Awarding temperate damages in lieu of actual damages

Dear PAO,

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

Sincerely yours,

Eulogio

Dear Eulogio,

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

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

xxx xxx xxx

Since it was established that Dionisio lost his right arm, temperate damages in lieu of actual damages
for loss/impairment of earning capacity may be awarded in his favor. Under Article 2224, [t]emperate
or moderate damages, which are more than nominal but less than compensatory damages, may be
recovered when the court finds that some pecuniary loss has been suffered but its amount cannot, from
the nature of the case, be proved with certainty.

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

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

In Pleno v. Court of Appeals, we sustained the award of temperate damages in the amount of
P200,000.00 instead of actual damages for loss of earning capacity because the plaintiffs income was
not sufficiently proven.
We did the same in People v. Singh, and People v. Almedilla, granting temperate damages in place of
actual damages for the failure of the prosecution to present sufficient evidence of the deceaseds
income.

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

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

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