9 October 2009
11:30-2:30 P.M.
Sta. Ana Room
2003 Bar, Question 17
As a result of a collision between a taxicab owned by A
and another taxicab owned by B, X, passenger of the
first taxicab was seriously injured. X later filed a
criminal complaint against both drivers. Is it necessary
for X to reserve the right to institute a civil action for
damages against both taxicab owners before he can file
a civil action for damages against them? Why?
Answer:
As a rule, reservation is not necessary save for civil action to
recover damages arising from the criminal act. If the civil
action contemplated is based on contract (culpa
contractual) or on quasi-delict, there is no need for
reservation. [Under Section 1 of Rule 111, what is deemed
impliedly instituted with the criminal action is only the
action to recover civil liability arising from crime (ex
delicto). All other civil actions under Articles 32, 33, 34 and
2176 of the Civil Code are no longer deemed instituted, and
may be filed separately, and prosecuted independently
without any reservation in the criminal action.
1976 Bar, Question 1
During a brawl in a basketball game, A attacks B with a
bottle and causes physical injuries. If B files a civil case
against A for damages and during its pendency a
criminal case is filed against A, should the civil case be
suspended meanwhile? Explain.
Answer:
No, it should not be suspended. The applicable rule
states that the civil action for damages arising from
physical injuries is an independent civil action. As an
independent civil action, it is separate and distinct
from the criminal action. In this case, since B filed a
civil case against A for damages for the physical
injuries sustained, he has a cause of action which is
independent in nature.
1976 Bar, Question 1b
If a criminal case is filed first, may the civil case be
filed during the pendency of the criminal case or later,
even without reservation?
What do you think? In responding to this
question, do you still need to emphasize the
substantive character or nature of right provided
under Article 33? Why or why not? What if the
criminal case is no longer pending?
In the same 1976 Bar, the examiner asks a subsequent
question –
“Does Article 33 of the Civil Code on separate civil
action for damages arising from injuries require that
there be a reservation in the criminal case to file a
separate civil action? Explain.”
 Why a Title on Damages? Is this entirely
new?
Injury is the illegal
invasion o f a legal right.
 What is meant by damages? We know
that the term is not interchangeable with
damage? (Custodio v. CA)
Damage is the loss, hurt or
harm which results from
the injury.
 Are damages pecuniary in nature?
(People v. Ballesteros)
 What are the kinds of recoverable
Damages are the
recompense or
compensation awarded for
the damage suffered.
damages?
 Is it possible for damages to be awarded
outside of the Civil Code?
There can be damage
without injury; the loss or
harm was not the result of
violation of legal duty.
 General principles
 How (what) to allege
 How to prove (what needs proof)
In a recent mishap, which some of you picked up for your
submission of newspaper articles, bus driver A hit a young
mother and her 3-year old child as they were crossing
EDSA. They were about to step on to the curb at the Crame
side, when they were hit by the bus. The child died and the
young mother lost her arm. Let us say that the young
mother files a civil suit against the driver and/or the bus
company. She claims actual or compensatory damages.
How should her lawyer plead this claim? On the radio the
other day, a reporter mentioned having spoken to the
driver who was asked if he wished to apologize to the
bereaved mother. He replied, “[E], hindi ko naman po
talaga nakita, bakit ako magso-sorry.” Should his lack of
remorse be taken into consideration in determining the
amount of actual or compensatory damages to be awarded?
 What is the purpose of awarding actual or
compensatory damages?
 Having said that, is it possible then to include a claim
for profits which are yet to be earned?
ACTUAL DAMAGES
Plaintiff
Defendant
Compensate
(Not) Punish
Based on loss (generally(
(Not on) Gain
Kinds –
Dano emergente
b. Lucrum cessans
c. General damages
d. Special damages
a.
 Extent
 Governed by Articles 2201 and 2202
 Proof
 Must be certain (reasonable certainty, not absolute or
mathematically certain)
 Amount
 Property
 Person (Injury or Death)
 For injury – medical and reasonable related expenses, loss of
earning capacity
 Death
1.
2.
3.
4.
5.
Funeral Expenses (does this include 9th day, 40th day?)
Compensatory (indemnification) now pegged at
P50,000
Loss of earning capacity
Support
Moral damages
 G.A. Machineries v. Yaptinchay
 What may be presented –
1. Document or written instrument to support claim ( to
show orders really made and indicate volume)
2. Average actual profits realized in previous years (instead of
baseless projections)
3. Average actual profits at industry level or comparable
business – but must be actual income to help court arrive at
amount of actual damages with reasonable certainty (see
Seavan Carrier, Inc. v. GTI Sportswear)
A.
Loss of Earning Capacity
Net Earning Capacity = Life Expectancy x [Gross Income Less Living Expenses]
B.
Formula for Life Expectancy
Villa Rey
J. Feliciano
>
>
2/3 x [80-age at death]
Σ (Lx+1, Lx+2, …Lx+n), where
n = 100-x
x = age upon death
L = number of people surviving after
number of years
1.
There must be injury
whether physical,
mental or
psychological, clearly
Moral Damages
sustained by the
claimant.
 Are moral damages entirely new in the
2.
present Civil Code?
 What are the elements of moral
damages?
3.
 Does Article 2219 provide an exclusive
and exhaustive listing of cases which may
form basis of claim for moral damages?
4.
There must be culpable
act or omission factual
established.
The wrongful act or
omission of the
defendant is proximate
cause of the injury
sustained by the
claimaint.
Award of damages
predicated on any of
cases under Article 2219.
 Tropical Palace Hotel for a Reycard Duet Show in 1976. What
went wrong? Tray of drinks overturned and fell on Mrs. Sena,
drenching her, compelling her to remove her clothes in the
ladies room without being given a towel.
 Mrs. Sena sued Bagumbayan Corp. as employer of waiter for
quasi-delict, asking for actual damages, attorney’s fees, and
moral and exemplary damages as may be awarded by court. She
testified, however, claiming P100,000 in moral damages for
herself and her husband due to embarrassment suffered and lack
of apology from management. She asked for exemplary damages
to teach management a lesson. Are moral and exemplary
damages recoverable here? SC said instant case not specifically
mentioned in Article 2219. Is SC correct? How about the
reference to “analogous cases.” How about “mental anguish”?
“Emotional distress”? Mrs. Sena did testify to the
“embarrassment” she suffered. What do you think?
2006 Bar, Question 16
Under Article 2219 of the Civil Code, moral damages may
be recovered in the cases specified therein, several of which
are enumerated below. Choose the case wherein you cannot
recover moral damages. Explain.
a. A criminal offense resulting in physical injuries
b. Quasi-delicts causing physical injuries
c. Immorality or dishonesty
d. Illegal search
e. Malicious prosecution
Answer:
Moral damages may not be recovered in (c) for
immorality or dishonesty as these grounds are not
included in the enumeration in Article 2219 of the
Civil Code.
[Another answer that ought to be given full credit
is that moral damages may be recovered in ALL
instances enumerated in the problem. Why?]
2002 Bar, Question 16
Ortillo contracts Fabricato, Inc. to supply and install materials in a
building he is donating to his province. Ortillo pays 50% of the contract
price as per agreement. It is also agreed that the balance would be
payable periodically after every 10% performance until completed. After
performing about 93% of the contract, for which it has been paid an
additional 40% as per agreement, Fabricato, Inc. did not complete the
project due to its sudden cessation of operations. Instead, Fabricato,
Inc. demanded payment of the last 10% of the contract despite its noncompletion of the project. Ortillo refuses to pay, invoking the
stipulation that payment of the last amount of 10% shall be upon
completion. Fabricato brings suit for the entire 10%, plus damages.
Ortillo counters with claims for (a) moral damages for Fabricato’s
unfounded suit which has damages his reputation as a philanthropist
and respected businessman in his community, and (b) attorney’s fees.
a. Does Ortillo have a legal basis for his claim for moral damages?
b. How about his claim for attorney’s fees, having hired a lawyer to
defend him?
Answer:
A. There is no legal basis for Ortillo’s claim for moral
damages. It does not fall under the coverage of
Article 2219 of the Civil Code.
B. Ortillo is entitled to attorney’s fees because
Fabricato’s complaint is a case of malicious
prosecution, or a clearly unfounded civil action.
Do you agree?
 May a corporation be awarded moral damages?
 A juridical person is generally not entitled to moral
damages because unlike a natural person, it cannot
experience physical suffering or such sentiments as
wounded feelings, serious anxiety, mental anguish or
moral shock.
 How about for besmirched reputation? Recall the
Tribune raid? Could the Tribune in a related suit ask for
moral damages?
True or False –
1.
Nominal damages are awarded to indemnify plaintiff
for a loss which eludes pecuniary estimation.
2.
Nominal damages can be awarded only for violation
of Article 32 of the Civil Code, and not for any
obligation regardless of source.
3.
Nominal damages may be awarded along with moral
and exemplary damages.
 Injury + Damage > Sufficient for award?
 What if Injury + Damage + Claim for Actual Damages,
but no proof presented on extent/amount of actual
damages? (This is what happened in Robes-Francisco
v. CFI.)

What happens when the dream three-layered wedding cake
arrives at 10:00 p.m. for a 6:00 p.m. reception (and with one
layer missing)?
 RTC-Cebu City said Francisco must pay cost of wedding cake,
moral damages (P30,000) and attorney’s fees (P10,000).
 The CA increased the award of moral damages and awarded
exemplary damages.
 Supreme Court moral and exemplary damages not warranted.
Why not? Francisco lied about delay in delivery (citing traffic)
and later admitted that the order slip got lost.
 SC awarded nominal damages – for the prevarication,
insensitivity, inadvertence or inattention to customer’s anxiety.
 In MCC v. Ssangyong, the SC said that courts cannot rely upon
speculation, conjecture or guesswork as to the fact and amount
of damages (US$93,493.87), but must depend on competent
proof that the claimant suffered, and one evidence of actual
amount thereof. What made SC say this? What proof of actual
damages presented and why were these found to be inadequate?
 SC went on to award nominal damages (P200,000.00), for petitioner
had knowingly breached its contractual obligation and obstinately
refused to pay despite repeated demands – inattention and
insensitivity.
 “Nominal damages are recoverable where a legal right is technically
violated and must be vindicated against such invasion that has
produced no actual present loss of any kind or where there has been
a breach of contract and no substantial injury or actual damages
whatsoever have been or can be shown.”
2005 Bar, Question 16
Dr. and Mrs. Almeda are prominent citizens of the country and
are frequent travelers abroad. In 1996, they booked round-trip
business class tickets for the Manila-Hongkong-Manila route of
the Pinoy Airlines, where they are holders of Gold Mabalos Class
Frequent Flier cards. On their return flight, Pinoy Airlines
upgraded their tickets to first class without their consent and, in
spite of their protestations to be allowed to remain in the business
class so that they could be with their friends, they were told that
the business class was already fully booked, and that they were
given priority in upgrading because they are elite members of the
frequent flier card. Since they were embarrassed at the discussions
with the flight attendants, they were forced to take the flight at
the first class section apart from their friends. Upon their return
to Manila, they demanded a written apology from Pinoy Airlines.
When their demand went unheeded, the couple sued Pinoy
Airlines for breach of contract claiming moral and exemplary
damages as well as attorney’s fees. Will the action prosper?
Answer:
Yes, the action will prosper but only to the extent of
obtaining ___________ damages.
The Spouses Almeda are not entitled to moral and
exemplary damages. Moral damages predicated upon a
breach of contract of carriage may only be recoverable in
instances where the carrier is guilty of fraud or bad faith, or
where the mishap resulted in the death of a passenger.
Where breach of contract of carriage is not attended by
fraud or bad faith, liability for damages is limited to the
natural and probable consequences of the breach of
obligation which the parties had foreseen or could have
reasonably foreseen. In such a case the liability does not
include moral and exemplary damages. [Continued….]
Moreover, it is requisite in the grant of exemplary
damages that the act of the offender be accompanied
by bad faith or done in wanton, fraudulent or
malevolent manner. Such requisite is absent in this
case. To be entitled to exemplary damages, the
claimant must first establish his right to moral,
temperate or compensatory damages. Since the
Almedas are not entitled to any of these damages, the
award for exemplary damages has no legal basis.
Where moral and exemplary damages are deleted, so
must award for attorney’s fees.
If the Spouses Almeda are said to have been
disturbed in their desire to be with their friends
in Business Class, are they entitled to some form
of damages?
 Nominal < Temperate < Compensatory
 Reasonable under the circumstances
 Loss established, but definite proof of pecuniary loss
cannot be offered
 “Contracted damages”
 Why would you suggest to contracting parties to
stipulate on liquidated damages?
 If there is a breach of contract triggering the LD
stipulation, does this mean that the injured party no
longer needs to prove breach? What does LD dispense
with?
 What kind of LD stipulation then do you think is
effective? Fixed amount? Capped amount? LD only for
certain type of breach ? LD on for certain type of
injury?
1.
May be imposed by way of
example in addition to
compensatory damages, and
only after claimant’s right to
them has been established.
2.
Cannot be recovered as a
matter of right;
determination is dependent
on amount of compensatory
damages awarded to
claimant.
3.
Act must be accompanied by
bad faith or done in wanton,
fraudulent, oppressive or
malevolent manner.
Exemplary Damages
 Other terms – “corrective,”




“punitive,” “vindictive”
May this be awarded even if not
alleged? Not included as one of the
reliefs (under the prayer)?
What is parties provided for LD,
would this preclude claim for
exemplary damages?
How is this commonly pleaded?
What is the focal point of proof?
(one or more aggravating
circumstances; gross
negligence)