Opinion Writing:

Personal Injury
~~ CY Kuek
1. Preparing to write an opinion
• 7 stages:
• Stage 1: read and digest your instructions
• Stage 2: answer the primary question: what
does my client actually want to know?
• Stage 3: absorb and organise the facts
• Stage 4: construct a legal framework
• Stage 5: look at the case as a whole
• Stage 6: Answer all the questions
• Stage 7: Consider your advice
1. Analysis for tort cases
In tort case, use this structure for the purpose of analysis:
 Did the defendant owe the plaintiff a duty of care?
 Was the defendant in breach of that duty?
 Was the plaintiff contributorily negligent?
 What injury, loss or damage has the claimant suffered?
 Each head of damage should be considered separately (but
not necessarily in this order):
 Was it reasonably foreseeable?
 Has the plaintiff acted reasonably to mitigate the loss?
 What is the quantum?
2. Scenario
• Minnie Mao was walking on the pavement
of Jalan Sibuk, Melaka on her way to work
on Friday, 5 July 2019. At about 8.30am,
she stopped to look in the window of Lady
D, a shop at 23 Jalan Sibuk.
2. Scenario
• Donald Dass, a shop assistant at Lady D, was
helping unload a delivery of new products.
Carrying a large and heavy box from the van
towards the shop, he bumped into Minnie Mao
and knocked her down. Minnie Mao suffered a
fractured ulna and made a full recovery 6
months later. She now wishes to sue and obtain
compensation because of her injury.
2. Scenario
• Q: Whether Minnie Mao can claim for
negligence?
• The elements which must be proved by
Minnie Mao are:
 a duty of care owed to Minnie Mao
 breach of the duty
 loss and damages
3. Accident Cases

Property Damage

Personal injury

Death
3. Accident Cases
• In a personal injury action, based on negligence:
• Did D owe P a duty of care?
• Was D in breach of that duty (namely was he or
she negligent)?
• What are P’s injuries and losses?
• Were they caused by D’s negligence?
• Was P contributorily negligent?
• Is the damage reasonably foresseable?
• Did P mitigate?
• What is the quantum of damage?
3.1 Property Damage

 Total destruction? Partial damage?

 Ascertain the ownership (driver and owner may
be different persons)
 Was the driver authorised to drive?
 Appropriate driving licence?
 Whether the vehicle was a private vehicle or
commercial vehicle?
 Whether the vehicle has road tax and insurance
 Police report
 Other expenses: cost of towing, repair
3.2 Accident – Personal Injury

• Principle of negligence & compliance with statutory

requirements
• Duty of care
• Breach of duty
• An injury flowing from the breach (link between the
breach and injury is vital)
• Proof of negligence: onus of proof is on the claimant (P)
– to show on a balance of probabilities the (D) has
breached the duty of care which he owes to the (P)
• Standard of care - ‘reasonable man’- there is duty of
care not to cause injury to your neighbour
3.2 Accident – Personal Injury

• Road Transport Act 1987, s 96(1):

• an authorised insurer (insurance company) is bound to
satisfy any judgment obtained against a person covered
by a policy of insurance… in respect of any liability
incurred by him that results in death or bodily injury to a
third party caused by or arising out of the use of a motor
vehicle… on a road
3.2 Accident – Personal Injury

• Conditions:
• Judgment must have been obtained by the third party
against the insured person in respect of liability in a
claim for damages
• Before the judgment is obtained, the notice of
commencement of action must be given to the insurer
before or within 7 days of the commencement of action
pursuant to s 96 (2)(a) RTA 1987 (if the writ has expired,
the NOC is also not valid for the purpose of the 2nd writ)
• Policy of insurance must be in force at the time of the
happening of the event which caused the death/ bodily
injury
3.2 Accident – Personal Injury

• 3.2.1 Limitation
• Actions founded on tort shall not be brought after the
expiration of 6 years from the date on which the cause of
action accrued: Limitation Act 1953, s 6(1)(a)

• Where the claim is made against a public authority or any

person carrying out his duty as a public officer, the period of
limitation is 36 months from the date of the accident: Public
Authorities Protection Act 1948, s 2

• Where the tortfeasor in an accident claim dies, the claim

against the tortfeasor's estate must be commenced not later
than 6 months after his personal representative takes out
representation: Civil Law Act 1956, s 8(3)(b)
3.2 Accident – Personal Injury

• 3.2.2 Damages

(a) Special damages - has to be specifically pleaded

(b) General damages need not be specifically pleaded

Burden of proof on the balance of probabilities in the evidence

lies on the plaintiff
3.2 Accident – Personal Injury

• 3.2.2 Damages

(a) Special damages

 Actual pecuniary loss
 Financial loss that can be quantified and specifically proven
by receipts
 Quantifiable and can be quantified till the last cents
 Must be strictly pleaded and proved
 Proof of expenses – documentary proof, oral evidence
3.2 Accident – Personal Injury

• 3.2.2 Damages

(a) Special damages

 Any needs or expenses claimed will only be compensated by

way of special damages if they are found to be reasonable
 What is reasonable will depend on the facts of the particular
case and the particular expense which is being claimed
3.2 Accident – Personal Injury

• 3.2.2 Damages

(a) Special damages

 Damage to motor vehicle – Repairs

 Loss of use - expenses incurred for travelling to the place of

work and to undertake other daily activities because the car is
indisposed - amount to be claimed depends on how long it
takes to repair the car - in so far as the period of loss of use
is concerned, the repairer must be called to establish the time
it took to repair the car
3.2 Accident – Personal Injury

• 3.2.2 Damages

(a) Special damages

 Hospital visits - Claims for transportation and travelling costs

incurred by the plaintiff and family members have been
allowed, provided they are supported by evidence and are
reasonable

 Claims by the plaintiff for the cost of travel to a treatment

centre - receipts for treatment or treatment records will
corroborate the plaintiff's travel claims for such treatment
3.2 Accident – Personal Injury

• 3.2.2 Damages

(a) Special damages

 Cost of treatment in a private hospital - only recoverable in full

if the plaintiff can show that it is reasonable for him to seek
treatment at a private hospital

 If the plaintiff cannot show reasonableness, then he will only

be entitled to a portion of the costs, example: 1/3 of the costs
3.2 Accident – Personal Injury

• 3.2.2 Damages

(b) General damages

 Non-pecuniary loss that cannot be precisely quantified / to be
determined by the Court depend on circumstances of the
cases
3.2 Accident – Personal Injury

• 3.2.2 Damages
(b) General damages

Damages for pain and suffering prior to death

 if death is instantaneous, no award will be made for pain and
suffering and loss of amenities
 if death occurs after a lapse of time and the plaintiff is
conscious, an award for pain and suffering and loss of
amenities will be made
 if death occurs after a lapse of time but the plaintiff is totally
unconscious, an award for loss of amenities will be made but
not for pain and suffering
 if death occurs after a lapse of time and the plaintiff is partially
conscious, an award for pain and suffering and loss of
amenities will be made
3.2 Accident – Personal Injury

• 3.2.2 Damages
(b) General damages

Loss of Amenities
 The injury itself is regarded as a loss of body faculties
 The consequences of the injury on the plaintiff's ability to
enjoy life is regarded as a loss of amenities
3.2 Accident – Personal Injury

• 3.2.2 Damages
(b) General damages

Loss of Future Earnings

 Future earnings = earnings affected after the date when the
injury was sustained and the calculation of loss commences
from that date
3.2 Accident – Personal Injury

• 3.2.2 Damages

Principle of assessing loss of future earnings:

 Civil Law Act 1956, ss 28A(2)(c), (d)
 Age of 60 or above – not entitled
 In good health – a plaintiff gainfully employed immediately
before he was injured is presumed to have been in good
health
 Earnings received through own labour or other gainful activity
– include loss of salary and EPF
 Only amount of earnings at time of injury to be taken into
account – prospect of the earnings being increased cannot be
taken into account
 Living expenses to be deducted if proved/admitted
3.2 Accident – Personal Injury

• 3.2.2 Damages

Calculation of award of loss of future earnings:

 Period of award: starting from the date of accident and ending
when the plaintiff reaches the age of 60 years

Number of years’ purchase applicable

 Age 30 or below: the number of years’ purchase is 16
 Age between 31- 59: the number of years’ purchase is 60
less his age at the time of injury divided by 2
3.2 Accident – Personal Injury

• 3.2.2 Damages

Loss of earning capacity

 Can be claimed where the disability suffered by an injured
person is such that though it has not caused a diminution in
his income at present, there is a risk that he might be thrown
out of work altogether or get less well paid employment at
some future date
3.2 Accident – Personal Injury

• 3.2.2 Damages

Loss of earning capacity

 An award will be made where:

 The plaintiff has proven he was in receipt of earnings at the

time he was injured

 There is evidence, especially medical evidence that he

would face a substantial risk of either losing his job or getting
less income in his occupation
Thank You !!
 (FIRM NAME)
Advocates & Solicitors
Peguambela & Peguamcara

(Address) Operation hours:

Tel: Monday – Friday: 9am to 5.30pm
Fax: Saturday, Sunday
Email: & Public Holidays: Closed

Partners: Legal Assistants:

Your Ref. : Please Advise

Our ref. : ___________________
Date : ___________________

[Insurance company]
[Address] [Mode of Service]
WITHOUT PREJUDICE

Dear Sirs,

Re: Collision involving motor car no._______ and motor lorry no. at __________(location)

1. We refer to the above matter and we are acting for Mr. ____ (NRIC No. ____), of
(address), the owner/driver of the motor car no.______.

2. Our investigations reveal that you are the insurer for the motor lorry no _____ at the
material time. We are instructed to claim for all losses and expenses incurred by our
client as a result of the said accident.

3. We enclose the following documents for your reference:

(a) Certified true copy of our client’s Police Report No. _________;
(b) Certified true copy of your insured’s Police Report No. _______;
(c) Police Sketch Plan with key of the accident scene at _______;
(d) Medical Report from the _________ on (date) by (Doctor’s name); and
(e) Hospital bill and medical receipt from ___________ on (dates) respectively.

4. Liability

(a) On or about ____ (set out the facts on how the accident occurred)
(b) From the facts, it cannot be disputed that …
5. Quantum

5.1 General Damages

According to the medical report dated ____ from ______, we would assess our client’s
personal injuries as follows:

(a) Cerebral concussion RM 6,000

(name of the case , and the Court awarded RM___ due to ___ . In
our present case, we suggest RM___ is fair and reasonable to be
awarded to our client or if it is not fair - argue)

(b) Fracture right 4th to 6th ribs RM12,000

(name of the case, and the Court awarded RM___ due to ___ . In our
present case, we suggest RM___ is fair & reasonable to be awarded
to our client or if it is not fair argue)

(c) Multiple abrasion over the face, right elbow and right shoulder RM2,000
(name of the case, and the Court awarded RM___ due to ___ . In our
present case, we suggest RM___ is fair and reasonable to be
awarded to our client or if it is not fair - argue)
Total RM20,000

5.2 Special Damages

As a result of your insured’s negligence, our client has to incur medical expenses and other
expenses:

(a) JPJ search RM20

(b) Police Report, Sketch Plan RM28
(c) Medical report RM80
(d) Repair cost for motor car no.__ RM12,000
(e) Travelling expenses for further treatment (RM20 x 4 trips) RM80
(f) Medical expenses RM9,000
Total RM21,208
6. The total claim for our client on the above matter would be in the region of RM41,208.
For the purpose of settlement at this stage we are prepared to advise our client to accept
RM_______.

7. We trust that you would be amenable to an amicable settlement of this matter. Kindly
let us have your offer of settlement soonest possible.

8. KINDLY NOTE that we are instructed by our client to commence legal action in ____
Court to claim the same if there is no settlement achieved within ONE (1) month from
the date of this letter.

If you require further information, please do not hesitate to call us at our contact number
referred above.
Thank you.

Yours faithfully,
(firm name)

Encl.
cc. client