Torts Transcription For Finals

TORTS TRANSCRIPTION for finals RM403
NOTES from ate rhen of September 2, 2010:
Vicarious Liability of Teachers

1. Legal Basis
ART. 2180:
XXXXX
TEACHERS OR HEADS OF ESTABLISHMENTS OF ARTS AND TRADES SHALL BE LIABLE FOR
DAMAGES CAUSED BY THEIR PUPILS AND STUDENTS OR APPRENTICES SO LONG AS THEY
RETAIN IN THEIR CUSTODY.
XXXXX
When will the obligations of teachers arise?
Illustration:
Atty. Largo dismissed the class early. The student while waiting for his ride home was hit by a blunt
object in the head. Is Atty. Largo liable?
To determine whether or not the teacher is liable:
1. First, ask who caused the injury.
The law provides that: Teachers or heads of establishments of arts and trades shall be liable for
damages caused by their pupils and students or apprentices.
2. Second, was the student under the custody of the teacher?
The law provides that: Teachers or heads of establishments of arts and trades shall be liable for
damages.. so long as they retain in their custody.
When the damage was caused by someone not his or her student, you cannot hold the teacher
liable.
The law says that the damage must be caused BY their pupils and students or apprentices and not
WHO. Necessary because the basis of the liability is the supervisory control that he has over the
students. He stands in loco parentis. And the student must be in the custody of the teacher.
When does he remain in the custody of the teacher?
Illustration:
If Atty. Largo dismissed the students earlier because she has a meeting at 8:00 pm and an injury was
caused by one of her students. Is Atty. Largo no longer liable because she already dismissed the class?
When can it be said that the student was in the custody of the teacher?
AMADORA DOCTRINE:
The phrase used in the cited article "so long as (the students) remain in their custody"
means the protective and supervisory custody that the school and its heads and teachers exercise
over the pupils and students for as long as they are at attendance in the school , including recess
time. There is nothing in the law that requires that for such liability to attach, the pupil or student who
commits the tortious act must live and board in the school, as erroneously held by the lower court, and

the dicta in Mercado (as well as in Exconde) on which it relied, must now be deemed to have been set
aside
2 by the present decision.
How do you define recess time?
A "recess," as the concept is embraced in the phrase "at attendance in the school," contemplates a
situation of temporary adjournment of school activities where the student still remains within call of his
mentor and is not permitted to leave the school premises, or the area within which the school activity
is conducted. Recess by its nature does not include dismissal. Likewise, the mere fact of being
enrolled or being in the premises of a school without more does not constitute "attending school" or
being in the "protective and supervisory custody' of the school, as contemplated in the law. (Salvosa
Case)
Test:
As long as it can be shown that the student is in the school premises in pursuance of a legitimate
student objective, in the exercise of a legitimate student right, and even in the enjoyment of a
legitimate student right, and even in the enjoyment of a legitimate student privilege, the
responsibility of the school authorities over the student continues. Indeed, even if the student
should be doing nothing more than relaxing in the campus in the company of his classmates and
friends and enjoying the ambience and atmosphere of the school, he is still within the custody and
subject to the discipline of the school authorities under the provisions of Article 2180.
When a school may be held liable.
Where the school is academic rather than technical or vocational in nature, responsibility for the tort
committed by the student will attach to the teacher in charge of such student, following the first part
of the provision. This is the general rule. In the case of establishments of arts and trades, it is the head
thereof, and only he, who shall be held liable as an exception to the general rule. In other words,
teachers in general shall be liable for the acts of their students except where the school is technical in
nature, in which case it is the head thereof who shall be answerable. Following the canon of reddendo
singula singulis "teachers" should apply to the words "pupils and students" and "heads of
establishments of arts and trades" to the word "apprentices."
Who is a teacher in-charge?
The teacher-in-charge is the one designated by the dean, principal, or other administrative superior to
exercise supervision over the pupils in the specific classes or sections to which they are assigned. It is
not necessary that at the time of the injury, the teacher be physically present and in a position to
prevent it. Custody does not connote immediate and actual physical control but refers more to the
influence exerted on the child and the discipline instilled in him as a result of such influence. Thus, for
the injuries caused by the student, the teacher and not the parent shag be held responsible if the tort
was committed within the premises of the school at any time when its authority could be validly
exercised over him.
Defenses that the teacher may raise
Diligence of a bonus paterfamilias. As long as the defendant can show that he had taken the necessary
precautions to prevent the injury complained of, he can exonerate himself from the liability imposed by
Article 2180, which also states that:
The responsibility treated of in this article shall cease when the Persons herein mentioned prove that
they observed all the diligence of a good father of a family to prevent damages.

Will the age of the student matter in holding the teacher in charge, school or its
administrators
liable?
3
Art. 218 of the Family Code
Art. 2180 of the Civil Code
1. The school,
2. its administration, and
3. teachers, or
4. the individual or entity or institution engaged in child
care
Shall have special parental authority and responsibility
over the minor child while under their supervision,
instruction or custody.
Teacher is held answerable by the law for the act of the

student under him regardless of the student's age.
TRANSCRIPTION STARTS HERE = September 2, 2010; //princessmillan & vanessaniemes

Liability in torts and damages
Teachers:
Why teachers are held liable?
Basis of their liability?
when will the obligation of teachers arise?
Art.2180: the obligation imposed by Article 2176 is demandable not only for ones own act or
omissions, but also for those of persons for whom on is responsible.
Lastly, teachers or heads of establishment of arts and trades shall be liable for damages
caused by their pupils and students or apprentices, so long as they remain in custody.
For example: we continue to have brownouts, class dismiss early, as a result as u were waiting outside
some blunt object hit X, my student by some unknown person who just come out from kwerks
restaurant. Do you think I will be held liable?
2 reasons here: why teachers should be not be held liable.
The incident happen outside the school, not within the premises and after class hours.
The one who caused the injury is not a student.

Can we combine them can we have a third reason? Which requires us to have a look at the
basis of teachers liability.
The basis of teachers liability is found in the 2nd to the last paragraph of Art. 2180
Lastly, teachers or heads of establishment of arts and trades shall be liable for damages
caused by their pupils and students or apprentices, so long as they remain in custody.
To be able to hold the teacher liable therefore, first question that should be asked is who caused the
injury?
If it caused by someone not his student, the teacher must not be held liable even if the one
injured is his student because the liability arises for damages caused BY not caused TO the
student. In the situation above I could not be held liable because the one who caused the
injury was not my student.
The first pre-condition there is that the damages must be caused by a student. Necessarily because
the basis of the liability is the supervisory control over the student or that he stands in locu parentis.
And the student must have to be in the custody of the teacher.
When does the student remain in the custody of the teacher?
When can it be said that the student remain in the custody?
Case: Amadora (cebu; usjr)

Is the teacher not held liable simply because there was no class held anymore?
Facts: the students went to school to submit a physics project three days before the
graduation, and he was shot by a classmate and the student died. Case was filed against the
school, the rector, the class adviser. What was the basis for holding the adviser liable? Why
does the parent filed a case against the principal? No classes were held at this time. He was
there to submit a project. The teacher in charge was not present at the school at that time.
What does remaining in the schools custody mean? When can we say that the student
remains in the custody? Necessary that classes is held?
HELD:
The test to make the teacher liable, is that it is not even necessary to hold classes, or
that the student be in his class to hold him liable, its enough that during that time the teacher
has control over the student and the student is in the premises in order to pursue a legitimate
student objective, or even if he is only in the school enjoying some legitimate student right, or
legitimate student privilege the responsibility of the school authorities continues, an example
then of a legitimate student privilege being enjoy by a student is when he is in the campus
relaxing and enjoying the company of classmates and enjoying the ambience and the
atmosphere of the school then we can still say is that he remain in the custody.
The only question is who has custody of the student at that time or what is the reason he was
there. So long as the student is there to pursue a legitimate student right or objective, the
teacher for that particular period may be held vicariously liable.
RECESS?
Does the student remain in the custody during recess?
Whats the test for it to be called a recess?
The test is not necessarily the length of time though it could be an indicator. The test is
whether the student canWhat happens in the case of Salvosa?
FACTS: this case happen in a school in Baguio.
HELD:
During recess the SC held that the student is still to remain in the custody of the
school, what is the test?. The test is whether really the student is free to leave the premises, it
has been held by the SC that it should be distinguished from dismissal, for recess is a
temporary break where the student is not free to whatever he or she wishes. If its recess, he
still remains in the custody of the teacher with more reason if he stays in the school premises.
So in the case of Amadora, because it happens in the school premises and the student was
there to pursue legitimate student objective as he was there to pass a project. So is the
teacher held liable? The teacher in the case of Amadora was not held liable.
In the case of Amadora, the (Physics) teacher was not held liable.
the test is not whether there are classes that are ongoing
SC says you remain to be in the custody for as long as you are in the school to enjoy student objective,
student right, student privilege, including enjoying the ambiance of the school
we said that you remain in the custody if you are in school pursuing a legitimate student
objective

REASON:
SC ruled that the teacher still had exercised due diligence even if he was not there.
5
What is the fact there that brought out to the court that made SC declare that the teacher cannot be
held liable even if the teacher was not there?
SC also sees that he was exercising due diligence (in that)
The teacher can be held liable if the one who committed the act/omission is a student who remained to
be in his custody BUT the defense of the teacher there was that he exercised due diligence in the
supervision of his student
How would you negate liability given that it was already established that the act/omission was caused
by your student who remained to be in your custody even if you were not there because the student
was there pursuing legitimate student objective? How? What defense will you be putting up? The kind
of the defense that really exonerates?
The defense that you can set up is that you exercised due diligence
But how do you show due diligence as a teacher?
by showing that you have been supervising your students while they were still in your custody. (by
showing the facts that will prove that, thats how you show due diligence)
And how do you show supervision?
Its not just a matter of obeying rules and regulations, you show supervision if you have not been
remised in maintaining discipline
Would it matter if the one who committed the crime is a 23-year- old law student? Would the scenario
be different as this one is committed by a 17-year-old student? Would the facts change? Would the
ruling change? Would the scenario be changed if this is committed by one who is 23?
Teacher will still be held liable because if you look at Art. 2180 (NCC) there is no qualification as to age.
(unfortunately!)
What about school administrators? Is there also basis to hold them liable?
Yes. If the institution is a vocational school
As a matter of law if the school is not a vocational school, can you hold the school administrators
liable? Yes.
When?
When they did not exercise due diligence for acts/omissions committed by students
Would age matter? Would it matter if the student who committed the acts/omission is a minor or not?
Yes. We look at Art. 218 of the Family Code as the basis of holding school administrators liable
Art. 218 of the Family Code says, the school, as well as the administratorsand teachers, they will still
be held liable for acts/omissions of MINOR child
So if the act/omission is committed by a minor child, you also hold the school, the administrators and
the teachers liable.
But if the act/omission is committed by one who is NOT a minor? There will be no more liability?
Apply Art. 2180. The teacher will be liable.
Note that Art.218 of the Family Code also says, the liability also extends to any and all activities
committed and authorized by the school, its administrators and teachers, including fieldtrips outside
the premises of the school.

So if the acts/omission is committed by a student, who is a minor, three persons may be held liable on
the6basis of Art. 281 of the Family Code:
School
Teachers
Administrators
But if the act is committed by one who is not anymore a minor, your legal basis there is just Art. 2180
that limits the liability to teachers
Remember that the Defense is due diligence
and due diligence was best exemplified in the case of Amadora vs. CA
SEPTEMBER 8 2010; //jonsingco
Largo: When will the liabilities of Cities, Municipalities and provinces arise?
A:When it comes to streets, roads or public building under their control and supervision
(Q: which requires ownership? In the case of Guilatco vs. City of Dagupan?)
Largo: no reading, facts of the case please
Largo: extent of the injury here. Is it all about injury? No loss of earnings for example?
A: she wasnt able to work for 20 days.
Largo: who was held Liable?
A: the city of dagupan was held liable, even if they dont own the road where the accident happen
because ownership is not necessary so long as they have they have control and supervision over the
road
Largo: so you mean to say Local Government can still be held liable even if the incident happens in a
national highway? ; whats the reckoning point for liability?
A: control and supervision over the road
Largo: why cant you sue the local government, I thought states cannot be sued.
A: since Art. 2189 NCC expressly states the liability of the LGU:
Art. 2189. Provinces, cities and municipalities shall be liable for damages
for the death of, or injuries suffered by, any person by reason of the
defective condition of roads, streets, bridges, public buildings, and other
public works under their control or supervision. (n)
Largo: supposing you dont have Art. 2189 fixing liability of LGU can you still sue? If there is no law are
they still liable? A: yes?
Largo: basis?
(another person called)
Largo: is it possible for us to recite without looking at your notes? In as much as you answer your
exams without looking at your notes?

Largo: without Art. 2189 you can still sue the LGU on the basis of another law Sec. 24 of the LG
code
7 on the liability, but on the question of can it be sued or not be sued? For example they cant
maintain the roads?
SEC. 24. Liability for Damages. - Local government units and their officials are
not exempt from liability for death or injury to persons or damage to
property.
-If it acts through unincorporated agencies like DPWH?
As supposed to LGUs? they are instrumentalities (to determine suability) do you look at the function?
A: you look at the Charter as to suability, because once it has charter it has a separate juridical
personality, it can be sued.
As to liability? Art. 2189 and sec. 24 of LG code
Strict liability torts:
Largo: What sets this classification different from quasi-delict we have studied in the past?
A: In quasi-delict liability is based on negligence, in strict liability, negligence is not necessary present
and is held liable
Largo: what is the basis? Whats the justification, how can they impose liability to one who is not even
negligent?
A: for the protection of the public
Largo: where does public policy come in? how can it justify to one who is not even negligent?
A: reasoning in the case in Vestil vs. CA (one who has possession of animals) one held liabile
notwithstanding he is not negligent.
Largo: why do you think its allowed in certain few instances to impose liability to one who is not even
negligent.
Largo: two grounds 1. Natural equity and 2. Principle of social interest
Largo: where does social interest come in? in relation to strict liability torts?
Largo: never mind that the owner is not negligent, who do you hold liable liable?
A: upon him who derives some pleasure, utility or service in the interest of also distributing the risk or
loss, it may be best to hold liable someone who derives some pleasure, utility or service rather than
the person who was injured not compensated at all. As it is the possessor of animal is liable regardless
if he is the owner or not.
Largo: Ownership is not a defense. Fact of not being the owner is not the defense, the fact that you
possess the animal then liability attaches? No defense?
A: the defense that the plaintiffs own negligence caused the injury or also force meajure (but plaintiffs
own negligence better option) same with manufacturers and processors of food stuffs.
Largo: when is the head of the family is held liable?

A: if that person living in the building throws something outside and causes damage. Things thrown or
falling
8 from the building.
Largo: what if that person is not the owner?
A: ownership does not matter in this Spanish decision, even if he be the lessee of the building this
liability may still attach.
Special torts
How does this differ from strict liability torts? Largo: difference?
Largo: in the case of Quezon City Government vs. Dacara ; special torts refer to those you can find in
Articles : 20, 21, 28, 29, 30, 32, 34, 35 and Art. 309
Art. 20. Every person who, contrary to law, wilfully or negligently causes damage to
another, shall indemnify the latter for the same.
Art. 21. Any person who wilfully causes loss or injury to another in a manner that is
contrary to morals, good customs or public policy shall compensate the latter for the
damage.
Art. 28. Unfair competition in agricultural, commercial or industrial enterprises or in labor
through the use of force, intimidation, deceit, machination or any other unjust, oppressive
or highhanded method shall give rise to a right of action by the person who thereby suffers
damage.
Art. 29. When the accused in a criminal prosecution is acquitted on the ground that his
guilt has not been proved beyond reasonable doubt, a civil action for damages for the
same act or omission may be instituted. Such action requires only a preponderance of
evidence. Upon motion of the defendant, the court may require the plaintiff to file a bond
to answer for damages in case the complaint should be found to be malicious.
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;
9
(10) The liberty of abode and of changing the same;
(11) The privacy of communication and correspondence;
(12) The right to become a member of associations or societies for purposes not contrary
to law;
(13) The right to take part in a peaceable assembly to petition the government for redress
of grievances;
(14) The right to be free from involuntary servitude in any form;
(15) The right of the accused against excessive bail;
(16) The right of the accused to be heard by himself and counsel, to be informed of the
nature and cause of the accusation against him, to have a speedy and public trial, to meet
the witnesses face to face, and to have compulsory process to secure the attendance of
witness in his behalf;
(17) Freedom from being compelled to be a witness against one's self, or from being
forced to confess guilt, or from being induced by a promise of immunity or reward to make
such confession, except when the person confessing becomes a State witness;
(18) Freedom from excessive fines, or cruel and unusual punishment, unless the same is
imposed or inflicted in accordance with a statute which has not been judicially declared
unconstitutional; and
(19) Freedom of access to the courts.
In any of the cases referred to in this article, whether or not the defendant's act or
omission constitutes a criminal offense, the aggrieved party has a right to commence an
entirely separate and distinct civil action for damages, and for other relief. Such civil
action shall proceed independently of any criminal prosecution (if the latter be instituted),
and mat be proved by a preponderance of evidence.
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.
10
If during the pendency of the civil action, an information should be presented by the
prosecuting attorney, the civil action shall be suspended until the termination of the
criminal proceedings.
Art. 309. Any person who shows disrespect to the dead, or wrongfully interferes with a
funeral shall be liable to the family of the deceased for damages, material and moral.
Largo: cases in special torts common element is the presence of malice or bad faith (ill will)
Largo: when can you say there is malice?
1. Abuse of right when a right causes damage to another, thats the kind of special torts referred by
law. (right to sue) the exercise of ones right to sue should not be visited with consequences so severe
then you should not be held liable.
A: malice or ill will or bad faith is present when the act is done intentionally to cause prejudice to
another party.
Largo: bad faith presupposes intent, no way you can hold person liable for abuse of right on the
grounds on being negligent. Because there should be intent there (bad faith and negligence does not
go hand in hand)?
A: it depends on the type of negligence. If simple negligence, no bad faith, if gross negligence malice
or bad faith may be present (leal good anwer ^^)
Largo: how does this distinguish from Art. 21 and abuse of right or art 20 or 19? Backsh case.
Largo: when is it 21 or when is it 20 or 19?
Art. 21- When there is a violation of some costums or morals which makes our provisions on our
system of reparation in the Philippines, as compared to the law on torts in the US. It is broader, it
need not anchor on some negligence or criminal acts because it can cover even moral wrong.
Case MVRS vs. Islamic Dawah group of muslim believers, who filed a case against a publication
because it published what they considered derogaratory remarks Gabuya, diba youve interned with
OSG you go read for the class RYAN reads in tagalong with feelings:
ehem alam ba ninyo na ang mga baboy (Largo: gahi man lagi ryan) at kahit anong uri ng hayop sa
Mindanao ay hindi kinakain ng mga Muslim? Para sa kanila ang mga ito ay isang sagradong bagay.
Hindi nila ito kailangang kainin kahit na sila pa ay magutom at mawalan ng ulam sa tuwing sila ay
kakain. Ginagawa nila itong Diyos at sinasamba pa nila ito sa tuwing araw ng kanilang pangingilin
lalung-lalo na sa araw na tinatawag nilang Ramadan
They filed a case invoking emotional distress tort action as a special tort, requirements are that:
1. there must be a conduct of the defendant which is reckless and intentional and extreme and
outrageous
2. corresponding feeling of hurt that it causes mental and emotionaldistress caused is also severe
(extreme shame, and humiliation) or so disabling
Continue tom. Special torts and medical malpractice

September 15, 2010; //hazelescaan
11
KINDRED TORTS: Medical Malpractice

-
Lets go now to medical malpractice. How was this defined by the Supreme Court?
You have a case that tells you what are the elements needed for the case to be considered as
medical negligence. What happened in the case of Rueda?
Case of Garcia-Rueda vs. Pascasio:

-
The issue here is about the jurisdiction of the Ombudsman. But before the SC went into that, it
first explained what is medical negligence.
(below is what Atty. Highlighted in the case)

A word on medical malpractice or negligence cases.
In its simplest terms, the type of lawsuit which has been called medical malpractice or,
more appropriately, medical negligence, is that type of claim which a victim has available
to him or her to redress a wrong committed by a medical professional which has caused
bodily harm.
In order to successfully pursue such a claim, a patient must prove that a health care
provider, in most cases a physician, either failed to do something which a reasonably
prudent health care provider would have done, or that he or she did something that a
reasonably prudent provider would not have done; and that that failure or action caused
injury to the patient.
What happened to the husband?

Going into what SC said about medical negligence. We know that it is the relief that is provided
by the Courts against medical professional who has caused harm or death upon a person. But
what did SC say? What are the things you need to establish if you are bringing out a case of
negligence?
Hence, there are four elements involved in medical negligence cases:

1. Duty,
2. Breach,
3. Injury
4. Proximate causation.
First, there must be a duty. You must first establish that there is a patient-physician
relationship. What did SC say on how to establish this? Do we need to establish, for
example, an existence of some form of remuneration? Such that if you are treated but its
for free?
Would the fact that there is no exchange of professional fee matter?
So we are just going into the fundamentals, that doctors like lawyers, there is
relationship regardless of whether or not there is compensation involved. Once it is
established that there is a patient-physician relationship, we go into the DUTY. So
what is the duty of a doctor? So that he cannot be said that he committed medical
negligence?
Whose standard? What do you mean standard? Medical practitioner standard? Let
us see what happened in this 2000 case of Reyes.
Case of Reyes vs. Sisters of Mercy:

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

What brought about the diagnosis?

12
-
SC said that at that time typhoid fever was prevalent in that community. Because he
was suspected to have typhoid fever, what was administered?
What triggered the typhoid fever?
Did he really die of Ventricular Arrythemia Secondary to Hyperpyrexia and typhoid fever?
They were saying that they shouldnt have administered upon him the Widal Test. And
on top of that, they shouldnt have also given chloromycetin without conducting
sufficient test. But you have to understand that from what SC found out typhoid fever
was prevalent in the locality. Upon what standard of test do we test the duty of the
doctor so that it can be said that they were remiss of their obligation?
Is it the ordinary standard of care? Or the extraordinary standard of care?
For example I am ill, what will be the standard of care I should be attended to?
So the standard of care that we apply on Jorge Reyes who was treated in Manila would
be different of standard of care had he been treated in Surigao?
Leal do you agree that you test them on the prevailing standards of locality?
There are fundamental standards that are common among all medical practitioners.
But on the degree of care, here is what the SC has said:
o
o
o
That you test him on the skill and competence . . . that a physician in
the same or similar locality . . . Is that alright Mr. Leal that we test him on
the skill and competence in the same locality?? Any argument you can think of
to change the mind of the SC? Is this reasonable?
So the standard is that which is prevalent in the locality??
Take note of what SC said. You have this statement saying that there is a
certain degree of care that you hold out of a person based of a doctor rather a
physician based on reasonable average merit among all ordinary physicians.
But as to facilities for example, or their ability to respond to certain emergency
cases, you have to look as well into the skills and competence prevalent in the
locality. Although this has been subject to several criticisms because if the
standard of care is that which is only prevalent in the locality, whats to
improve their standard of care. If for example, what is prevalent in the locality
is that: We cannot test for everyone suffering of fever, and they say
automatically it is dengue because there are no facilities. And that care that is
expected of you whats to prod of you of improving your craft. There are
criticisms on the locality rule. But remember that is what the SC adopted in
this case of Reyes.
(below is what Atty. Highlighted in the case)

He was taken to the Mercy Community Clinic by his wife. He was attended to by respondent
Dr. Marlyn Rico, resident physician and admitting physician on duty, who gave Jorge a physical
examination and took his medical history. She noted that at the time of his admission, Jorge
was conscious, ambulatory, oriented, coherent, and with respiratory distress. Typhoid fever
was then prevalent in the locality, as the clinic had been getting from 15 to 20 cases of typhoid
per month. Suspecting that Jorge could be suffering from this disease, Dr. Rico ordered a Widal
Test, a standard test for typhoid fever, to be performed on Jorge.
They contended that had respondent doctors exercised due care and diligence, they would not
have recommended and rushed the performance of the Widal Test, hastily concluded that Jorge
was suffering from typhoid fever, and administered chloromycetin without first conducting
sufficient tests on the patients compatibility with said drug.
The practice of medicine is a profession engaged in only by qualified individuals. It is a right
earned through years of education, training, and by first obtaining a license from the state
through professional board examinations. Such license may, at any time and for cause, be
revoked by the government. In addition to state regulation, the conduct of doctors is also
strictly governed by the Hippocratic Oath, an ancient code of discipline and ethical rules which
doctors have imposed upon themselves in recognition and acceptance of their great

13
responsibility to society. Given these safeguards, there is no need to expressly require of

doctors the observance of extraordinary diligence. As it is now, the practice of medicine is
already conditioned upon the highest degree of diligence. And, as we have already noted,
the standard contemplated for doctors is simply the reasonable average merit among
ordinarily good physicians. That is reasonable diligence for doctors or, as the Court of Appeals
called it, the reasonable skill and competence . . . that a physician in the same or
similar locality . . . should apply.
You also have the requirement that you need to establish the injury was caused by the
negligence of the physician. So what happened in the case of Ramos? The first case, NOT
the Motion for Reconsideration.
Case of Ramos vs. CA

-
Removal of gallstones is a very simple operation. But what happened to him?

Here, is your landmark case telling you what kind of evidence you need to adduce that injury
was caused by the negligence of the doctor?
SO in medical negligence cases, your case will fall on the basis of expert testimonies.
As a rule in medical negligence, the proximate causation must have to be established

by expert testimonies. That is why it is a very expensive case to try, because you have
to bring out expert witnesses. And to engage the services of an expert witness and to
bring him for example here, from your locality would be very expensive. SC said that
as a rule, that is a requirement. But you can do away from that if you are able to
establish that the injury is something that would have occurred had the physician
exercised the due care, and that is the matter of common knowledge. Did this case fall
under that?
o You need to establish that the resulting injury is such that it would have arose
out of mistake of the physician and that is a matter of common knowledge and
experience.
Atty highlighted this:
Where common knowledge and experience teach that a resulting injury would
not have occurred to the patient if due care had been exercised, an inference
of negligence may be drawn giving rise to an application of the doctrine of res
ipsa loquitur without medical evidence, which is ordinarily required to show not
only what occurred but how and why it occurred
o
What facts are brought out here that made SC say you dont need expert
testimony here? While as a rule, every medical negligence case must have
expert testimonies? What happened to her right after the administration of
anaesthesia?
SC said, in those instances you can dispense with medical testimony,

although as a rule, every medical negligence case must have to be
based on medical expert testimony.
How was this applied in the case of Flores vs. Pineda? How did SC look
at the 4 basic elements?
Case of Flores vs. Pineda

-
Teresita Pineda, a 51-year old unmarried woman, complained of general body weakness, loss of
appetite, frequent urination and thirst, and on-and-off vaginal bleeding, and brought to United
Doctors Medical Center for general check-up. As for her other symptoms, he suspected that
Teresita might be suffering from diabetes and told her to continue her medications. Teresita did
not return the next week as advised. However, when her condition persisted, she went to

14
-
further consult Dr. Flores at his UDMC clinic travelling for at least two hours from Nueva Ecija
to Quezon City with her sister, Lucena Pineda.
Xxx Dr. Felicisima proceeded with the D&C operation (Mr. Leal then says RASPA, hehehe) with
Dr. Fredelicto administering the general anesthesia.
Xxx Teresitas condition had worsened. She experienced difficulty in breathing and was
rushed to the intensive care unit. Further tests confirmed that she was suffering
from Diabetes Mellitus Type II. Insulin was administered on the patient, but the medication
might have arrived too late. Due to complications induced by diabetes, Teresita died in the
morning of May 6, 1987.
Here, notice the steps taken by the SC. That is the importance of the case why this was
assigned. Notice the steps taken by the SC in resolving this medical negligence case:
First, look at the DUTY. If it could be established that there was a patient-physician
relationship, and then it is established what was the duty there of the physician. After
that, establish that there is a causal connection of the injury and the breach of duty.
Which was occasion for the Court, before the SC went into awarding damages.
If you look at the damages awarded,
WHEREFORE, we AFFIRM the Decision of the CA dated June 20, 2003 in CA G.R. CV No.
63234
finding
petitioner
spouses
liable
for
negligent
medical
practice. We
likewise AFFIRM the awards of actual and compensatory damages of P36,000.00; moral
damages of P400,000.00; and exemplary damages of P100,000.00.
We MODIFY the CA Decision by additionally granting an award of P50,000.00 as death
indemnity and by reversing the deletion of the award of attorneys fees and costs and restoring
the award of P100,000.00 as attorneys fees. Costs of litigation are adjudged against
petitioner spouses.
To summarize, the following awards shall be paid to the family of the late Teresita Pineda:
1.
2.
3.
4.
5.
6.
The sum
The sum
The sum
The sum
The sum
Costs.
of
of
of
of
of
P36,000.00 by way of actual and compensatory damages;

P50,000.00 by way of death indemnity;
P400,000.00 by way of moral damages;
P100,000.00 by way of exemplary damages;
P100,000.00 by way of attorneys fees; and
Maybe that is the reason why you file a case to get some vindication. But if you go for
damages, you dont get much. Here is a case of someone dying on the basis of medical
negligence, but the family only gets moral damages which is only 400,000, exemplary
is only 100,000 for several years of litigation. It doesnt pay much!!!
Atty highlighted this part of the case:

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

15
external appearances, and manifest conditions which are observable by any one may be given
by non-expert witnesses.
September 16, 2010; //julsebacolod

What must you establish when ou are proving medical negligence?
-the four element must be prove.
Elements:
i. Duty to apply the standard of care required by the profession
o Standard of care: the prevailing standard of care in the community.
(Locality Rule)
ii. Breach of duty failure to apply the standard of care required.
iii. Injury
iv. Proximate cause
Aside from the four elements, is there anything to prove?
-there must be a doctor-patient relationship bec. there could be a scenario that even if you are
check up by a doctor, there is no relationship between the two.
Example:
company.
a company doctor who check up those who seek to apply for position in such
What is the duty of the physician in a medical negligence case, who tell us whether this one is he due
care that he must provide?
-First it must be establish that there Is a duty and it must be a standard of care.
How do we prove proximate causation, by what proof?
-by expert testimony.. at all time? No, it could be the prevailing standard of care in the
community.
Is it possible for the physician to be liable even if the injury is cause by another physician?
-Lets have a look of professional service case. In this case, there are two doctors involved. Who
is liable among the two? The SC adopted the captain of the ship rule, that even if it was the other
doctor who operates the patient, dr. Ampil was held liable bec. he supervise and examine the work of
the other doctor.
What about the hospital? Is there any liability on their part?
-we got 3 cases here, the 2 ramos case and this recent case. Lets take up the first ramos case.
SC said the hospital is liable. Y? what happened with ramos here?
Ramos suffered a comatose and died after 14 years. Take a look at this bec this case is
peculiar with regard as to damages.
So is the hospital liable?
SC said there is ER-EE relationship. What is the test? (just like Marquez). Can the doctor here
be consider as EE? In this case they are called consultant. In the first case the hospital is liable bec
they are EE but try to look at the ground enumerated by the SC in this first case and contrast with
what the SC said in the same scenario but on motion for reconsideration. In the first case, SC said
there is significant control by the hospital but on motion for reconsideration the SC said on the findings
of hiring (four-fold test) that its not hiring but accreditation. On the aspect of control, there is no EE-ER
relationship bec the physician conduct his work according to his own mean and the hospital has no
control of it.
Two bar exam ago, we are telling the student that there is no ER-EE relationship within hospitals and
that of doctors. Is that still the rule?
-no..we go back to this case of Professional service v. Agana. Where can we draw the inference
that the dr. is an EE of the hospital even if in reality there is no supervision?
-under the doctrine of apparent authority. Why did the SC said that there is apparent authority
in this case or agency by estoppel? The SC said, putting the names of the Dr. you hold them as part of
the hospital.

Then there is this law I want you to take a look. R.A. 9439 it provides that it is sufficient that the patient
should
16 execute promissory notes or either by mortgage or guaranty. What you got to remember is that
you can only invoke this law when if you stayed in a NOT private room or those confined in wards.
DAMAGES
Damage and damages, the same?
-No.. where does the distinction lies? Damages is the compensation for the damage. Damage
means loss or harm suffered. So similar with the concept of injury then? No.. it is invasion of legal
rights
So, for every damage there is injury? No, there can be damage without injury. Example: filling of an
action against another in good faith. In this case there is no reparation because injury or evasion of
legal right that will amount to damage bec. there would be damage without injury but if there is injury
there got to be damage.
What are the kind of damages?
Moral
Exemplary
Nominal
Temperate
Actual
Liquidated
So next meeting the flow of discussion is actual damages and how to prove it to determine liability.
What is actual damages for breach of contract or tort
September 22, 2010; //jonsingco
Largo: what is Damage as distinguished by Damages? Would it be a pre condition to award damages?
A: injury as a pre-condition relate with damnum absque injuria
Largo: one of those damages that can be awarded is actual damages. What is it?
Bacolod: (dapat complete) adequate compensation for pecuniary loss
Largo: two things to bear in mind in the definition Adequate compensation aims to fully as much as
possible compensate you, this is important to establish or prove if you ask for actual damages and
pecuniary loss, which has something to do with for that you have suffered that has been duly
proved, for what has been lost monetarily
Largo: as to determine the adequacy of compensation will depend on the kind of damage or injury
sustained. Because the adequate compensation if it were a breach of contract case or quasi-delict or
crime.
Largo: example of breach of contract case?
Bacolod: breach of contract of carriage
Largo: what would be the scenario in a breach of contract?
Bacolod: existence of a contract
Ex. Rough riders (Smooth Riders) having a contract with Jules Bakeshop, to transmit the crops from
Bacolod to Cebu. As fate would have it Smooth riders turned turtle and all of the crops and prawns
where spoiled, Jules was not able to serve for his restaurant. Assuming for an ordinary weekend you
are supposed to earn 50k net of expenses. Question: how much can you ask from Smooth Riders?
Bacolod: price of the lost goods + lost income of 50k expected income.

Largo: what if you where to use those crops and prawns for a wedding and expected to earn a net of
500k,
17 unknown to Smooth Riders, you departed from your usual earning of 50k due to that one time
engagement.
Bacolod: they will be liable for 500k after duly proving such claim.
Largo: 1st determine if the person who caused the breach acted in Bad faith or Good faith. Under Art.
2201
Art. 2201. In contracts and quasi-contracts, the damages for which the obligor
who acted in good faith is liable shall be those that are the natural and probable
consequences of the breach of the 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 nonperformance of the obligation. (1107a)
The test of liability for breach of contract or in quasi-delict. The test is if the person who caused the
breach acted in good faith or bad faith.
If good faith- foreseeabilty is the test. If bad faith, even if not foreseeable, liable!
Largo: what about in Crime? Example?
Bacold: Murder, Pongot Fred
Largo: Pongot died, but you did not intend to kill him only maim him, but his right arm was cut off, he
was unable to take the bar, he was rushed to the hospital and incurred 108k, liable?
Bacolod: yes plus actual expenses in the hospital
Largo: what if after you maimed him, you did not know he was diabetic, he developed complications
and he died, will you still be liable for funeral expenses, there was no foreseeability here, are you still
liable?
Largo: in Art. 2202 the general test in Crimes even in Quasi-delict the test is not foreseeability but the
proximate cause, if the proximate cause is the act of the accused in the quasi delict case
Art. 2202. In crimes and quasi-delicts, the defendant shall be liable for all
damages which are the natural and probable consequences of the act or
omission complained of. It is not necessary that such damages have been
foreseen or could have reasonably been foreseen by the defendant.
Largo: but as to the whether he can be actually liable will depend on what kind of evidence you bring
into trial. But not only that, you need to tie up this discussion with general or special damages
General- need not be specifically pleaded, they can be embraced in a general prayer other reliefs
and remedies consistent with law and equity are likewise prayed for those which naturally result
from the act
Special must be specifically pleaded otherwise you cannot recover even if the proximate cause of
such is the act of the accused in the quasi delict case one that does not usually arise or ordinarily
result from the act of the defendant.

Example of special damages: assuming Pongot is a Gurl, and Jules hated her, and Jules waited after
pongots
Torts Exam, so Jules hit Pongot in the stomach. Such was so strong, that it caused damage to
18
her uterus and that she cannot have a child FOREVER! you act of punching is the proximate cause,
but if it is not specifically pleaded that she (pongot) cannot have anymore a child.
Largo: but if you are able to establish actual monetary, pecuniary loss incurred, you can be awarded
for damages. Art. 2200 for profits not obtained can also be included, for loss of earning capacity (refer
formula) and attorneys fees and interest.
Largo: for interest lets discuss about it tom. Whos your class president? (ate Rhen) inday they should
let you rest youve been president since 1st year. =)
Largo: lets discuss attorneys fees, what happened in the case of QUIRANTE VS. IAC
Largo: when we say attorneys fees it composes of two aspects. 1. Ordinary Concept compensation
given to the lawyer for the services rendered and goes to the lawyer. And 2. Extraordinary Conceptaspect of damages awarded to the plaintiff if compelled to litigate
Largo: for tomorrow, what are the two very important preconditions for attorneys fees as an element of
damages may be awarded. =) assignment tom. Up to moral damages.
-
What are the requirements before the Court can award attorneys fees?
There are 2 things to consider regarding attorneys fees, as an item or component of

damages:
o 1. You must find its justification in the body of the decision.
o 2. It must also be decreed in the dispositive portion.
On the first requirement, Supreme Court looks for 2 things. The

justification must be anchored on provision of law, and that is factual
basis.
Factual basis
I. Justification in the body of the decision
Law (Article 2208);
and
II. Dispositive Portion
When can attorneys fees be awarded? What does the law provide, when is it proper to award
attorneys fees?
Is there any provision of law enumerating the instances when attorneys fees should be
awarded?
See Article 2208, NCC
You find all enumerations and instances when attorneys fees may be awarded as item
of damages. SC says that has to be decreed in the body of the decision. What is the
legal basis for the award of attorneys fees? For example, attorneys fees is given to
the winning plaintiff, it is given because you have been compelled to litigate. And if it is
given to the winning defendant, it is almost always given because??
o Cabs answered, when the defendant acted in gross and evident bad faith (?)

o
19
Atty. said: In filing the case? In which case, the defendant there is the plaintiff,
in the sense that he is the recipient of the counterclaim.
But the Judge awarding attorneys fees must have to find the justification in
Article 2208. But has to entwine that with some factual basis. He must, for
example say that there had to be findings that demands have been made but
the defendant did not comply, forcing the plaintiff to litigate. So there is an
award of attorneys fees.
Therefore, there has to be confluence of both factual basis as well as the legal provision of law,
in the body of the decision. If its in the body of the decision, it must as well be in the
dispositive portion, because you already know this in Civil Procedure that it is the only portion
of the decision that you can enforce. No matter how nicely stated in the body, but it is not in
the dispositive portion, you still cannot execute it.
But even if it is in the dispositive portion, if it doesnt find justification in the text of the
decision, then it can still be assigned as an error on appeal. Thats why to properly recover
attorneys fees as an item of damages, it must be in the text, both the factual and the legal
basis, and then it must also be decreed in the dispositive portion.
Let us go to the topic I am most afraid to discuss with you.
If you look at the case of Eastern Shipping Lines vs. CA, still a very good law on the matter.
There are 3 scenarios being depicted:
1st scenario: when the obligation consists in payment of sum of money. That is, its a loan or
forbearance of money. What I will give as a scenario is loan, because Eastern Shipping depicts
that as the first scenario, loan.
I. Loan
Principal Amount
100,000
100,000
Due debt
September 30, 2010
Interest
2% = [24% per annum]
Extrajudicial demand
Judicial demand
December 2010
2020 - - - with finality
24,000
Principal + I + I
How much?
The principal amount is 100,000, and it is due on September 30, 2010. If after the due
date or September 30, the debtor does not pay, can the creditor claim interest?
Atleast, one thing that is clear to us in Credit Transaction is that there are 2
kinds of interest:
1. interest for the use of money
2. interest as component for damages
Interest for the use of money can be claimed only if there is a stipulation in
writing. So if you have to be really bad about it, you can just promise him to
pay interest, and make sure it is not in writing. But if that happens to you,
make sure it is in writing. Because the interest that is known as monetary
interest (meaning interest that you pay for the use of money) you can only
claim this when there is a stipulation, or stated in writing.
You should know the interest you pay for the use of your money. 12%? 20%?
Credit card is 3% per month or 3.5%. It is reasonable. Or 24% per annum. It
was asked in 1999 bar exam, I took it September. Decided by the Court in

October, see how unfair? What if the interest stipulated upon is 4% per month?
Is it unconscionable? You have decisions wherein SC would say that it is
unconscionable if 4% or 5%, except there is a decision that states if you are
a seasoned businessman, Courts cannot always rush in to protect a person
from a bad bargain. So it depends. If you are for the plaintiff you can use this
case. If you are for the defendant, use another case.
20
Lets just say 24%. We are sure it wont be struck down as unconscionable. If
by September 30 it is due, how much do you get? What is 24% of 100?
So you can claim 100,000 and the 24,000.
Do you impose interest on the interest?
Aranas said NO!
So when do you impose interest on interest?
From extrajudicial demand, you cannot claim interest yet because the
law says, interest due shall earned interest from the time it is judicially
demanded, which means from the time you file a case in Court.
If you made an extrajudicial demand, you cannot impose interest of
this one as yet. But if you made a judicial demand, you can already
impose interest on the interest. This is the interest that is NOT for the
use of money, but already for as a component of actual damages. That
is the interest we are talking about when we say among the
components of actual damages are attorneys fees and the interest.
You filed a case in December 2010. It was decided 2020, with finality. What can
be the claim?
The principal, the interest agreed upon and the interest as component
or item of damages, but how much? From the time it is judicially
demanded you already imposed interest on the interest. It does not
say from the time it is judicially fixed. So from the time you file a case
you can already claim interest on the interest.
But when the judgment becomes final, how much can we get this time
as a component or item of actual damages? This is what Eastern
Shipping case has been saying. That you claim 12%. And the 12%
there, because it is a loan or forbearance of money.
Try to contrast that with the 2nd scenario:
When it is still 100,000 but it is not anymore loan. Can that happen? Can there be a
claim that is not based on loan? It says, when the obligation is not constituting loan.
For example, for the contract that you have agreed, breach or non-compliance with
this agreement will entitle the other party liquidated damages of 100,000. At the
outset, you have fixed the amount of damages to be 100,000. That is an obligation, but
is that arising from loan or forbearance of money?
NO, it is in the form of liquidating fixed damages.
Illustration (when obligation is NOT constituting a loan):

Extrajudicial demand
Article 1169]
September 2010
Principal +Interest [See
Judicial demand
December 2010
P + I + I
So 100,000. Lets say you made the extrajudicial demand. You said, you have breached
the agreement, pay me the liquidated damages stipulated in the contract in the

21
amount of 100,000. You made that extrajudicial demand on September 2010. Can you
get the principal, meaning the liquidating damages of 100,000?
Why not? So when will you ask for that if your answer is no?! That is the reason
why you demand because you can already claim!! But can you claim interest
on the principal?
YES.
This is not interest for the use of money because that is not agreed
upon in writing. This is interest as item of damages, and you can claim
it from the time you made an extrajudicial demand on the basis of
Article 1169.
Then you made the judicial demand or filed a case in December 2010.
You can get the claimed amount of 100,000. And then sure you made demand
on the interest.
Can you impose interest in this interest?

YES, because there has been already a judicial demand.
For how much? This is not anymore the 12% in the first scenario of
Eastern Shipping. The answer is 6% because it is not loan or
forbearance of money.
3RD scenario is: When the demand of damages is not yet liquidated.
This can happen when: wrongly accused of a crime, besmirched reputation. And so you
are saying, indemnify him of the amount of 1 million, ngeh ka gamay. The thing is if
you ask for so much and you cannot pay filing feeshehehe. You just put in your
demand letter not less than 1 million so that you can give leeway for the court to
award more. In the demand letter, you start with 10 million, but when you sue lower it
because its very costly. 16,000 as of now, by the time you file a case as a lawyer, I
think it is costly if more than the amount of the filing fee. If you claim 10 million,
16,000 per million = 160,000. Uyy, hello?? For moral damages???
Lets say you claim for 1 million. The thing is it could be less or it could be more
depending on what the court will award. In the nature of unliquidated damages, it
is not yet fixed, it is mere demand.
Lets say as of now, September 30, you sent that demand letter and said You
know, you ruined my reputation!!! So pay this sum of not less than 1 million in
moral damages. Can you already claim interest on an unliquidated damages?
NO.
How about when you file the case?

This is what the SC said:
No interest, however, shall be adjudged on unliquidated claims or
damages until the demand can be established with reasonable certainty.
When is reasonable certainty? Be careful. Because if at the level of the

trial court, the Court says We sympathize those... By December
2015, Court says: Indeed, award the sum of 100,000. Do you already
impose at this point impose interest? Or what if this went all the way to
the Supreme Court by December 2020. Where do you impose at this
point the 6% interest?
*TRIAL COURT. See illustration below.
Because at this point, it has already been determined with reasonable
certainty. Then he is not contented, 100,000 is too much. He spends so
much just to go to Supreme Court.
You impose the 12% here *Supreme Court. See illustration below.
You impose the 12% until paid, because in Credit Transaction and in
Easter Shipping Case, at that time it has become a loan until it has
been paid by the judgment-debtor.

Illustration (unliquidated damages):
22
Extrajudicial demand:
*Trial Court
6%
December 2015
*Supreme Court
December 2020
12% until paid
100,000
100,000 + 6% from T/C
Mitigation and assessment of actual damages

There are facts you can argue to mitigate damages. You can use this against the iguana bar
question. You can mitigate the damages by saying that the party suffering the loss must
exercise the diligence of a good father of a family to minimize the damages. The better way to
ask this in the bar is
This is known as the Doctrine of Avoidable Consequences (Article 2203 NCC)
After you have been injured, you must do something to minimize the damages.
The law says, the one suffering the loss must exercise the diligence of a GFF
(good father of a family) in order to minimize the loss.
In my exam, I would have wanted to ask how then would you differentiate this
doctrine from the Doctrine of Contributory Negligence.
-
How do you minimize as well, in cases of quasi-delict?
You reduce that by showing contributory negligence.
How does that differ from the doctrine of avoidable consequences? You have to be familiar with
other names for the terms. like in remedial law, it was asked, what is this res adjudicata in
prison grey? The complete term is res adjudicata dressd in prison grey. You have learned that
in Consti 2, that is double jeopardy!!
Article 2215 NCC: These are ways of mitigating damages. Look at this because in the finals
we will adopt the legal memo.
Subrogatory right of insurer (Article 2207 NCC)

This one is important in the sense that, for example you file a case against the insurer in the
breach of contract of carriage involving damages. You file a case against the operator and
include the driver but it is a waste of time and money. You include the insurance company, who
will do everything not pay.
Court says: Wherefore, judgment is in favor of plaintiff(You) and against the
defendants to jointly and solidarily, (which means what?) to pay plaintiff the sum of 1 million in
actual damages, and 500,000 in moral damages, and 500,000 in exemplary damages.
In a contract of carriage, the required insurance there is 50,000 for TPL or third-party
liability.
This operator of the bus company gets 50,000 insurance coverage for you. The
contract between the company and the insurance is 50,000. Since you impleaded the
insurance company, and the Court says pay the plaintiff solidarily the sum of 2 million.
Will you go the driver?
NO, unless you want to really exert some effort.
You may go to the operator, maybe you will. Or maybe you want to go to the
insurance company because they have a lot of money. So you go to the
insurance company, and it is a solidary obligation. How much? For 2 million?
Careful. That kind of decision as held by SC is inferred. You can only
hold the insurance company liable upto the extent of the insurance
coverage. So if you see that in the decision of the trial court, dont be
too happy. You can very certain that the insurance company will appeal
and that is one of the issues that is most certain to be reversed on
appeal.
23
If you are asked to render legal opinion, in law, but you really can hold
insurance liable or that stated in the insurance contract.
Then, insurer has the right to go after you if and when he has paid.
General Requirement
In all of these, if it is actual damages, what is the requirement for recovery?
Pleading and proof.
What kind? You have to state that in your complaint. Keeping in mind what you
have learned about general special damages and the prayer that you need to
pray.
Having pleaded that, remember that you can only prove that which you have pleaded.
If you havent pleaded that, that cannot be proved, unless you went on proving sans
objection (??) from the other party, you learned in Civil Procedure that they can
receive evidence that have been adduced even if not pleaded, can received because
that is to conform to evidence. [Amendments to conform to evidence]
But as a rule, if it is objected to, then you cannot go about presenting proof.
If you have pleaded that, what is the kind of proof you need to present?
Because this is actual damages, you need to present proof that will show to 2
things:
1. pecuniary loss
2. exactitude.
That is why, if you claim that you have an unearned income of 1
million, be sure to substantiate that. Otherwise, if that is a claim for
actual damages that is not proven with exactitude, then it may not be
awarded.
Court can go on to award you some other forms of damages that you
know of next meeting
-
If you are dealing with crime, and this one speaks of hospitalization expenses. What kind of
proof you need to present?
Best obtainable evidence is the requirement for actual damages.

MORAL DAMAGES
-
What is the reason or purpose for the grant of actual damages?
It is indemnification, yes, but the way it was described by law is that it is meant to be
an adequate indemnity or adequate compensation.
When we look at Article 2217 which deals with moral damages, however, this is what you find:
Art. 2217. Moral damages include physical suffering, mental anguish, fright, serious
anxiety, besmirched reputation, wounded feelings, moral shock, social humiliation, and
similar injury. Though incapable of pecuniary computation, moral damages may be
recovered if they are the proximate result of the defendant's wrongful act for omission.
It would encompass those involving physical suffering, mental anguish, serious fright,
besmirched reputation, wounded feelings.
But if you look at the kind of loss or damage that is meant to be compensated by moral
damages, what can you observe? If actual damages covers pecuniary loss, this one
involves.. feelings.
Distinguish moral damages from actual damages:
As distinguished by that of actual damages, the law and the cases in Article 2216 and
the subsequent cases that you do not need proof of pecuniary loss because it does not
cover monetary loss, but losses that dont involve money, instead it involves feelings.
o Art. 2216. No proof of pecuniary loss is necessary in order that moral, nominal,
temperate, liquidated or exemplary damages, may be adjudicated. The

assessment of such damages, except liquidated ones, is left to the discretion of
the court, according to the circumstances of each case.
24
First, the kind of proof that you need, whereas in actual damages because it is meant
to be an accurate compensation for monetary loss you have to prove your monetary
losses with exactitude. By the very nature of damage meant to be addressed by moral
damages, you cannot present proof of pecuniary loss for that, which is why Article
2216 says no pecuniary loss is necessary in order to cover moral damages. While proof
is needed it is not the same of proof needed when you want to prove actual damages
because the quantum of evidence that you need as held in the case of Simex
International vs. CA is that you do not have to establish it with exactitude as in the
case of actual damages because of the nature of moral damages as being NOT
susceptible of exact pecuniary on determination.
I need to emphasize on this: adequate compensation for pecuniary loss.
Second, as to the purpose of the grant of damages.
o Case of Makabali vs. CA Petitioner suffered sleepless nights and public
humiliation for 3 days and 3 nights in HongKong, for failure of private respondent
in the performance of their obligation. You can just imagine the anxiety that you
are faced with when you are placed for the first time in a foreign country without
a benefit of the support that you expected. SC said moral damages is not given as
a penalty to the wrongdoer, but as a means to alleviate the moral suffering. The
way it was stated is: If actual damages is meant to restore you to your status quo
ante, on the other hand, moral damages is meant to approximate your spiritual
status quo ante.
When do we award moral damages?
You give it to instances enumerated in Article 2219 plus analogous cases. Later on,
when we discuss on libel in cases of corporation, the last ruling of the court is to award
libel falling under analogous cases. That may not be so accurate, because the law
states that all in the enumeration of Article 2219 plus cases analogous to these. If you
go down, you will find libel as among those enumerated. This is not an analogous
cause. So lets look at the instances when moral damages may be awarded.
Art. 2219. Moral damages may be recovered in the following and analogous cases:
(1) A criminal offense resulting in physical injuries;
(2) Quasi-delicts causing physical injuries;
(3) Seduction, abduction, rape, or other lascivious acts;
(4) Adultery or concubinage;
(5) Illegal or arbitrary detention or arrest;
(6) Illegal search;
(7) Libel, slander or any other form of defamation;
(8) Malicious prosecution;
(9) Acts mentioned in Article 309;
(10) Acts and actions referred to in Articles 21, 26, 27, 28, 29, 30, 32, 34, and 35.
The parents of the female seduced, abducted, raped, or abused, referred to in No. 3 of
this article, may also recover moral damages.
The spouse, descendants, ascendants, and brothers and sisters may bring the action
mentioned in No. 9 of this article, in the order named.
o
o
If its a crime resulting in physical injuries, Court can award moral damages.
Also in quasi-delict also resulting in physical injuries, as well as SARA - ( Seduction,
abduction, rape, or other lascivious acts). In adultery or concubinage or illegal
arbitration, the reason why you need to understand this is because when
confronted with instances not falling under any of the enumeration, then you can
considered them are they analogous to those enumerated. Thats why you have
to be familiar with the listing.

o
25
Libel
-
Here you see illegal arbitration. Later on when you read the cases decided by the
SC, SC considered kidnapping to fall as an analogous cause.
Libel, slander, or any other kind of defamation
Internet libel we have to discuss this because it was asked in the bar
exam. The answer to that question is that case decided by the bar chair in
May of 2010. Few months before the bar, she crafted that decision of
Bonifacio v. RTC, she said whether there can be libel when the defamatory
utterances were published in the internet.
Art. 353. Definition of libel. A libel is public and malicious imputation of a crime, or of a vice
or defect, real or imaginary, or any act, omission, condition, status, or circumstance tending to
cause the dishonor, discredit, or contempt of a natural or juridical person, or to blacken the
memory of one who is dead.
Libel being defined as public, and malicious.
As to public, we have the case of MVRS vs. Islamic DaWah
o Regarding pigs; where libel can only be committed if the defamatory
imputation is communicated to a third person. No matter how defamatory it
was uttered straight to the person who was made subject to the statement, it
cannot be libel. It has to be a third person, because in this case, it is meant to
address relational interest. That is why it has to be communicated to a third
person, and that is meant by public, it need not be so many for as long as it
is someone else other than the subject of the defamatory statement. It has to
be communicated because libel is meant to address the damage on your
reputation, that is what is covered by relational interest.
o Thus there are 2 things being emphasized in this case:
1. relational interest
2. reputation not the high regard of what you have of yourself, but the high
regard of others on you. That is why it has to be communicated to.
As to malicious imputation the imputation has to be malicious. There has been

jurisprudential development beginning with 1999 in the case of Borjal.
o For every defamatory information we utter, malice is presumed. This is what
you call malice in law. (Article 354) As long as it is defamatory, there is
automatically malice attached to it.
o Art. 354. Requirement for publicity. Every defamatory imputation is
presumed to be malicious, even if it be true, if no good intention and justifiable
motive for making it is shown, except in the following cases:
1. A private communication made by any person to another in the performance
of any legal, moral or social duty; and
2. A fair and true report, made in good faith, without any comments or
remarks, of any judicial, legislative or other official proceedings which are not
of confidential nature, or of any statement, report or speech delivered in said
proceedings, or of any other act performed by public officers in the exercise of
their functions.
o
Exception: If it falls under any of these two.

1. A private communication made by any person to another in the performance
of any legal, moral or social duty
- example: you hate your teacher so much. You said that she is the worst
teacher of all. We learn nothing from her. You send that to Dean Alex who has
supervisory authority over teachers. That is defamatory imputation because
you are accusing your teacher that she has not imparted anything to you. But
because it is in the performance of moral, if not legal duty, then that
defamatory imputation cannot carry with it malice in law.

- But if you sent it to Lex Circle, who does not have authority over teachers,
this one cannot because it is not in the performance of legal, social, moral duty.
Thus, it has to be someone who can act on the complaint.
26
2. A fair and true report, made in good faith, without any comments or
remarks, of any judicial, legislative or other official proceedings which are not
of confidential nature, or of any statement, report or speech delivered in said
proceedings, or of any other act performed by public officers in the exercise of
their functions.
o
The comments made by broadcasters or media, do not fall under any of the
two. The privilege communications embodied in article 354, it doesnt. Because
it is not a fair and true report devoid of any comment. It is wicked with
comment. If so, can we then presume malice for every utterance made by
commentators and media personalities?
This is what SC said in the case of Borjal: Article 354 is not exclusive. You
can add to this, what is known as the doctrine of fair comment. This
doctrine states that for as long as the comment is made based on matters
of public interest. Remember that you can make a comment, unless in the
case of paragraph 2 of article 354. It says devoid without any comment.
Here, you can make a comment on matters of public interest for as long
as the comment is based on established fact, even if the comment be
later on found to be mistaken or false, then there cannot be a
presumption of malice in your utterance.
(chika time) because you are always thinking along the line of before. You
make a comment, and that is a matter of public interest, because public
comment could come in 3 forms:
1. public official
2. public figure which doesnt require you to be an official
3. public funds
In which case, if you make a comment on that it is a matter of
public interest. And for as long as your comment is based on
some established fact, for example some audited report that says
that this much is spent when only this much is necessary. Or this
is the prevailing price somewhere but this was how much the
government has paid these sacks of cement. Therefore, based on
some established fact then you make a comment, for example
you say that the person is the queen of graft and corruption. This
is a comment, not a fact. Even if later on that will be mistaken,
the other line of defense is you know that you cannot be onionskinned if you are a public official. But thats a different story.
If you want to go by doctrine of fair comment, there are 3 things you need
to establish:
1. public interest even if later on found to be mistaken, is somehow
based on some established fact.
2. established fact
3. no reckless disregard for truth
The third requirement of the doctrine of fair comment is found in

the case of Tulfo v. People. This is a very nice case. Tulfo was so
brave in saying that these people in BIR are so corrupt. But we
say that all the time. He identified the person, and said he is the
most corrupt in a certain part of the bureau. And so, when atty.
Carlos So came forward, the first line of defense is that I am not

27
referring to you. Which is quite difficult to believe. When this

matter went to SC he was forced to rely on the doctrine of fair
comment. But SC said, it is only when there is no reckless
disregard for truth (3rd requirement). Before you made that
comment, which later on found to be false, you first exerted
reasonable efforts at investigation.
If it is under any of the three, then malice is NOT presumed. But does that
mean that you will be acquitted?
That is when the prosecution has to establish malice in fact.
That does not mean that you will be automatically acquitted. It
only means that the burden of proof is now shifted on the State to
prove malice, because malice is no longer presumed. They have
to prove that you did not do that out of sheer moral duty. That you
did not have ill-will when you made the utterance. In which case,
you can also be convicted for malice.
In so far as libel is considered, Tulfo is the important
jurisdprudence.
Internet Libel
Just like Vicky Belo versus Guevarra. That lawyer who wrote nasty things in facebook against
Belo because he was the counsel for the girl whose ass was deformed by Belo.
Would there be libel if the defamatory statements where allegedly made through the medium
of the internet?
In the case of Bonifacio vs. RTC; GR No 184800, May 5, 2010

o
This concerns the plan holders of Great Pacific Life or GREPALIFE. They were so
mad at this Yuchengco (dont know the spelling). They made this website PEPSI
(dont know the exact basta sounds like that). They made that site, and said
look what happened to the negotiation. They just tricked us into going
through negotiation so that no criminal cases will be filed against them. Mga
mangigilad!! In tagalog. And so we should march now and file a case!!! And
so Yuchengco filed a case against them.
In the information, it was alleged that this article which came out in the
internet, accessible to anyone anywhere in the world, was published and
accessed first by the complainant in Makati. That is why it is filed in Makati.
Remember the requirement of venue which is jurisdictional in case of libel. In
the place where it was first published. And why is that the requirement of the
law by way of amendment? Because before the amendment, the way to harass
a person or the media men is to file the libel case in a very remote far-flung
area. You can just allege you read it there so you can file the case there and
you can bring that person there like what happened to Leo Lastimosa. To cure
that, the law says that it has to be filed where it was first published, because it
is quite definite and easy to trace. You just look at the address of the
publication, and that is where it was first published.
She rules out libel through internet publication, when she said If the purpose
is to prevent indiscriminate or arbitrary filing or laying of the venue, then that
was solved by requiring that it be filed in the place where the article was first
published because it is easy.
The part Atty. Highlighted from the case:
Clearly, the evil sought to be prevented by the amendment to Article 360 was
the indiscriminate or arbitrary laying of the venue in libel cases in distant,
isolated or far-flung areas, meant to accomplish nothing more than harass or
intimidate an accused. The disparity or unevenness of the situation becomes
even more acute where the offended party is a person of sufficient means or
possesses influence, and is motivated by spite or the need for revenge.
If the circumstances as to where the libel was printed and first published are
used by the offended party as basis for the venue in the criminal action, the
Information must allege with particularity where the defamatory article was

printed and first published, as evidenced or supported by, for instance, the
address of their editorial or business offices in the case of newspapers,
magazines or serial publications. This pre-condition becomes necessary in
order to forestall any inclination to harass.
28
The same measure cannot be reasonably expected when it pertains to

defamatory material appearing on a website the internet as there would be no
way of determining the situs of its printing and first publication. To credit
Gimenezs premise of equating his first access to the defamatory article on
petitioners website in Makati with printing and first publication would spawn
the very ills that the amendment to Article 360 of the RPC sought to
discourage and prevent. It hardly requires much imagination to see the chaos
that would ensue in situations where the websites author or writer, a blogger
or anyone who posts messages therein could be sued for libel anywhere in the
Philippines that the private complainant may have allegedly accessed the
offending website.
o
The RTC of Makati branch 149 is directed to quash the information and dismiss
the case. Or maybe she is just a plan holder..hehe The reason why she said
that is because of the very evil sought to be prevented by the amendment will
happen if you allow internet libel by just testing where it was first accessed.
Oh! So very nice, we can.... because there is no libel! But maybe damages if
libel is unavailing.
Malicious prosecution
This is the other ground for moral damages. Every now and then you will find this, in Criminal
law, Civil law.
When is there malicious prosecution?
To maintain an action for damages based on malicious prosecution, three elements

must be present:
1. The fact of the prosecution and the further fact that the defendant was
himself the prosecutor, and that the action was finally terminated with an
acquittal.
2. In bringing the action, the prosecution acted without probable cause.
3. The prosecutor was actuated or impelled by legal malice.
-
Who do you usually hold liable in a case of malicious prosecution?

Is it the fiscal? The thing is, you can set this as a defense. You can say that the fiscal found
probable cause and filed this case, except that later on during trial Court ruled this case ..
(words of Atty not clear here). You cannot be accused of malicious prosecution because in the
first place, prosecutor found probable cause. So when will there be malicious prosecution? In
civil case, it can happen when he files a sham complaint then there is malicious prosecution.
But can there be a case of malicious prosecution if what was commenced against you is a
sham civil complaint?
When we say malicious prosecution, does that cover only cases filed against you criminal in
character?
Espiritu answers, it is both civil and criminal.
Atty said, how about administrative? In fact, this was so extensive to even include if
you ever file a disbarment complaint against a lawyer who is found to be without
basis. Careful, because they might file a case against you for malicious prosecution. It
can even include administrative cases for as long as judicial proceedings in character.
For as long as the elements are present, the elements that you find in the case of Lao
vs. CA. The very nice thing about you testifying against a person and later on the case
was dismissed is that as early as in this case, witness cannot be said to be involved in
malicious prosecution.
Violation of Article 21
Specifically on breach of promise to marry.
Can there be moral damages in a breach of promise to marry? If you do not fulfil your promise
to marry a person?
Class says as a general rule no. Atty. said except when.?

29
The thing is it is not in the nature of moral damages. It is in the nature of actual
damages for the actual expenses incurred. Because the law cannot penalize someone
for not fulfilling the promise to marry. What is only allowed by the law is when you have
incurred actual expenses that you can be awarded of actual damages.
Atty highlighted this in the case of Hermosisima vs. CA:
The elimination of this Chapter is proposed. That breach of promise to marry is not
actionable has been definitely decide in the case of De Jesus vs. Syquia, 58 Phil., 866.
The history of breach of promise suit in the United States and in England has shown
that no other action lends itself more readily to abuse by designing women and
unscrupulous men. It is this experience which has led to the abolition of the rights of
action in the so-called Balm suit in many of the American States.
It is different if moral seduction comes in because then you will be granted of moral damages
not because of breach of promise to marry, but because of the moral seduction that came into
the picture.
October 6, 2010 LAST MEETING!!! ; //stevesantillan

So we try to finish this in 30 mins. This would be our last meeting.
Cases or instances when moral damages may be awarded.
We made mention of award of damage in breach of contract cases. Remember that mere breach does
not automatically result in bad faith right? Because there could be breach in good faith and there could
also be breach in bad faith. The award of moral damages is proper only if there breach in bad faith.
Here the Supreme Court emphasized this in breach of contract of carriage cases where moral
damages is awarded when the defendant acted in bad faith.
But what if there is no bad faith? The other case under the law where you award moral damages is in
the case of 1764, where it says if in the breach in the contract of carriage death results, then there
can also be moral damages even if there is no bad faith. Example when bus is colliding with another
bus and the passenger of that bus died so you have breach of contract of carriage there right? Here
you dont have to find bad faith to be awarded damages since somebody died, but if nobody died there
has to be bad faith in order to award moral damages. Bad faith connotes intent or some instance of
malice. In one case the Supreme Court said -however if the negligence is so gross that it can amount
to bad faith then for as long as there is finding of bad faith there could be award of moral damages.
So 3 things then:
1. Is when there is bad faith
2. Even if there is no bad faith but there is gross negligence which amount to bad faith and
3. In breach of contacts when someone dies.
Then it can be ask in the bar maybe if not in Mercantile Law, in Civil Law- what is the rule on the
award of damages in favor of corporations? Or do you award moral damages in favor of corporations?
The case of Mambulao Lumber vs. PNB is the first case on that one, where it says- you do award moral
damages because the corporation has a reputations. Do you agree? Remember when we were looking
at the award of moral damages there is wounded feelings , besmirch reputation etc. Then come the
case of ABS CBN Broadcasting Corp. when the Supreme Court said the case of Mambulao is just an
obiter dictum-you cant award moral damages to a corporation because a corporation has no feelings,
no veins. So what about reputation?????...It reiterated that in Napocor case, where it is said that there
being no feeling, no nervous system then there is no moral damages. But then again the nagging
thought, what about the issue on reputation? Pero atleast ha ayaw lang jud mo coz you might get this

wrong in the bar. Just in the bar. If you become a lawyer that would be a good thesis in masteral of law.
But
30in the case of Napocor, SC said no nervous system.
Then came your Filipinas broadcasting case, what do you think this case is about? What brought about
the libel case? File by the school because apparently there were students who flunk in certain
subjectmore than 50% failed. So why is it suddenly the fault of the school? They said this was done
purposely so they can offer this as another class and thus make money. How cruel noh? Which is to
say- that they file a libel case because this was done in the radio. Again if the purpose is to correct the
mistake is to enforce it to certain channels..unsai labot sa Bombo radio in this case or Phil.
Broadcasting network. In this case there is really humiliation. So there is libel in there and then will you
grant moral damages? If you look at the grounds to moral damages libel will be one of them, and since
you can commit libel to natural and juridical persons then you can grant moral damages in favor of the
corporation, if the case is libel. Then the latest case of Republic vs. Tuvera seems to affirm that
decision and falls under an analogous circumstance. What would be an analogous case when it is
specifically listed there? Probably this is just a typographical error by the Supreme Court noh? So it is
now that you grant moral damages to corporation if the cause of action is founded on libel. Because
after all libel is one of the instances when moral damages can be awarded. That is the latest rule. Im
sure you dont have any questions.
Now we look at the other forms of damages.
Actual damages
You grant actual damages for what?-adequate compensation of monetary loss. You grant moral
damages for what? Wounded feelings, but not all feelings will warrant moral damages, like right now
you got this sleepless nights.
Then what about nominal damages? You look at the nature of Nominal damages stated in the law.
You will find that you will grant it as a form of vindication. Probably why you call it nominal damages. In
order to recognize the right, to give the name to it. So to recognize or vindicate a right you grant moral
damages. The purpose there is not to indemnify the plaintiff for the loss but it is granted to honor the
existence of a right. Im sure this is very much familiar to you. You dismiss a person for a just cause
but without compliance with the due process. Example this person rape your child. Ahh. Dili lang ta
ana. Attempt against the life of the employer. just cause na dba? But what if there is no sort of
investigation you dismissed the person immediately because you are pretty sure and convinced that
he really wanted or attempted to kill you? Therefore you saidI dont want to see yo face eva
again!!!. So the Supreme Court said that you cannot just do that. So what they do is grant you nominal
damages to recognize that youve got procedural due process right that has been violated. They grant
you nominal damages to vindicate or recognize a right. You know of course that nominal damages
would vary if there is just cause but there is no compliance of due process, there is 30 thousand but if
authorized cause and non compliance of due process, 50 thousand. Why the difference? Who caused it
anyway. Nominal damages is there to recognize that the violation of your procedural due process. So
you see at once that nominal damages is what you give not to indemnify for the loss but to vindicate
or recognize a right.. The thing is, dont be jumping immediately because the grant of nominal
damages is suppose to preclude other protest concerning other further damages. Thats about it for
you. Because the adjudication of nominal damages shall preclude further contest upon the right
involve, and all accessory questions. So you grant that but the requirement of course as held by the
Supreme Court is that it must be shown that there is some right violated. So in that case it is not
enough that you show that there is loss because nominal damages is not awarded to indemnify loss.
Nominal damages you must be able to point out some right that has been violated. As held in this case
of Go vs IAC. Sc just restated what is the law- that you give it in order to vindicate or recognize a right
and not for the purpose of indemnifying for a loss.
What about Temperate?

Just to give you an idea. Supreme Court said that temperate is more than nominal but less than actual.
So31
that is how that is described that will somehow give you an idea when can temperate damages
maybe ordered. Because its more than nominal surely the purpose is indemnification because in
nominal the purpose is not to indemnify you from the loss but simply to recognize or vindicate a right.
Surely now the purpose is indemnification. Because its less than actual, its not adequate in the since
that it gives you back what you have exactly lost, all that you have lost monetarily. So when do you get
award for temperate damages? You award it when there has been loss but it has not been proven? I
can ask this in the multiple choice, it would be a good multiple choice question:
When do you award temperate damages?
a. When loss has not been proven
b. when the moral loss has not been established
c. when the monetary loss cannot be proven or
d. blabla.. so on and so forth.
It cannot be a. because you will be awarding the person without proving any loss. It has to be c.
because it cannot be by its nature be proven by evidence. What a poor choices I gave you. Hehe. Then
you just got to award temperate damages because there is monetary loss but it cannot by its nature
be proven by any evidence. Can you site an example? Funeral? You know in funeral you can baya
prove, because you can ask for receipts. The one that has been concededly as incapable of proof with
exactitude is damage upon business standing. You dishonored the check of the person as a result
people thought you are financially strapped, but in truth dili d i..to a little lang. it gives you damage or
injury in your business standing. It cannot be proved with exactitude as a requirement. This is lesser
than actual damage. That is when you award temperate damages. So you acknowledge there is loss
but you cannot prove it with certainty. But how come for unproven funeral expenses the Supreme
Court said there is an award of temperate damages because in this case its a matter of equity. Nindot
jud ni ang ma Supreme Court class da kai if pressed they will tell you its just a question of equity. This
is your case for example where injury to corporation is difficult to show with certainty in terms of
money. So what about funeral expenses, why is it granted? Because again the Supreme Court said its
just a question of equity. So unta funeral expenses is not a question even if its not proven that is the
reason why the Supreme Court granted it , based on equity. You grant temperate in lieu of actual
because its less than actual but more than nominal. So if asked the question of can it co-exist? -all of
us would say no, and all will be correct. Except that there is a peculiar, unique and strange case of
Ramos vs. ca ba to class , the one reported by doc? Umm. The rule is temperate should not co exist
with temperate.
But here the Supreme Court acknowledges that all the rules of actual and compensatory damages that
it cannot co-exist with temperate damages. Sc in this particular instance granted actual damages for
expenses actually proven and because she was paralyzed before she expired a case was filed. The
Supreme Court acknowledge that even before they decided it with finality, that you will be able to
incur expenses from this life long confinement from the wheel chair. So the Supreme Court because
the injury was chronic and continuing, even if as a rule it cannot co-exist, granted temperate damages.
Liquidated damages is that which is already agreed upon by the parties. so in case of breach you
already agreed of how much will be the indemnity. But the court may reduce it if it finds it excessive.
Exemplary is what you always file in your pleadings or compliant. What is its nature? Its not a matter
of right . 2234 says its up to the court to give it to you. The court will decide whether or not it will be
adjudicated. The purpose is what? If the purpose of moral damages is to restore you from the status
quo ante as a form of amusement or diversion, exemplary is a form of correction for public good. Sc
even those be awarded as a form of punishment by the party. Pero dba moral damages is not a form of

punishment. But exemplary damages is awarded when it is for correction of public good. But look, and
this
32is the most important, you grant it in addition. Thats why the Supreme Court cannot saywherefore judgment is rendered in favor of plaintiff and the defendant is directed to pay exemplary
damages of one hundred thousand, period. First the court must award some other kind of damages
before you can award exemplary damages. Its because law says you grant it in addition to. Like we
said nominal cannot co exist with temperate in this case there must be other damages that must coexist with temperate. 2234 says you must show first entitlement of temperate or compensatory which
is why in crimes exemplary damages is awarded with one or more aggravating circumstances .
In Quasi-delict you grant exemplary in case where there is gross negligence. In breach of contracts or
quasi-contracts-when there is wanton, fraudulent manner. Why are we bringing this up? Because dba
you get what you prayed for, in a legal sense ha dili moral or logical sense or something. hehe But the
court will only award you when you prayed for it in your complaint. This is what you get when you
prayed for it. You only get it when you prayed for it, because its granted for correction of common
good. Thus, if prayed for in case of quasi-contract, you have to prove that the defendant acted with or
there is wanton, fraudulent, reckless oppressive manner. Because this is your entitlement to exemplary
damages. For it is in the case of quasi-delict and you are asking the court to award you exemplary
damages you have to able to site that the defendant acted with gross negligence.
In the end we have to discuss this just the same. Damages may be mitigated or aggravated depending
on whetherdali kaau siya ma sign out noh?....certain circumstances are present. For example in
crimes when there are aggravating circumstances then it can be aggravated, with mitigating
circumstances it can lessen the award of damages. If its a case for example of quasi-delict damages
may be..(brownout)..ako nalang tiwas ani..if there is contributory negligence- same thing will happen,
it will mitigate.
I was just about to display on the board, nindot unta ni pang facebook but dili paman ni siya mo balik 2
hours pa man dba? Brownout. Sayang.
the award of damages should be in the in, lies in the discretion of the court but the court is called
upon to act, in the grant of damages, with balance restraint and measure objectivity
This is the last point. You remember the discussion on Judgment on the pleadings..which will happen if
the other party raises no.what?...no..issue.. but there is a qualifying word there. Justiciable? No. dha
mana sa political law.hehe raises no genuine issue. Now, if when it happen you ask the court to
obtain judgment on the pleadings.Be very careful because happy kaau ka you shorten the time but the
court says if you claim judgment on the pleadings you just forego damages. Do you think? Because
claim for damages must have to be proven. So be careful with agreeing to decide the case on the
pleadings. Authority there is in the case assigned. Thats it for us. Lets see each other on Monday. For
multiple choice from the beginning to end. So there would really be truth to the claim the 3 rd year
students are the most coerced students in the college of law. Live up to the reputation.
These are the following parts Atty. highlighted during the last meeting:
Herbosa vs. CA
Ordinarily, moral damages cannot be recovered in an action for breach of contract because
such an action is not among those expressly mentioned in Article 2219 of the New Civil Code.
However, moral damages are recoverable for breach of contract where the breach was wanton,
reckless, malicious or in bad faith, oppressive or abusive. The wanton and reckless failure and neglect
to timely check and remedy the video tape recorder by the PVE crew who are all employees of
respondent Solid Distributors, Inc. indicates a malicious breach of contract and gross negligence on the
part of said respondent in the discharge of its contractual obligations. Consequently, the petitioners

who suffered mental anguish and tortured feelings thereby, are entitled to an award of One Hundred
Thousand
Pesos (P100,000.00) as moral damages.
33
In the case of Go v. Court of Appeals we emphasized that (i)n our society, the importance of a
wedding ceremony cannot be underestimated as it is the matrix of the family and, therefore, an
occasion worth reliving in the succeeding years. Further, we reiterate the following pronouncements
therein where we also awarded moral damages on account of a malicious breach of contract similar to
the case at bar, to wit:
Considering the sentimental value of the tapes and the fact that the event therein recordeda
wedding which in our culture is a significant milestone to be cherished and rememberedcould no
longer be reenacted and was lost forever, the trial court was correct in awarding the appellees moral
damages albeit in the amount of P75,000.00 xxx in compensation for the mental anguish, tortured
feelings, sleepless nights and humiliation that the appellees suffered and which under the
circumstances could be awarded as allowed under Articles 2271 and 2218 of the Civil Code.
Ventenilla vs. Centino
Nevertheless, considering that nominal damages are not for indemnification of loss suffered
but for the vindication or recognition of a right violated or invaded; and that even if the appeal in civil
case No. 18833 had been duly perfected, it was not an assurance that the appellant would succeed in
recovering the amount he had claimed in his complaint, the amount of P2,000 the appellant seeks to
recover as nominal damages is excessive. After weighing carefully all the considerations, the amount
awarded to the appellant for nominal damages should not be disturbed.
Go vs. IAC
While it is true that denouncing a crime is not negligence under which a claim for moral
damages is available, still appellants are liable under the law for nominal damages. The fact that
appellee did not suffer from any loss is of no moment for nominal damages are adjudicated in order
that a right of the plaintiff, which has been violated or invaded by the defendant, maybe vindicated or
recognized and not for the purpose of indemnifying the plaintiff for any loss suffered by him (Article
2221, New Civil Code). These are damages recoverable where a legal right is technically violated and
must be vindicated against an invasion that has produced no actual present loss of any kind, or where
there has been a breach of contract and no substantial injury or actual damages whatsoever have
been or can be shown (Elgara vs. Sandijas, 27 Phil. 284). They are not intended for indemnification of
loss suffered but for the vindication or recognition of a right violated or invaded (Ventanilla vs.
Centeno, L-14333, January 28, 1961). And, where the plaintiff as in the case at bar, the herein appellee
has established a cause of action, but was not able to adduce evidence showing actual damages then
nominal damages may be recovered (Sia vs. Espenilla CA-G.R. Nos. 45200-45201-R, April 21, 1975).
Consequently, since appellee has no right to claim for moral damages, then he may not likewise be
entitled to exemplary damages (Estopa vs. Piansay, No. L-14503, September 30, 1960). Considering
that he had to defend himself in the criminal charges filed against him, and that he was constrained to
file the instant case, the attorney's fees to be amended (sic) to plaintiff should be increased to
P3,000.00.
Premiere vs. CA
In some States of the American Union, temperate damages are allowed. There are cases where
from the nature of the case, definite proof of pecuniary loss cannot be offered, although the court is
convinced that there has been such loss. For instance, injury to ones commercial credit or to the
goodwill of a business firm is often hard to show with certainty in terms of money. Should damages be
denied for that reason? The judge should be empowered to calculate moderate damages in such
cases, rather than that the plaintiff should suffer, without redress from the defendant's wrongful act.
Republic vs. Tuvera
The allowance of temperate damages when actual damages were not adequately proven is
ultimately a rule drawn from equity, the principle affording relief to those definitely injured who are

unable to prove how definite the injury. There is no impediment to apply this doctrine to the case at
bar,
34which involves one of the most daunting and noble undertakings of our young democracythe
recovery of ill-gotten wealth salted away during the Marcos years. If the doctrine can be justified to
answer for the unlawful damage to a cargo truck, it is a compounded wrath if it cannot answer for the
unlawful exploitation of our forests, to the injury of the Filipino people. The amount of P1,000,000.00 as
temperate damages is proper.
Ramos vs. CA
Our rules on actual or compensatory damages generally assume that at the time of litigation,
the injury suffered as a consequence of an act of negligence has been completed and that the cost can
be liquidated. However, these provisions neglect to take into account those situations, as in this case,
where the resulting injury might be continuing and possible future complications directly arising from
the injury, while certain to occur, are difficult to predict.
XXX
In other words, temperate damages can and should be awarded on top of actual or
compensatory damages in instances where the injury is chronic and continuing. And because of the
unique nature of such cases, no incompatibility arises when both actual and temperate damages are
provided for. The reason is that these damages cover two distinct phases.
As it would not be equitable and certainly not in the best interests of the administration of justice
for the victim in such cases to constantly come before the courts and invoke their aid in seeking
adjustments to the compensatory damages previously awarded temperate damages are
appropriate. The amount given as temperate damages, though to a certain extent speculative, should
take into account the cost of proper care.
*THANKS TO THOSE WHO HELPED IN MAKING THIS TRANSCRIPTION! GOD BLESS EVERYONE!*

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TORTS TRANSCRIPTION for finals RM403

NOTES from ate rhen of September 2, 2010:

Vicarious Liability of Teachers