Awarding temperate damages in lieu of actual damages

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Persida Acosta

Dear PAO,
My brother was a passenger in a bus going to our province when an accident happened. He lost his limbs. He can no longer work and, recently, the company he worked with was bombed and lost its files. My question is, since we cannot produce copies of the documents that will show his pay from his work, because of what happened to their firm recently, may we still be able to get damages for his loss of earning capacity?

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Sincerely yours,
Eulogio

Dear Eulogio,
Considering your concerns, the case of Spouses Estrada vs. Philippine Rabbit, et al. (G.R. No. 203902, July 19, 2017), penned by Associate Justice Mariano del Castillo, may aid you in your predicament. It stated:

“Temperate damages in lieu of actual damages for loss of earning capacity may be awarded where earning capacity is plainly established but no evidence was presented to support the allegation of the injured party’s actual income.”

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“Since it was established that Dionisio lost his right arm, temperate damages in lieu of actual damages for loss/impairment of earning capacity may be awarded in his favor. Under Article 2224, “[t]emperate 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.”

The case of Tan v. OMC Carriers, Inc. enumerates several instances wherein the court awarded temperate damages in lieu of actual damages for loss of earning capacity, viz:

In the past, we awarded temperate damages in lieu of actual damages for loss of earning capacity where earning capacity is plainly established but no evidence was presented to support the allegation of the injured party’s actual income.

In Pleno v. Court of Appeals, we sustained the award of temperate damages in the amount of P200,000.00 instead of actual damages for loss of earning capacity because the plaintiffs income was not sufficiently proven.

We did the same in People v. Singh, and People v. Almedilla, granting temperate damages in place of actual damages for the failure of the prosecution to present sufficient evidence of the deceased’s income.

Similarly, in Victory Liner Inc. v. Gammad, we deleted the award of damages for loss of earning capacity for lack of evidentiary basis of the actual extent of the loss. Nevertheless, because the income-earning capacity lost was clearly established, we awarded the heirs PS00,000.00 as temperate damages.

Accordingly, the court in Tan awarded to the heirs of the therein deceased victim, who was working as a tailor at the time of his death, temperate damages in the amount of P300,000.00 in lieu of compensatory damages.” (Emphasis supplied)

Undoubtedly, if you are able to prove in court that some pecuniary loss is suffered by your brother because of the injury he sustained in the mishap, and that the common carrier acted negligently or is adjudged to be liable under the circumstances, your brother may still be awarded some temperate or moderate damages in lieu of actual damages by the court, if he is unable to prove or support the allegation for the latter, for as long as the finding of loss is clear and unavoidable.

Again, we find it necessary to mention that this opinion is solely based on the facts you have narrated and our appreciation of the same. The opinion may vary when the facts are changed or elaborated.

We hope that we were able to enlighten you on the matter.

Editor’s note: Dear PAO is a daily column of the Public Attorney’s Office. Questions for Chief Acosta may be sent to dearpao@manilatimes.net.

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