SPECIAL DAMAGES
Actual pecuniary loss between
date of accident and trial
1.Medical expenses
Issue 1 – unnecessary
expenses – YCH v kajima taise
Issue 2 – medical expenses at
Private hospital vs GH
(cases : CYC, Yaakub Foong, Tang
Sia Bak 1/3 rule)
Issue 3 – discharging against
medical advice
Tan Ah Kau / Wan Norsiah
Issue 4 – traditional treatment
Seah Yit Chen
1.reliable advice
2.expectation of benefit
3.thoughtful consideration
Issue 5 – overseas treatment
Angela Soh
Yeap Cheong Hock (Y overseas?
Cheaper here.)
Issue 5 – treatment paid by
other
gratuitously/sympathetically
Lim Kiat Boon (Lah Kenapa Boss
bayar)
Issue 6 - Medical bill paid by
insurance
Sin Hock Soon Transport Sdn
Bhd v Low King Ban: In the
assessment of
damages, insurance is non-
deductible.
- Sec. 28A(1)(a), Civil Law Act
2.Travel expenses
Issue – family $ to visit
Abdul
Hamid/Nadarajan/Wong
Kong
A . PERSONAL INJURY CLAIMS
3.extra nourishing foods
YCH v Kajima Taise - not
necessary, cannot claim
Norizan - hv receipt as proof, can
claim
Inas – every father will surely gv
kids good food, so nah
4. damage to vehicle
Issue 1 – repair cost reasonable
onot?
Issue 2 – diminution of car value
can claim onot? Darbishire v
warren / chin hooi nan
Issue 3 – total loss
Issue 4 – consequential loss
5. goods
Issue 1 - damage to goods
Measure for compensation :
amount reduced due to the
damage (repair $ + diminution $ +
any consequential loss)
Issue 2 - destruction of goods
Market value - sufficient proof for
such value, o/wise got nominal
damages only
6. loss of personal belongings
Evidence u had the stuff before it
was lost in the accident
Parvathy case : Jewelleries &
indian wedding
REMEDIES IN TORT
7. nursing care
Liong Thoo v sawiyah case - Ct award $
for MIL who provides gratuitous care to
Pf
Yang Salbiah – award cost of care & cost
of future care (or Lim Poh Choo case)
Calculation refer formula
8. prosthesis/wheelchair etc
Issue : Duty to mitigate – cheap cheap
only (reasonable)
Kasirin Kasmani
In addition to the cost of artificial limbs
tu, plaintiff may oso claim
1. Maintenance $
2. Spare parts
3. Travel $ for fitting new
one/service of the prosthesis
These three were awarded in Azman
Kasri case
Ramachandran case – court allow
Loss of Earnings - pre-trial pecuniary loss/Plaintiff’s actual loss
most advanced prosthetic – put pf as
Rules :
near to how he was b4 accident
Calculation refer formula
9. miscellaneous claims
- cost of training n edu of caregiver
(Inas Faiqah)
- disposable diapers (Inas Faiqah)
- house modification
10. Interest
From date of accident -> date of trial
Section 11 CLA
B. FATAL ACCIDENT CLAIMS – at page 2
GENERAL DAMAGES 3 rules
1. awarded in one lump sum
2. Itemization of body parts injured
3. if separate amounts are awarded for several related injuries, there should
be scaling down of award for several injuries to prevent overcompensating
GD for pecuniary loss Loss of Future Earnings (future pecuniary
loss)
GD for non pecuniary loss
Pf plaintiff was working, then accident =
lost his job & no chance of getting another job
Sec. 28A(2)(c)(i) (ii) CLA
Earning – legal
Pain & Suffering Loss of Amenities - Minus living expenses – 28A (2)(C)(iii)
Conscious onot is
Principle : must be Minor/unemployed = no earning
immaterial
aware of
Lim Poh Choo /Low Ee Ee
pain/conscious
Thangavelu – Loss of Earning Capacity
Objective loss of bodily
comma but respond -Risk of $ loss due to diminution of
faculties
= can feel pain chances of getting work/paid as b4
Nor Syamimi / Saniah
-Moeliker v A Reyrollce & Co Ltd
- minor/unemployed cannot claim
(Chandu Nair) (Dirkje Pieternella)
Loss of consortium – old common
- Azizi Amran case : can claim
law no more
1. Pf’s actual earning (net income, dah tolak living exp & income tax)
2. Legal income/capable being legitimized (Nazori Teh / Chua Kim Suan)
3. Time frame – accident date & retirement age
4. S 28A (2)(c)(i)(ii) CLA – Court assess the damages on 3 considerations,
 age – retirement age (Tan Hairuddin) (observe pre/post amend)
 court only take into consideration earnings AT THE TIME of the accident
Dirkje Pieternella – on unpaid leave = nope, not earning at the time of the accident
Marappan v siti rahmah – expectation of income = nope
 Living expenses are deductible from income (out of pocket exp)
Tey Chan & Anor case : court will deduct expenses incurred in earning an income
Alt case : chandu nair – minor who wasn’t earning $ – cannot claim loss of future earning
5. The calculation – authority : section 28A (2)(d) CLA
 B. FATAL ACCIDENT CLAIMS
DEPENDENCY CLAIMS ESTATE CLAIMS

2nd element : Suffered loss of support

1.LOSS OF SUPPORT - Section 7 (1) CLA
$ loss – amount that deceased gv his dependants during lifetime
1st element : Dependent w/in s7(2), s 7(11) CLA
Husband, wife , (grand)parents, (grand)child
1. Adopted child : zulkifli ayob –cannot unless legally
adopted child
2. Posthumous child : Mariyayee & Anor v Nadarajan
3. Wife married under customary marriage oso can.
(Janaki a/p Chellamuthu / Joremi bin Kimin / Married
Women & Children Act def of ‘married women’ inc
women undergone custom.marriage)
4. Siblings cannot – Chan Chin Min
5. Divorced wife cannot, but wife who deserts husband
prior his death can claim if able to show significant
prospect of recon – Payne Collins v Taylor Woodrow
Section 8 (2)
Special damages – financial loss suffered before death
1. court only kira $ which directly benefit to claimant, not someone - Loss of earnings from date of accident until date of death
- All other claims for financial expeses - refer previous note for
else.
special damages
Court in Chan Chin Min: It is the ACTUAL LOSS that has to be taken
- Cost for extraction of LoA
into account. (deceased gv mom $. mom sikit to eceased’s sister, not - funeral expenses if incurred by the estate (Minachi v Mohd Yusof)
counted)
General Damages (pain suffering, loss of amenities etc) prior to death. can be
2. claimant tak perlu prove he totally depend on deceased’s made where there is a lapse of time between the accident and the death,
contribution – Muhamad bin Hashim during which the deceased was not totally unconscious.
- Thangavelu v Chia Kok Bin - deceased died 11 months and 6 days
after the accident,court awarded RM20,000 for pain and
3. condition precedent under S 7 (3)(iv) CLA
suffering.
- Takong Tabari
1. below retirement age – Tan Bin Hairudin
2. good health (omit if post amendment)
Merger of claims : combine both DC & EC - both claims can be filed jointly or
3. was receiving earning at time of death – Dirkje Pieternella, Chua
independently by the executor/administrator on behalf of the estate.
Kim Suan/Nazori Teh– legal income

Principles on calculation – S 7(3)(iv)(c) Statutory multiplier – S 7(3)(iv)(d)

3rd element : the loss connected to family rship
Burgess v Florence Nightingale Hosp : Loss of
service of wife as dancing partner = based on
contractual rship, cannot claim
(-) living expenses from multiplicand Court reduce multiplier – Takong Tabari
Mohd nor taya Chan Chin Ming’s dissenting judgement : no
Rebecca Matthew provision in CLA for reduction, hence should
Tey Chan & Anor remain at 16yo
Ibrahim Ismail – follow CCM’S diss.judgement

2. LOSS OF SERVICES 3. BEREAVEMENT 4. FUNERAL EXPENSES

Section 7 (3)(iii)
KDE Recreation : Loss of service of a wife husband cannot claim
BUT court award expenses reasonably incurred as a consequence
of loss of service of a deceased spouse
Neo Kim Soon - CoA allowed a male spouse’s claim for actual
reasonable $ which is consequential upon loss of services of the wife
Sodah case follow NKS – wife claim $ consequentio of loss of
services of husband
KDE Recreation : ct awarded the husband for $ incurred in
employing additional housekeeper
Section 7 (3A) - RM 10k (30k post amend)
Section 7 (3B) – who can claim : Spouse (married),
Parents (deceased minor & unmarried)
Section 7 (3C) – parents kena divide equally
Hazimah bt Muda - 2 wives, share =
Noor Famiza
Hooi Seong – minor hv to specifically prove not
married
Ibrahim Ismail v Hasnah Puteh – contributory
negligence, reduction of damages
Section 7 (3)(ii)
Tan Ah Hong v Mahalingam – court awarded damages for funeral expenses incurred
by friends/relatives (which pf felt she was under moral, obligation to repay)
Wong Ngoo Hing – general rule, cannot claim unless incurred by the plaintiff. But if
paid by friends/relatives, can still claim as long as claimant give undertaking that he
will repay those who paid if the claim succeed. In this case takde undertaking
Johnson v Baker - $ for mourning such as black clothes & memorial stone
Pang Ah Chee – court award reasonable $ taking into consideration several factors,
such as status of deceased. This case, court ambik kira that Chinese funeral
reasonable to spend that much, it’s what normally incurred, $2000 awarded
Jubli v Sunway Lagoon – bunga, air mawar cannot