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Malaysian law is governed by the Civil Law Act 1956
Damages for PI
General (non-pecuniary loss)
Special (pecuniary loss)
Pain and suffering
loss of amenities
Loss of earnings
Out of Pocket Expenses
Pain and suffering
Pain and suffering are subjective, and are impossible to measure in term of money. Nevertheless, a plaintiff is entitled to recover for his pain and suffering, actual and prospective, resulting from the defendant·s conduct. This will include his physical pain and suffering, nervous shock and any other psychiatric symptoms but not mere sorrow or grief. The court has to take into consideration the age of the plaintiff as well as the nature and gravity of his injuries. If the plaintiff is an infant, the court may take into consideration that wounds and broken bone heal faster and that the pain and suffering may not last for a substantial length of time.
Thinking point? ` Can a plaintiff who is unconscious or in a state of coma claim for pain and suffering? .
Chia Kok Bin (1981) . .After the accident. Thangavelu v. Held: there was an element of pain and suffering as the injured child was not totally unconscious after the accident. the plaintiff·s son was in a state of coma but was not totally unconscious until he died.Cases ` ` ` In Wise v Kaye (1962) ² a victim who had been unconscious continuously since the accident was presumed to have experienced nothing of her injuries and thus received nothing under this head (pain and suffering).
the court in assessing damages in respect of pain and suffering caused by the injury. loss of expectation of life could be claimed as a separate heading. shall take into account any suffering caused or likely to be caused by awareness that this expectation of life has been so reduced. Presently the law is stated in section 28A(2) . . If the plaintiff·s expectation has been reduced by the injury. Before the amendment Civil Law Act in 1984.Loss of expectation of life ` ` ` ` ` Another factor to be considered in deciding damages for pain and suffering is the loss of expectation of life. No damages shall be recoverable in respect of any loss of expectation of life caused to the plaintiff by the injury.when assessing damages in respect of personal injury.
in particular impairment of the senses. This will include for example inability to run or to walk. . The award varies depending on how the Plaintiff enjoyed his life. or to play football.Loss of amenities ` ` ` ` ` Loss of amenity essentially means loss of enjoyment of life.g. For e. The plaintiff is entitled to damages for the inability to enjoy life in various ways. inability to enjoy sexual function or marriage. piano. Plaintiff who are in a condition knows as PVS (persistent vegetative state) or in coma will normally receive a very high award for loss of amenity. if the plaintiff was good in sport. then any injury to his arms or leg might entitled him to get a higher award than the average plaintiff.
the plaintiff must be aware of the sensation of pain before he can recover damages.000 for loss of amenity. . In Wise v Kaye ² the court awarded the plaintiff $15.Lord Scarman distinguishes between damages for pain and suffering and damages for loss of amenities. In the case of pain and suffering. damages will be awarded irrespective of whether the plaintiff was aware of it or not since damages are awarded for the fact of deprivation.Cases ` ` In Lim v. Camdan Health Authority (1980) . Loss of amenities.
. She suffered severe injuries resulting in complete paralysis in her four limbs. Siti Rahmah (1990) ` ` The plaintiff a trainee teacher who was then 23 years old was knocked down by a motorcar driven by the 1st defendant.000 general damages for pain and suffering and loss of amenities.Marappan & Anor v. Court awarded her RM180.
r Siew Keng v.000 for all her ugly scar.Injury itself ` ` Injuries are itemized and particular sums are awarded for these on the basis of precedents. a scar would be worth a certain sum and so on. Eog Thiang Lai (1990) 1 CLJ 488 . loss of an eye a certain figure.The trial judge awarded RM45. RM 15. .000 for the multiple injuries to the plaintiff·s leg.000 for the fractures to the radius and ulna and RM14. for example a broken arm will be worth a certain amount.
the husband of an injured woman is entitled to claim for lost of consortium ² loss of comfort. The court awarded the husband RM3. She hated her husband and denied him sexual relations. her left leg had to be amputated.Loss of consortium ` ` ` Under the common law.A woman was knocked down by a bus. society and services of the wife.000 for loss of his wife services. As a consequence of her injuries. she developed a personality change. Bas Mini Muhibbah v. Abdullah Salim (1983) . .
Pecuniary loss ` ` Pecuniary loss is basically a financial loss or material loss incurred as a result of death or injury. It is the loss that can be quantified in financial terms. Pecuniary loss Loss of earnings Medical expenses Nursing care Other expenses .
Future loss of earnings or prospective earnings are awarded for real assessable loss i. The risk must be real not speculative or fanciful. It must be proved by the evidence and not by mere speculation. it arises where there is a residual risk that the plaintiff might be thrown out of work altogether at some future date. Syed Agil Barakbah in the Federal Court stated that there is a different between loss of future earnings and loss of earning capacity. loss that is capable of assessment at the date of the trial. In loss of earning capacity. .Loss of earnings ` ` Loss of earnings can be divided into two ² loss of future earnings and loss of earning capacity. In Ngooi Ku Siong & Anor v Aidi Abdullah  1 MLJ 30.e.
The present law in Malaysia is governed by section 28A(2)(c).Loss of future earnings ` ` ` The plaintiff is entitled to be awarded the amount that he would have earned in the future and which he has been prevented from earning by the injury. This section provides certain restrictions on the claim for loss of future earnings ² which has the effect of limiting the size of awards for certain types of plaintiff. . This new law has been introduced by 1984 amendment to the CLA which came into effect on 1st October 1984.
The requirements Must be below the age of 55 years Must be in good health at the time of the injury Must be receiving earnings by his own labour or gainful activity at the date of his injury .
The respondent was 59 years old at that time. especially professionals such as judges. This requirement may be criticized for it failure to take into consideration the fact that many senior citizens in Malaysia continue working at the age at 55 or over. lawyers. doctors and academics. Bayeh a/l Belatat (1990) The respondent was injured in an accident caused by the appellant·s negligence. Tan Bin Hairuddin v. The accident occurred on 13 August 1985. .This award was set aside by the High Court.Below the age of 55 ` ` ` ` If the plaintiff was aged 55 or over ² he cannot claim for loss of future earnings.560 as pre-trial loss of earnings. The trial judge awarded him RM7.
there is always a presumption that the plaintiff was in good health. The court also held that in every accident case where it has been established that the plaintiff has been employed immediately before the accident. On appeal the court held that the requirement of ¶good health· is satisfied when there is no challenge by the defendant either in the pleadings or in cross-examination.In good health ` ` ` Osman Effendi Mahmud & Anor v Mohd Noh Khamis ² the trial judge rejected the plaintiff·s claim for loss of future earnings on the ground that the plaintiff had not adduced evidence that he had been in good health before the accident. .
. This provision is intended to exclude an unemployed plaintiff whether young or old.Receiving earnings ` ` ` Section 28A(2)(c) provides that the plaintiff must be receiving earnings by his own labour or other gainful activity before he was injured. However the earnings must not be from illegal sources.
Cases ` ` Marappan v. Siti Rahmah Ibrahim . . Held: The training undertaken by the respondent to enable her to become a teacher was an activity which has resulted in a gain of RM345 per month for her and this sum of money was therefore earnings contemplated by that section.One of the issue raised on appeal before the Supreme Court was whether she was entitled to loss of future earning within the meaning of Section 28A(2)(C ) of the Civil Law Act in view of the fact that at the time of the accident she was then receiving RM345 a month as allowance for being trained as a teacher.
pay leave at the time of the accident. but as a result of her injuries she became an invalid.Contrast« ` ` Dirkje Peiteraella Helma v. She was a healthy person aged 25 at that time of the accident. She was on no. Noor (1991) . Mohd. . She was on holiday in Malaysia when she was injured in an accident. The Supreme Court in interpreting Section 28A(2)(c) held that the plaintiff who was on unpaid leave at the time of the injury was not entitled to claim for loss of future earnings as she was not receiving any earnings at the time of her injury.The appellant was a qualified registered nurse from Holland.
Earnings must not be from illegal sources ` ` ` Lee Seng Kee v Sukatno  4 AMR 405 ² the High Court disallowed damages for loss of future earnings to a plaintiff. Reason ² The plaintiff was initially working legally. On the other hand. He had a valid work permit but unfortunately expired four months before the accident. in Tay Lye Seng & Anor v Nazori bin The & Anor  3 AMR 3145 ² the Court of Appeal allowed the plaintiff·s claim for loss of earnings although he was working illegally in Singapore after his work permit had expired four months earlier. . a 38 year old Indonesian illegal worker.
Jackson Lim (1999) .¶in assessing the loss of future earning the courts will not take into consideration the prospects of future increases in the plaintiff·s earning. .The respondent was and still in an employee of Sarawak Shell.No consideration ² prospect of future increases ` ` Section 28A(2)(c)(ii) .· Chang Ming Feng v. After that he resumed work. He involved with an accident and was on medical leave for 4 months. but he could only perform light duties and was not able to do offshore works any more as an offshore production technician ² would earn offshore allowance.
009 Allowance RM 247 Total RM2. The increase in plaintiff earnings is actual not prospective.256 The Court awarded the plaintiff the different between his previous salary and current salary.657 Offshore allowance RM 775 Total RM2.432 After accident Basic salary RM2.Cont« ` Plaintiff·s earnings before the accident: Basic salary RM1. .
petrol. transport etc. meals and refreshment while at work. maintenance of vehicles. Another compulsory deduction is income tax. . Living expenses refer to expenses incurred in earning the particular income ² e. EPF and insurance premium. In Chang Chong Foo & Anor v Shivanathan a/l Perumal  1 AMR 119 ²The Supreme Court deducted RM190 per month (petrol and meals) from the plaintiff·s monthly salary of RM310.Deduction of living expenses ` ` ` ` The court will deduct expenses from the loss earning of a living plaintiff or the deceased (section 28A(2)(c)(iii)).g.
(b) Any pension or gratuity. ` . which has been or will or may be paid as a result of the personal injury. or (c) Any sum which has been or will or may be paid under any written law relating to the payment of any benefit or compensation whatsoever in respect of the personal injury.Non-deductable amount Section 28A(1) provides ¶in assessing damages recoverable in respect of personal injury«.there shall NOT be taken into account ² (a) Any sum paid or payable in respect of the personal injury under any contract of assurance or insurance..
250.000 which the appellant recovered from an insurance company (a general accident policy taken by the employer for the benefit of the appellant and other employees).250 but the trial judge ordered the deduction of RM300.Cont« ` ` Ward v MAS (1991) ² The appellant was a pilot. Appellant appealed to the Supreme Court. He was awarded the total amount of general and special damages RM301. He suffered serious injury as a result of an emergency crash landings. . Held: Such insurance benefit cannot be deducted from the amount of damages awarded to the appellant. Therefore the appellant was entitled to get the full sum of RM301.
RM24.000 ² RM10.g.The calculation ` Section 28A(2)(d) introduced a new method of calculation called ¶fixed multiplier method·. 1st step Multiplicand (Nett Annual Loss) 2nd step multiplier Future loss of earnings ` ` Gross annual loss (GAL) ² Compulsory deduction + living expenses = Nett Annual Loss (multiplicand) E.000 = RM14.000 .
a multiplier for 40 years old plaintiff is 55. Multiplier A person who was at the age of 30 years or below = 16 ` Age between 31-54 = 55 ² current age\2 E.40\2 = 7.The Multiplier ` Multiplier is a figure which represent a number of years b which the multiplicand must be multiplied in order to calculate the future losses.5 .g.
. Housecraft v.200 for the loss of future care. Nursing care also includes the cost of paying a reasonable sum to a husband.the upper limit should be the commercial rate of hiring someone to perform the services and subject to this. helper etc. based on multiplicand of RM380 per month and a multiplier of 16 years. In Marappan v. Siti Rahmah ² The plaintiff was awarded the sum of RM67. to make reasonable recompense to the relative.Nursing care ` ` ` ` Nursing fees for the future can be claimed for example the cost of hiring a private nurse. Burnett (1986) . wife or other person who gives up work to give fulltime care to the plaintiff. the sum should be one which is sufficient to enable the plaintiff among other things.
` .Medical expenses A plaintiff is entitled to any reasonable expenses he may have incurred from the date of injury up to the date of trial and also the expenses he may incur in future. For treatment at a private hospital. (a) Government hospital v private hospital? (b) Local treatment v overseas? ` ChaiYee Chong v Lew Thai (2004) ² it was held that the plaintiff is entitled to claim in full for medical cost at a government hospital. the plaintiff must prove that he is justified to seek such treatment and the amount is reasonable. ` Issues on claim for medical expenses.
g. or The treatment at the government hospital though available. lack of trained doctor). . Romuloo v Tan Seng Kee ² the court declared that to get the best medical treatment is a basic constitutional right of every citizen of this country. In this case the court allowed the plaintiffs claim for medical expenses at Singapore. or The treatment is available ² but not available within a reasonable period considering the urgency of the treatment.Justifications (a) (b) (c) That particular treatment is not available at the government hospital. is grossly inadequate (e.