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Sumarni

v Yow Bing Kwong & Anor



Issues:

1. The difference between loss of earnings and loss of future earnings
2. Requirement of good health

Loss of earning capacity vs Loss of future earning

- Was used interchangeably in both the plaintiff’s pleadings and in the High Court
- James Foong JCA took the opportunity to clarify that they were distinct relying on
Ngooi Ku Siong & Anor v Aidi Abdullah
o Loss of earnings was a pre trial loss i.e. Actual amount of loss of earnings lost
by a plaintiff as a result of the accident – claimable as special damages
o Loss of future earnings was a post trial loss claimable as general damages
awarded for prospective earnings awarded for real assessable loss

- At trial the plaintiff claimed for loss of future earnings of RM67,200 [(RM350 per
month x 12) x 16 years]
- This was rejected by both the trial court and the High Court on the basis that:
o The plaintiff was a foreign worker with only 6 months left on her work
permit;
o A foreigner could only work in Malaysia with a valid work permit;
o The courts were of the view that the plaintiff was not entitled to loss of
future earnings because there was no guarantee that her work permit would
be renewed and there was no evidence that she had any sort of permanent
employment in her home country.
o Her claim therefore was based on speculation and therefore too remote.
o The plaintiff was however entitled to actual loss of income she sustained –
i.e. The 6 months she was not paid as a result of her injuries during which
time her permit was valid.
o Hence an award of RM2100 was awarded as loss of earnings

- the Court of Appeal had to consider whether the plaintiff was entitled to loss of
future earnings
o James Foong JCA therefore dis not disturb the finding of the lower courts
with regards to the RM2100 awarded on the basis that that award was made
for loss of earning and as that was a distinct claim from loss of future
earnings; and as there was clear evidence that the loss was incurred by the
plaintiff, - the award was appropriate.

The requirement of good health

o Focusing then on the issue of whether the plaintiff was entitled to loss of
future earnings – the Court of Appeal dismissed the claim on gerunds that:
§ before a claim can be brought the requirements of Section 28A had to
be proved.
§ The courts were of the opinion that as the plaintiff had not adduced
evidence to prove that she was in good health but for the injury – a
precondition of the claim was not satisfied.
§ It was not possible for the requirement of good health to be implied
merely on grounds
§ The court rejected the plaintiff’s counsels contention that as the
matter was not raised at trial, there was a presumption of good
health.
§ The onus was on the plaintiff to fulfill the prerequisite.
§ Further, the court agreed with the lower courts that to claim the
plaintiff’s loss must be real, assessable, capable of proof and not
merely speculative.
§ The court was of the opinion that the plaintiff had failed to prove with
certainty that she would suffer real substantive loss in the future.

o An alternative award of loss of earning capacity was however made as the
courts were satisfied that the plaintiff’s injuries were such that she was likely
to receive less earnings in the future than what she obtained before the
accident. There was a real and substantial risk. An award of RM20,000 was
made.
Commentary

- The cases of Osman Effendi v Mohd Noh and Loh Hee Thuan v Mohd Zain Abdullah
were not brought to the attention of the Court of Appeal – which is unfortunate as in
both these cases it was held that in every accident case where it has been
established that the plaintiff had been gainfully employed immediately before the
accident, there was always the presumption that the plaintiff was in good health and
that his claim for loss of future earnings was directly attributable to the injuries
sustained in the accident.

- Further, in Loh Hee Thuan where the plaintiff had several ailments, the court ruled
that there was sufficient evidence to show that the plaintiff had led a normal life
before the accident and that his ailment were well under control.

- Arguably, this appears to be a more sensible approach as many people have all sorts
of ailments but go on to lead normal productive lives. In fairness, the criteria ought
to be that so long as the plaintiff’s ability to work was not hindered by any ailment
he may have had – he should be treated as being in good health.

- However, this does not distract from that fact that medical evidence of good health
is a fundamental requirement. It is necessary to rule out any pre-existing condition
that the plaintiff may have which would affect his ability to earn in the near future.
For example, if the painting had been diagnosed with cancer, progressive
osteoarthritis, Alzheimer's disease etc … his ability in the future would be impaired
by the disease. This would impact a claim for loss of future earnings. (See: Jobling v
Assciated Daries)

- The decision on Osman Effendi, Loh Hee Thuan and Sumarni however can be
reconciled. The former cases can be viewed as suggesting the meaning of good
health – i.e. free of any ailment which would render the plaintiff incapable of work;
whilst the later case deals with the evidential burden of proving good health.

- Sumarni’s case therefore dispels with the presumption of good health

- However, in the case of Mohd Suffian bin Mohd Nor v Ng Eng Cheng (2010) the
defendant argued relying on Sumarni’s case and the earlier case of Looi Gnan Peng v
Bay Tong Hui that as the plaintiff had failed to prove good health his claim for loss of
future earnings should be barred.

- The trial court was however satisfied that the plaintiff was in good health based on
evidence of his employers that the plaintiff was employed as a welder with them and
had worked overtime 2 to 3 hours daily.

- It is respectfully submitted that in Sumarni’s case the fact that the plaintiff was
employed as a maid before the accident ought to have been sufficient to establish
good health as being a foreign worker she had to pass compulsory health checks
each year for the first 3 years of employment for work permit to be renewed – the
fact that she had a valid working permit would hence suggest that she had been
given a clean bill of health.

- The outcome of Sumarni’s case however can be reasoned. The finding of the courts
that she had failed to prove a real, assessable loss of earnings in the future is not
misplaced. Many Indonesian maids have held no jobs before they coming out to
work as domestic maids and many go back to a domestic life upon completion of
their contract. Very often jobs are taken up as a temporary stint and not as a career,
hence in the absence of any evidence that the plaintiff had a life of work planned for
the future which was cut short by the accident, the courts were right to refuse her
claim for loss of future earning.

Munita Kaur
MA(Mancheser) LLM(Malaya) LL.B (Hons) London CLP