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THERE ARE TWO MAIN ISSUES TO BE PRESENTED BEFORE THIS

HONOURABLE COURT WHICH ARE:

1) THE PREVIOUS CLOSE TIE OF LOVE AND AFFECTION BETWEEN


SALMAH AND BORHAN WAS IRRELEVANT TO THE CLAIM

2) SALMAH HAD NOT WITNESSED THE IMMEDIIATE AFTERMATH

FOR THE FIRST ISSUE, THE APPELLANT SUBMITS THAT

1) THE PREVIOUS CLOSE TIE OF LOVE AND AFFECTION BETWEEN SALMAH


AND BORHAN WAS IRRELEVANT TO THE CLAIM

BASED ON 3 GROUNDS:

1. THE NEED TO ESTABLISH ELEMENT OF REASONABLE FORESEEBILITY

2. MARRIAGE RELATIONSHIP DOES NOT NECESSARILY SATISFY TEST OF


REASONABLE FORESEEABILITY

3. FAILURE OF SALMAH TO ESTABLISH ELEMENT OF REASONABLE


FORESEEABILITY CEASES HER RIGHT TO CLAIM FOR SECONDARY
VICTIM

FOR THE FIRST GROUND, THE APPELLANT SUBMITS THAT THERE IS A


NEED FOR THE CLAIMANT TO ESTABLISH ELEMENT OF REASONABLE
FORESEEBILITY IN ORDER TO SUCCEED IN HER SECONDARY VICTIM CLAIM.

IF I MAY REFER THIS HONOURABLE COURT TO THE CASE OF ALCOCK v CHIEF


CONSTABLE OF THE SOUTH YORKSHIRE POLICE (WHICH HAD BEEN DECIDED
IN UNITED KINGDOM HOUSE OF LORD, DECEMBER 1991). IN THIS CASE, THE
COURT HELD THAT CLAIMANT COULD NOT RECOVER DAMAGE AS A
SECONDARY VICTIM, UNLESS AND UNTIL HE SATISFY TEST OF REASONABLE
FORESEEABILITY THAT HE WOULD BE AFFECTED BY PSYCHIATRIC ILLNESS
BECAUSE OF HIS CLOSE RELATIONSHIP OF LOVE AND AFFECTION WITH THE
ACCIDENT VICTIM.

APPLYING TO OUR PRESENT CASE, SALMAH AS THE CLAIMANT IS OBLIGED TO


SATISFY THE REASONABLE FORESEEABILITY TEST.

THUS, IN RECOVERING DAMAGE AS A SECONDARY VICTIM AND IMPOSING


LIABILITY TO THE APPELLANT, SALMAH OWES THE FIRST-INITIAL DUTY TO
PROVE THAT SHE HAS A CLOSE RELATIONSHIP WITH BORHAN, THE PRIMARY
VICTIM IN THIS CASE, TO THE EXTEND THAT SHE WOULD BE AFFECTED BY
PSYCIATRIC ILLNESS DUE TO HIS INJURY.

HAVING FINISH WITH THE FIRST GROUND, I SHALL MOVE ON TO THE SECOND
GROUND.

FOR THE SECOND GROUND, THE APPELLANT SUBMITS THAT SALMAH AND
BORHAN MARRIAGE RELATIONSHIP DOES NOT NECESSARILY SATISFY THE
TEST OF REASONABLE FORESEEABILITY.

IF I MAY REFER THIS HONOURABLE COURT TO THE CASE OF MCLOVGHLIN v


OBRIAN (WHICH HAD BEEN DECIDED IN UNITED KINGDOM HOUSE OF LORD,
MAY 1982). IN THIS CASE, THE COURT GRANTED THE CLAIMANTS
APPLICATION FOR SECONDARY VICTIM BY DISCRETIONALLY HOLDING THE
PRESUMPTION THAT SHE HAD ESTABLISHED A CLOSE TIE OF LOVE AND
AFFECTION WITH THE INJURED VICTIM, AS BEING HIS WIFE.

HOWEVER, IN THE LATER CASE OF ALCOCK v CHIEF CONSTABLE OF THE


SOUTH YORKSHIRE POLICE (WHICH HAD BEEN DECIDED IN UNITED KINGDOM
HOUSE OF LORD, DECEMBER 1991), THE COURT RULED THAT MERELY
ENGAGED TO A MARRIAGE RELATIONSHIP DID NOT ILLUSTRATE ITS
CLOSENESS. IT IS REBUTTABLE. THE CLOSENESS OF THE TIE WOULD HAVE
TO BE PROVED BY THE CLAIMANT.
APPLYING TO OUR PRESENT CASE, THOUGH SALMAH IS PRESUMED TO BE
CLOSE TO BORHAN PURSUANT TO THEIR MARRIAGE, IT IS HOWEVER A
REBUTTABLE SUBJECT. MERE MARRIAGE DOES NOT CONFER AN AUTOMATIC
SATISFACTION TO THE ELEMENT OF REASONABLE FORESEEABILITY. A
MARRIAGE RELATIONSHIP DOES NOT NECESSARILY SATISFY THE TEST OF
REASONABLE FORESEEABILITY.

THUS, SALMAH REMAINS IN THE STATUS QUO OF HOLDING THE REQUIRED


BURDEN TO PROVE HER CLOSE TIE OF LOVE AND AFFECTION WITH BORHAN.

HAVING FINISH WITH THE SECOND GROUND, I SHALL MOVE ON TO THE


THIRD GROUND.

FOR THE THIRD GROUND, THE APPELLANT SUBMITS THAT FAILURE OF


SALMAH TO ESTABLISH ELEMENT OF REASONABLE FORESEEABILITY CEASES
HER RIGHT TO CLAIM FOR SECONDARY VICTIM

IF I MAY REFER THIS HONOURABLE COURT AGAIN TO THE CASE OF ALCOCK v


CHIEF CONSTABLE OF THE SOUTH YORKSHIRE POLICE (WHICH HAD BEEN
DECIDED IN UNITED KINGDOM HOUSE OF LORD, DECEMBER 1991), THE
COURT HELD TO DISMISS THE CLAIM TO SECONDARY VICTIM BY A BROTHER
TO AN INJURED PERSON, ON THE BASIS THAT HE FAILED TO PROVE ON THEIR
CLOSE TIE OF LOVE AND AFFECTION.

APPLYING TO OUR PRESENT CASE, AS SALMAH AND BORHAN HAD


SUBMITTED THEIR APPLICATION TO DIVORCE UNDER SECTION 47 OF THE
ISLAMIC FAMILY LAW (FEDERAL TERRITORIES) ACT 1984 IN SEPTEMBER 2015;
THIS SHALL BE A CLEAR REBUTTAL TO THE PRESUMED LOVE AND AFFECTION
TIE BETWEEN THE TWO. NO REJECTION TO THE DIVORCE WAS RAISED. THE
REBUTTAL IS FURTHER CORRABORATED WITH THE FACT THAT THE DIVORCE
DECISION WAS TAKEN INTO CONSIDERATION BY BOTH SPOUSES AFTER LONG
YEARS OF SPOUSAL DISAGREEMENTS, MARITAL DIFFICULTIES, SEPARATE
LIVING PLACES, AND NO EFFORT HAS BEEN TAKEN AS TO RESTORE THEIR
MARRIAGE, UP TO THIS MOMENT.

THUS, SALMAH IS DEEMED TO HAVE FAILED ESTABLISHING HER CLOSE TIE


WITH BORHAN. THE MENTIONED SITUATIONS DID NOT SHOW ANY SIGN TO
CLOSE RELATIONSHIP BETWEEN SALMAH AND BORHAN, BUT TO ONLY
DISCLOSE HOW DISTANT IT IS.

THEREFORE, SALMAH CANNOT IMPOSE LIABILITY AGAINST APPELLANT AND


CLAIM FOR SECONDARY VICTIM. THERE IS NO NEXUS BEEN PROVEN THAT
SALMAH SUFFERED PSYCHIATRIC ILLNESS BECAUSE OF HER CLOSE
RELATIONSHIP OF LOVE AND AFFECTION WITH THE INJURED BORHAN.

HAVING FINISH WITH MY FIRST ISSUE, DO YANG ARIF NEED ANY


CLARIFICATION? ------ MUCH OBLIGED.

THEREFORE, THE APPELLANT SUBMITS THAT

1) THE PREVIOUS CLOSE TIE OF LOVE AND AFFECTION BETWEEN SALMAH


AND BORHAN WAS IRRELEVANT TO THE CLAIM

BASED ON 3 GROUNDS:
1. THE NEED TO ESTABLISH ELEMENT OF REASONABLE FORESEEBILITY

2. MARRIAGE RELATIONSHIP DOES NOT NECESSARILY SATISFY TEST OF


REASONABLE FORESEEABILITY

3. FAILURE OF SALMAH TO ESTABLISH ELEMENT OF REASONABLE


FORESEEABILITY CEASES HER RIGHT TO CLAIM FOR SECONDARY
VICTIM