Talisay City College who vandalize
the school premises. So they are not permitted to enrol.
They filed a case against the school.
Problem3:
Two nursing students filed a case against the school because
they are not permitted to graduate.
Problem4:
There is a rest house with full view of mountain ranges, so
peaceful and quiet. You can enjoy fresh air and relax. A road
network was built just outside of the rest house and there
comes the dust and everything that comes with civilization.
Everything was gone. Are you entitled to damages?
A: No. There can be damage without injury therefore
damage without compensation.
Concept: Damage, damages, compensation, injury
Dam ages refer to the compensation for damage that has
caused you.
Dam age would be the loss, the hurt or the harm.
Injury – consists of a violation of some legal obligation.
TORTS AND DAMAGES | Dean Joan S. Largo | For the exclusive use of EH 404
To be entitled to damages, there must be damage plus
injury.
DAMAGE VS INJURY
Damage: loss, hurt, harm
Injury: violation of a legal obligation or legal duty
There can be hurt without violation of legal duty.
Example
Breach of promise to marry
There is no violation of legal duty if the filing of the case was
not motivated by malice, ill will or harassment. If the filing of
the case was motivated solely by the need to vindicate his
right, your loss or injury will not amount to violation of your
legal right.
Impt: There can be damage without injury and that’s not the
kind that will bring about damages.
Damages: Damage + injury of legal duty
Dean: In the US, they practice frocking. Since it released
methane, the drinking water was contaminated with
methane. The residents were forced to flee from their home
but the resident nearest to the site contracted a rare disease
that affected their nervous system. It made them incoherent
in their speech, could not do simple tasks and some
eventually died. This is important in determining the special
kind of damages. In the complaint there is a prayer. At the
end, it would state:
The plaintiff also asks other relief and remedy consistent in
law and equity. (General Relief)
If it is MENTAL damages, it can be covered by the prayer of
general relief. Such that, if you did not indicate in the prayer
expressly because you had a general prayer of relief it can
very well be proven in trial and you cannot be slapped with
the statement that what has not been alleged cannot be
proved because the general damages can be embraced in
that general prayer for relief.
What if it is special damages?
It cannot be embraced in the general prayer for relief. It
must be specifically pleased.
In the US case, it would seem that it would fall under
general damages. However, if the injury is such that it has
brought upon you damages not usually occurring in such
type of injuries, then you would have to specifically plead
such. It cannot be embraced in the general prayer for relief.
Dean: In special damages not specifically pleaded, you can
try your luck that even if it is not specifically pleaded but the
evidence has crept into the records without the other party
objecting, the judge can now take cognizance of it. File an
amendment to conform to evidence. But that is on the
assumption that the other party fails to object.
Kinds of Damages (MENTAL):
1. Actual or Compensatory
2. Moral
3. Temperate
4. Exemplary
5. Liquidated
6. Attorney’s Fees
Actual or Compensatory Damages
TN: If you do not prove the damages that you asked for, the
complaint will be of no use.
Art. 2199. Except as provided by law or by stipulation, one
is entitled to an adequate compensation only for such
pecuniary loss suffered by him as he has duly proved. Such
compensation is referred to as actual or compensatory
damages.
Important Words in the Provision
1. Adequate
When it comes to actual damages, the purpose of the law is
to give you adequate compensation. In other damages, the
purpose is different.
When we say adequate compensation, it would mean FULL
compensation.
What kind of loss?
The loss that is pecuniary in character. Full compensation for
the monetary loss. You must first duly prove you pecuniary
loss.
Actual damages cannot be established by mere testimonial
evidence.
You have to present receipts. If it is actual damages you are
presenting, you must present receipts.
Component of actual damages:
Art. 2200. Indemnification for damages shall comprehend
not only the value of the loss suffered, but also that of the
profits which the obligee failed to obtain.
In one case the Court has said that it can be that you can
ask for the pecuniary loss and also the profits that you did
not obtain.
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 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.
TORTS AND DAMAGES | Dean Joan S. Largo | For the exclusive use of EH 404
Contracts and Quasi-Contracts:
If there is good faith: Natural and probable consequences of
the breach
If there is bad Faith:
If there is bad faith, malice, or wanton attitude, you can ask
not only for the natural and probable consequences but also
for those that may be reasonably attributed to the
performance of the obligation, whether or not foreseen.
Example:
The movie film gets broken when it is delivered to the
theater
The reasonably expected profit for the week is 50K.
However the week fell on the town fiesta, the expectation is
150K.
Good faith: 50K
Bad Faith: 150K
Crimes and Quasi-Delicts:
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.
Natural and probable consequences of the act or omission,
whether foreseen or unforeseen.
In the US, they call it the “eggshell skull” Rule.
Components of Actual Damages:
For the fact of death: 3,000 (This has already been
increased by 50,000 but a recent case in April 2016 has
increased it to 75,000)
Additional compensation: with aggravating circumstance
Loss of Earning Capacity:
Life expectancy = 2/3 x [80 – age at the time of death]
Loan or forbearance:
July 2013 – uniform 6% legal rate of interest
Attorney’s Fees:
It is an item of Actual Damages. This will not go to the
lawyer, but to the client.
Two Kinds of Attorney’s Fees:
1. Ordinary
2. Extraordinary
Relevant Provision
Art. 2208. In the absence of stipulation, attorney's fees and
expenses of litigation, other than judicial costs, cannot be
recovered, except:
(1) When exemplary damages are awarded;
(2) When the defendant's act or omission has
compelled the plaintiff to litigate with third
persons or to incur expenses to protect his
interest;
(3) In criminal cases of malicious prosecution against
the plaintiff;
(4) In case of a clearly unfounded civil action or
proceeding against the plaintiff;
(5) Where the defendant acted in gross and evident
bad faith in refusing to satisfy the plaintiff's plainly
valid, just and demandable claim;
(6) In actions for legal support;
(7) In actions for the recovery of wages of household
helpers, laborers and skilled workers;
(8) In actions for indemnity under workmen's
compensation and employer's liability laws;
(9) In a separate civil action to recover civil liability
arising from a crime;
(10) When at least double judicial costs are awarded;
(11) In any other case where the court deems it just
and equitable that attorney's fees and expenses of
litigation should be recovered.
In all cases, the attorney's fees and expenses of litigation
must be reasonable.
2 kinds of Attorney’s fees:
1. Attorneys fees in the ordinary concept – the
compensation for the services rendered by a lawyer.
2. Attorneys fees in the extraordinary concept –
extraordinary because it really is an item of damage and
because it is an item of damages it goes to the client
Codal provision would tell that no attorney’s fees should
really be due as a matter of rule. Why?
Dean: Better that we fight it in the court rather than putting
the law in your own hands. You encourage litigation.
Because you want to encourage people to go to court in
order to deal with their disputes. The rule is attorneys fees
cannot be recovered, much more expenses of litigation.
There are two instances where you can recover
attorney’s fees:
1. There is stipulation; and
2. If not, it has to fall under any of the circumstances
mentioned in the law.
Dean: First, if there is stipulation, attorney’s fees may be
recovered. The codal provision says “in the absence
stipulation, attorneys and expense of litigation cannot be
recovered.” Conversely if there is stipulation, then attorney’s
TORTS AND DAMAGES | Dean Joan S. Largo | For the exclusive use of EH 404
fees can be recovered. So what does that mean? That
means when you draft contracts with your clients,
youstipulate. Because it says attorneys fees cannot be
recovered except if there is stipulation, you might want to
keep that in mind when drafting contracts with your clients
because when you stipulation for recovery of attorneys fees
then attorneys fees can be recovered. Second, even in the
absence of stipulation, attorneys fees may also be recovered
in all these instances under Art. 2208.
Why are we putting this out?
Dean: Because when you draft your complaint and you want
your client to recover attorneys fees, you should be able to
make up any or some of the scenarios indicated. You have
to mindful of the instances where attorneys fees can be
permitted or is permitted by law to be recovered. Because
that should find its way in your allegations in your complaint
if you are asking as part of your prayer for relief the
recovery of attorneys fees. But be mindful of what the court
said there is the ordinary concept of attorneys fees as
payment to counsel and there is extraordinary concept of
attorneys fees as item of damages and it goes to the client.
Quirante vs. IAC
What is being claimed here as attorney's fees by petitioners
is, however, different from attorney's fees as an item of
damages provided for under Article 2208 of the Civi Code,
wherein the award is made in favor of the litigant, not of his
counsel, and the litigant, not his counsel, is the judgment
creditor who may enforce the judgment for attorney's fees
by execution.
Fasap vs. PAL
The Motion for Reconsideration is hereby DENIED with
FINALITY. The assailed Decision dated July 22, 2008 is
AFFIRMED with MODIFICATION in that the award of
attorneys fees and expenses of litigation is reduced to
P2,000,000.00. The case is hereby REMANDED to the Labor
Arbiter solely for the purpose of computing the exact
amount of the award pursuant to the guidelines herein
stated.No futher pleadings will be entertained.
This was the case (FASAP v PAL) where Estilito Mendoza
wrote the SC a letter that lead to the reversal of the same
ruling where the SC said the decision is affirmed and any
and all MR is denied with finality.
It is in this case where SC said the attys fees found inArticle
2208 of the Civil Code, specifically par. 7 thereof which
pertains to actions for recovery of wages, and is payable not
to the lawyer but to the client, unless they have agreed that
the award shall pertain to the lawyer as additional
compensation or as part thereof.
What are the requirements before the court can
validly grant attorneys fees?
First, the reason for the award of attorneysfees must first be
in the text of the decision.
What must be in the text?
a. The legal basis
b. The factual basis for the award.
Dean: The court should be able to point out why it is
granting attorneys fees and what would be the factual
justification for the grant of attorneys fees. So the body of
the decision must contain both the factual and the legal
basis for the grant of attorneys fees. It should find its way in
the dispositive portion because the only thing you can
enforce or execute in the judgment is the dispositive portion.
It would be wrong for the court to just grant attorneys fees
in the wherefore and not find the justification in the text. It
has to be in the text and in the dispositive portion.
Temperate Damages
Relevant Provision
Art. 2224. Temperate or moderate damages, which are
more than nominal but less than compensatory damages,
may be recovered when the court finds that some pecuniary
loss has been suffered but its amount cannot, from the
nature of the case, be proved with certainty.
In the definition of temperate damages, it says less than
actual or compensatory damages. Nonetheless, there are
similarities between temperate and actual damages.
What would be the similarity between actual and
temperate?
Temperate is also meant to address pecuniary loss
But why did the law say less than compensatory?
It is less than compensatory because the goal of actual
damages is adequate compensation. For temperate
damages, youcan’t really say it is the full or adequate
compensation that you find in actual damages because the
kind of pecuniary loss you have here is such that by the very
nature of the loss, it cannot be proved with certainty. You
resort to temperate damages only if there is pecuniary loss
but the kind of pecuniary loss is such that it cannot be
establish with exactitude.
Example of monetary loss but still cannot be established
with certainty given is loss of commercial standing. But
how much? You can’t quantify with definiteness.
Dean: It is therefore wrong for people to ask temperate
damages for burial expenses that hadn’t been established
because no receipts were presented. The kind of loss in
there can be proved with certainty and the fact that he did
not present receipts should mean that he should not be
awarded damages because actual damages requires proof of
actual loss. You run to temperate damages only if you
know there is pecuniary loss but it cannot be
established with certainty.
When the court said temperate damages should be allowed
in cases where from the nature of the case, definite proof of
pecuniary loss cannot be abused. But the court is certain
that there is pecuniary loss. In fact you have the court
saying where the losses by the very nature can be
established with certainty, it is error to award
temperate damages.
TORTS AND DAMAGES | Dean Joan S. Largo | For the exclusive use of EH 404
In this a case, they hired workers for the extra 2 days of the
wake but the record did not show receipts for the extra 2
days–you can’t justify that, instead of awarding actual
damages, award temperate damages—the kind of pecuniary
loss could have been proven with certainty.
TN: You would encounter cases where court instead of
awarding actual damages would instead award temperate
damages—do not cite those as authorities because the law
says you grant temperate only if by the nature of loss it
cannot be proved with certainty.
TN: You can’t ask for actual at the same time temperate.
They are diametrically opposed; they cannot stand together:
one can be established with certainty; the other cannot be
established with certainty. So these are the two kind of
damages that cannot co-exist.
Q: In the reasonable certainty contemplated by the
court in awarding actual or temperate, does that
include loss of earning capacity?
Dean: You have the court categorizing loss of earning
capacity as belonging to actual because you can…the court
has given as formula but if you want to you can establish
those by receipts. [sic]
For example, what was the basis of the court in saying that
if you can present proof then we will assume that 50% of
your living expenses. Your living expenses will be 50% of
your gross earnings. Because really it could have been
established with reasonable certainty. So those kinds of loss
of earning capacity would be categorize as actual because
they can established with reasonable certainty.
In Ramos v CA, at the time they were litigating the case,she
was still is in comatose or vegetative state and the injury is
chronic and continuing. The court said, we can’t have the
parties coming back to court and asking for actual damages
to cover the period of time the case has finally decided and
yet expenses are still continuing. So for those scenario to
cover the expenses that are acknowledged to exist
but still continuing up until the completion of the
case that will have to be dealt with via temperate
damages. But that’s the only exceptional scenario where
you have both actual and temperate damages. In the
natural order of things and by the very nature of actual and
temperate, they cannot coexist.
Ramos vs. CA
In these cases, the amount of damages which should be
awarded, if they are to adequately and correctly respond to
the injury caused, should be one which compensates for
pecuniary loss incurred and proved, up to the time of trial;
and one which would meet pecuniary loss certain to be
suffered but which could not, from the nature of the case,
be made with certainty. 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.
Nominal Damages
Relevant Provision
Art. 2221. Nominal damages are adjudicated in order that a
right of the plaintiff, which has been violated or invaded by
the defendant, may be vindicated or recognized, and not for
the purpose of indemnifying the plaintiff for any loss
suffered by him
If you look at temperate damages it says it’s more than
nominal but less than actual or compensatory damages. Now
we know why it’s less than compensatory because it’s not
the full and adequate compensation.
But why did the law say temperate damages is more
than nominal? We have to understand what is
nominal.
Dean: The court said when it is nominal damages, they are
adjudicated in order that the right of the plaintiff which has
been violated or invaded by defendant be vindicated or
recognized and not for the purpose of indemnifying plaintiff
for any loss suffered by him. There you see the answer why
temperate damages is more than nominal damages.
Why is temperate damages more than nominal?
Look at the purpose of nominal damages—the purpose of
nominal damages is not compensation. It says it is not for
the purpose of indemnifying plaintiff for the loss suffered.
The purpose of nominal damages is not for compensation
but vindication or recognition of a right that has been
violated.
In labor cases, just cause but without procedural due
process, the amount of nominal damages is 30,000;
authorized cause but without procedural dues process, the
amount of nominal damages is 50,000.
Moral damages
Relevant Provisions
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
pecuniary computation, moral damages may be recovered if
they are the proximate result of the defendant's wrongful act
for omission.
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;
TORTS AND DAMAGES | Dean Joan S. Largo | For the exclusive use of EH 404
(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.
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.
Dean: The way Art. 2217, moral damages would have to
encompass, not pecuniary loss, but damage as physical
suffering, mental anguish, fright, serious anxiety,
besmirched reputation, wounded feelings, moral shock,
social humiliation, and similar injury.
There is a reason why we need to take cognizance of what
kind of damage is being addressed by moral damages. If
you look at the definition onactual damages, it is pecuniary
loss. In order to recover the loss, there has to be proof how
much did you lost by way of monetary loss precisely because
it is something that you can adequately capture.
But when we say moral damages addressing physical
suffering, mental anguish, fright, serious anxiety,
besmirched reputation, wounded feelings, moral
shock, social humiliation, and similar injury, can you
even quantify with exactness of what would be the
extent of adequate compensation for besmirched
reputation?
You can’t. That is why the one main difference between the
requirements for claiming actual damages vs. moral
damages is that the former presupposes receipts because
the court can only grant the amount which was established
by receipts.
But when it comes to moral damages, the requirement as to
proof is not that exact because you can’t really quantify how
much it is, in money terms, what would constitute as
adequate compensation for physical suffering, mental
anguish, fright, serious anxiety, besmirched reputation,
wounded feelings, moral shock, social humiliation, and
similar injury.
If you are therefore asking for moral damages you are not
bound to provide receipts. What you are instead
required to do is to show that the grounds exist for
the grant of moral damages. The list of circumstances
where you can ask for moral damages is limited because it
can only be asked for in cases covered in 2219 and
analogous cases.
“analogous cases”- have to be germane to the
enumerated circumstances. Soyou have to establish that
there was wounded feelings etc. that you suffered. But more
than that, you must show that it comes within the grounds
enumerated in the law or analogous to the grounds in 2219.
T.N.: The use of the crime illegal or arbitrary detention or
arrest because you will not find in here kidnapping.
What is the difference between kidnapping and illegal
detention? Kidnapping is analogous to that of arbitrary or
illegal detention.
Libel
Relevant Provisions
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.
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.
Dean: When does libel arise?
You can in fact ask for moral damages in favor of a
corporation. This is because libel can be committed against
natural or juridical person and libel is a ground to ask for
moral damages. If you commit libel against a corporation,
then the corporation surely can ask for moral damages
because libel is a ground to ask for moral damages.
Important wordings in RPC: “public” and “malicious”.
“Public” defined in the case of MVRs publication Inc. v.
Islamic Da’wah Council of the Philippines Inc.:
“The foregoing are in essence the same view scholarly
expressed by Mr. Justice Reynato S. Puno in the course of
the deliberations in this case. We extensively reproduce
hereunder his comprehensive and penetrating discussion on
group libel -
Defamation is made up of the twin torts of libel and slander
the one being, in general, written, while the other in general
is oral. In either form, defamation is an invasion of the
interest in reputation and good name. This is a relational
interest since it involves the opinion others in the
community may have, or tend to have of the plaintiff.
The law of defamation protects the interest in reputation the
interest in acquiring, retaining and enjoying ones reputation
TORTS AND DAMAGES | Dean Joan S. Largo | For the exclusive use of EH 404
as good as ones character and conduct warrant. The mere
fact that the plaintiffs feelings and sensibilities have been
offended is not enough to create a cause of action for
defamation. Defamation requires that something be
communicated to a third person that may affect the opinion
others may have of the plaintiff. The unprivileged
communication must be shown of a statement that would
tend to hurt plaintiffs reputation, to impair plaintiffs standing
in the community.
Although the gist of an action for defamation is an injury to
reputation, the focus of a defamation action is upon the
allegedly defamatory statement itself and its predictable
effect upon third persons. A statement is ordinarily
considered defamatory if it tend[s] to expose one to public
hatred, shame, obloquy, contumely, odium, contempt,
ridicule, aversion, ostracism, degradation or disgrace The
Restatementof Torts defines a defamatory statement as one
that tends to so harm the reputation of another as to lower
him in the estimation of the community or to deter third
persons from associating or dealing with him.”
Dean: Relational interest  Reputation (the high regard
that others have of you)
If there’s no one else that has come to know the defamatory
statement, the relational interest is still not affected because
the reputation is not tarnished since others did not hear of it
or learned of it. So if it is just you and Floro, the latter being
the offender in this case, and whatever it is that he might
say may have wounded your feelings but it’s not libel
because what is addressed by libel is relational interest. In
order to make it libel, and so it will affect the reputation (the
high regard that others have of you), somebody else must
have heard it or have known of it.
You don’t have a threshold of 10 or 20, for as long as
others, come into the picture, affect the reputation or the
relational interest, will trigger the application of our laws in
libel.
Then the SC said, “it must be public, but it must also be a
malicious imputation.”
But, if you look at Art 354 (RPC), it says: every defamatory
utterance is presumed to be malicious. (malice in law)-
different from mala in se.
By the mere fact that you were able to prove that there was
defamatory imputation, malice is already presumed. So, if
you are the prosecutor handling the case, in order to
establish malice, all you have to establish is the defamatory
utterance.
MALICIOUS PROSECUTION
VAWC Law
Garcia v. CA
The husband assailed the temporary protection order which
later became a Permanent Protection Order because it was
alleged to be violative of the equal protection clause.
SC: VAWC law is constitutional.
Dean: There is a provision that if you prod someone to file a
case because she is a victim of violence coming within the
purview of VAWC, and the violence are extra-ordinarily
broad (emotional, verbal, economic abuse)
VAWC’s protection order may be subject to abuse. A
summary proceeding is conducted by the judge without
much verification of facts or veracity of the pleadings.
Judgment is based on the position papers submitted by the
parties to the court. As has happened, a house may be built
by the sole efforts of the husband but a protection order
may be issued against him prohibiting him from going near
his wife.
Anyone coming to the rescue of a victim of violence, be it
spouse or child, cannot be held civilly, criminally or
administratively liable.
BREACH OF CONTRACT
Moral damages may be asked in cases of breach of contract
but only if the breach was attended with fraud or bad faith.
Common Bar Question:
Can the injured passenger ask for moral damages in a
breach of contract of carriage?
Fraud or bad faith must be alleged first as provided in Article
2220.An allegation of is gross negligence can be interpreted
by the SC as equivalent to bad faith.
Transportation law provides that if the breach of contract of
carriage resulted in death, moral damages are proper. Even
if there is no allegation of tort or bad faith, the fact of death
alone can give rise to moral damages.
BREACH OF PROMISE TO MARRY
General Rule
No damages for such breach. “You cannot force someone to
go through a loveless marriage”
Exception
Seduction – case of Baksh
Actual damages may be awarded as reimbursement for
expenses actually made
ANALOGOUS CASES
1. Kidnapping is analogous with illegal detention
2. Psychological incapacity (as ground for nullity of
marriage) - incurable in nature. It is not the fault of the
psychologically incapacitated party that he is that way. He
cannot be penalized and so award of moral damages is not
proper.
Dean: There was a case where one fell in a manhole and as
a result she was limping. She filed a case and alleged that
her boyfriend left her because of that incident. The SC said
that proximate causation must be established. Still, even if
established, the case (loss of boyfriend according to Dean) is
not one of the analogous cases contemplated by our laws.
TORTS AND DAMAGES | Dean Joan S. Largo | For the exclusive use of EH 404
MORAL DAMAGES FOR CORPORATIONS
General Rule
No moral damages may be awarded because they do not
have a nervous system (ABS CBN v. CA) “The award of
moral damages cannot be granted in favor of a corporation
because, being an artificial person and having existence only
in legal contemplation, it has no feelings, no emotions, no
senses. It cannot, therefore, experience physical suffering
and mental anguish, which can be experienced only by one
having a nervous system.”
Exceptions (limited only to):
a. Libel
b. Defamation
A school filed a case against the students who were trooping
to the school while maligning the latter because of alleged
failing grades given to them just so summer classes can be
held.
SC granted moral damages to the school, a corporation,
because it was in the nature of libel or defamation. Libel is a
ground for granting moral damages.
TN: In the bar, a corporation can only be granted moral
damages in the narrow cases of libel and defamation.
Proof of Moral Damages
If you are claiming for 5 million moral damages, you are not
required to itemize everything but you are asked to prove
that it is a ground listed in the law or is analogous to those
grounds.
The purpose of actual damages is for adequate full
compensation for the monetary loss. In moral damages, the
court gives you an amount to compensate for wounded
feelings, to provide some form of diversion.
Makabali vs Court of Appeals and Baron Travel
Corporation
They were very excited with their very first trip abroad but
the tour company was remiss in fulfilling its obligations.
The Supreme Court granted moral damages and said that
said that “…moral damages are not intended to enrich the
complainant at the expense of a defendant. They are
awarded only to enable the injured parties to obtain means,
diversions or amusements that will serve to alleviate the
moral sufferings the injured parties have undergone by
reason of defendant's culpable action.
In other words, the award of moral damages is aimed at a
restoration within the limits of the possible, of the spiritual
status quo ante; and therefore it must be proportionate to
the suffering inflicted. The amount of P5,000.00 is minimal
compared to the sufferings and embarrassment of
petitioners who left Manila with high spirits and excitement
hoping to enjoy their first trip to a foreign land only to be
met with uncertainties and humiliations.”
TN: Moral damages are not aimed at punishing the
defendants, rather it is for providing diversions.
Nominal damages and actual damages
They cannot exist alongside each other. Nominal damages
preclude any other assessment of damages.
Dean: Whenever there is adjudication of nominal damages,
this will preclude further contest on the rights involved and
other accessory questions.
This is the reason why this cannot co-exist with
compensatory damages. Whenever nominal damages are
adjudicated, this will preclude further contest on the rights
involved and other accessory questions. The other form of
damages that you ask is Liquidated damages.
LIQUIDATED DAMAGES
Relevant provisions
SECTION 4. - Liquidated Damages
Art. 2226. Liquidated damages are those agreed upon by
the parties to a contract, to be paid in case of breach
thereof.
Art. 2227. Liquidated damages, whether intended as an
indemnity or a penalty, shall be equitably reduced if they are
iniquitous or unconscionable.
Art. 2228. When the breach of the contract committed by
the defendant is not the one contemplated by the parties in
agreeing upon the liquidated damages, the law shall
determine the measure of damages, and not the stipulation.
When awarded
Liquidated damages are awarded when agreed upon by the
parties. They are to be paid in case of breach. If it is placed
in the contract that in case of breach, the aggrieved party
will be entitled to liquidated damages, all you have to do is
prove breach. No need to show actual receipts that you have
suffered pecuniary loss.
Example
Simple contract to deliver furnitures to a hotel. The contract
is worth P10M and the liquidated damages is P1M.
Dean: There is one favor you will do yourself and that is
when the contract that you are drafting, you will already put
a provision on liquidated damages.
The only caveat is that it must have to be reasonable. In a
contract for P10M and the liquidated damages is at P8M, the
court may not see that as conscionable. The court has an
inherent power to reduce it.
Liquidated vs Actual damages
They are both meant to address pecuniary loss. In liquidated
damages, there is no need of actual proof of loss. What
needs to be established is the breach of the contract.
TORTS AND DAMAGES | Dean Joan S. Largo | For the exclusive use of EH 404
EXEMPLARY DAMAGES
Relevant provisions
SECTION 5. - Exemplary or Corrective Damages
Art. 2229. Exemplary or corrective damages are imposed,
by way of example or correction for the public good, in
addition to the moral, temperate, liquidated or
compensatory damages.
Art. 2230. In criminal offenses, exemplary damages as a
part of the civil liability may be imposed when the crime was
committed with one or more aggravating circumstances.
Such damages are separate and distinct from fines and shall
be paid to the offended party.
Art. 2231. In quasi-delicts, exemplary damages may be
granted if the defendant acted with gross negligence.
Art. 2232. In contracts and quasi-contracts, the court may
award exemplary damages if the defendant acted in a
wanton, fraudulent, reckless, oppressive, or malevolent
manner.
Art. 2233. Exemplary damages cannot be recovered as a
matter of right; the court will decide whether or not they
should be adjudicated.
Art. 2234. While the amount of the exemplary damages
need not be proved, the plaintiff must show that he is
entitled to moral, temperate or compensatory damages
before the court may consider the question of whether or
not exemplary damages should be awarded. In case
liquidated damages have been agreed upon, although no
proof of loss is necessary in order that such liquidated
damages may be recovered, nevertheless, before the court
may consider the question of granting exemplary in addition
to the liquidated damages, the plaintiff must show that he
would be entitled to moral, temperate or compensatory
damages were it not for the stipulation for liquidated
damages.
Art. 2235. A stipulation whereby exemplary damages are
renounced in advance shall be null and void.
Kinds:
1. By way of punishment–It can be given as punishment
to the defendant.
2. By way of example - For the public good. To provide
the public some form of an example
3. By way of correction - To avenge a right that has been
violated
Purpose
The purpose is to serve as a deterrent for the commission of
similar acts in the future but when it is given as a form pf
punitive damages, it is given as a punishment.
Moral vs Examplary damages
Exemplary damages cannot stand on its own. There has to
be other forms of damages you should be asking the court
before it can be granted.
Recall: Forms of damages that cannot co-exist
1. Actual and nominal
2. Actual and temperate, except when the illness is
chronic and continuing
Exemplary damage cannot stand alone
While the amount need not be proved with exactitude
because this is something which you address to the sound
discretion of the court, Article 2234, NCC, indicates that the
plaintiff must first show entitlement to either compensatory
or moral damages before the court can grant exemplary
damages.
When you are crafting your complaint, even if the client says
that it is not about the money but about vindication, to
teach the public a lesson, to teach the defendant a lesson,
and to set as an example for the common good, you have to
ask the client to couple it with some other reason. For
instance, vindication of some wounded feelings or recovery
of monetary loss.
Important: If you file a case for damages asking only for
exemplary damages alone, it will be dismissed. It is not your
stand-alone damages.
Grant is discretionary to the court
The grant of exemplary damages is subject to the discretion
of the court considering the following factors:
1. Criminal cases – the more aggravating circumstances
are present, the greater the reason of granting it
2. Quasi-delict – when attended with gross negligence
3. Contract and quasi-contracts - defendant acted in
wanton, fradulent, reckless, oppressive or malevolent
manner
These factors must be alleged
If you are asking for exemplary damages, you should allege
these scenarios in your complaint. Example, you have to
allege gross negligence if the complaint is for quasi-delict.
These are the factual foundations for the grant of
exemplary damages.
In the absence of allegations, claim for exemplary damages
should be denied unless you were able to present evidence
on any of the damages in the absence of objections on the
part of the defendant. As a lawyer of the other party, you
should object. You can only present evidence in support of
your allegations. Otherwise, you bring in the provision on
amendment to conform to evidence.
Important: You cannot recover it as a matter of right. It is
always subject to discretion of the court.
Cannot be waived in advance
You cannot have a contract that says parties are waiving
their right to ask for exemplary damages. The law clearly
says “A stipulation whereby exemplary damages are
renounced in advance shall be null and void.”
TORTS AND DAMAGES | Dean Joan S. Largo | For the exclusive use of EH 404

ASSESSMENT OF DAMAGES

Assessment of Damages

You need not even think about this because this is the job
of a judge. Still, if the judge commits an error, you can
assign this as an error on appeal.

Presence of contributory negligence

Relevant provision

Art. 2214. In quasi-delicts, the contributory negligence of

the plaintiff shall reduce the damages that he may recover.

The judge should reduce damages if there is an allegation

or proof of contributory negligence. The plaintiff is not
entitled to the full damages awarded. Whenever you put up
the defense of contributory negligence, the battle is half
won. Thus, the court will have to grant damages, but it will
have to reduce it.

Allegations that are found in the answer are in the nature of

judicial admissions. In evidence, there is no need to show
proof, otherwise, you will open it to cross-examination. It is
evidence of the highest order.

You can extract yourself from a damaging judicial admission

by making an equally damaging assertion of fraud, palpable
mistake and negligence. However, it is really hard.

Important: The court is mandated to grant damages,

except that it has to reduce it.

Doctrine of avoidance of loss/Doctrine of avoidable

consequences
The party suffering the loss must nonetheless exercise
diligence to minimize the damage. There was already
damage but it does not mean that you must not exert effort
to minimize the loss.

In contributory negligence, the negligence was concurring

at the time of the accident. Under this doctrine of avoidable
consequences, the negligence of the plaintiff came after he
suffered the loss.

Example
A new car was hit in the bumper. You should not just
expose it to elements and leave it as it is. Otherwise, the
court will be constrained to mitigate/minimize the damages
to be awarded.

Civil indemnity for death

Supreme Court came up with a guideline on how to assess
civil indemnity for the fact of death for moral and exemplary
damages.

PP v. Bubueta, En banc (April 5, 2016)

Civil indemnity is now raised to P75, 000. The Supreme

Court had the occasion to reexamine the jurisprudence
regarding the system of awarding damages, but the amount
is still small. The lesser the amount of damages, how is that
a deterrent on the part of the other party? There will be no
stop to the horror stories of bus drivers killing instead the
victims they just ran over.