Opinion Writing: Fatal Injuries & Property Damage

1. Introduction

• Where a person dies as a result of any wrongful act, neglect or default, for
example due to a motor vehicle accident, the Civil Law Act 1956 provides
for a statutory right of action.

• In general, 2 types of claims are provided for in the CLA:

(a) Dependency claim – under s 7 CLA. A dependency claim is for losses

sustained by the dependants arising out of the death of their deceased
provider. Brought by dependants within the meaning of s 7 CLA for the
benefit of themselves.

(b) Estate claim - under s 8 CLA. The estate claim is brought to recover
damages over losses caused to the deceased, which survives and vests in
his estate. Brought by personal representative for the benefit of the
deceased’s estate

• The 2 claims are independently sustainable

• Civil Law Act 1956

Section 7: Compensation to persons entitled for loss occasioned by death

(1) Whenever the death of a person is caused by wrongful act, neglect or

default, and the act, neglect or default is such as would, if death had not
ensued, have entitled the party injured to maintain an action and recover
damages in respect thereof, the party who would have been liable if death
had not ensued shall be liable to an action for damages, notwithstanding
the death of the person injured, and although the death has been caused
under such circumstances as amount in law to an offence under the Penal
Code [Act 574].

Section 8: Effect of death on certain causes of action.

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(1) Subject to this section, on death of any person all causes of action subsisting
against or vested in him shall survive against, or, as the case may be, for the
benefit of, his estate:

Provided that this subsection shall not apply to causes of action for defamation or
seduction or for inducing one spouse to leave or remain apart from the other or to
any claim for damages on the ground of adultery.

2. Types of Claim

2.1 Dependency Claim

2.1.1 Statutory Cause of Action

• Dependency claim under s 7 CLA

• Two (2) preliminary conditions

(a) they must prove that the death of the deceased was caused by a
‘wrongful act, neglect or default’ of the wrongdoer.
(b) it must be shown that the default by the wrongdoer is such as would, if
death had not ensued, have entitled the deceased to maintain an action
and recover damages in respect of the injuries inflicted.

2.1.2 Wrongful act or omission resulting in death

• Only those deaths which results from the wrongful act or omission of a
wrongdoer that are capable of enabling a dependant of the deceased to
recover a statutory award of damages for loss of dependency.

2.1.3 Who are dependants?

(a) Meaning of dependant

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• Sections 7(2) and 7(11) CLA 1956

• Civil Law Act 1956

s 7(2): Every such action shall be for the benefit of the wife, husband,
parent, child and any person with disabilities under the care, if any, of the
person whose death has been so caused and shall be brought by and in the
name of the executor of the person deceased.

s 7(11): In this section unless the context otherwise requires—

“child” includes son, daughter, grandson, granddaughter, stepson and
stepdaughter;
“parent” includes father, mother, grandfather and grandmother;

Provided that in deducing any relationship referred to in this subsection

any illegitimate person or any person who has been adopted, or whose
adoption has been registered, in accordance with any written law shall be
treated as being or as having been the legitimate offspring of his mother
and reputed father or, as the case may be, of his adopters.

Muhamad Bin Hashim v Teow Teik Chai & Anor [1996] 1 CLJ 615

Appellant/plaintiff = the father of the deceased.

Test: the direct benefit to the claimant, need not prove he was dependent
(contrary to proof that he was a qualified person) on the financial support.

Zulkifli Ayob v Velasini K Madhavan & Anor [2000] 1 CLJ 117

Payne-Collins v Taylor Woodrow [1975] 1 All ER 898; [1975] Q.B. 300

(Divorced wife of the deceased - not entitled)

K v JMP Co. Ltd. [1975] 1 All E.R. 1030

(Unmarried women – not entitled)

Chan Chin Ming & Anor v Lim Yok Eng [1994] 3 MLJ 233 (SC)

Siblings are not included in the category of statutory dependants

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2.1.4 Procedure

• The action must be brought by the deceased's executors: s 7(2) CLA.

• But if there are no executors, or if no action is brought within 6 months of

the deceased's death, the action may be brought by all or any of the
dependants: s 7(8) CLA.

• A dependency claim under s 7 CLA must be brought within 3 years after

the death of the deceased person in question as provided in s 7(5) CLA.

• The damages recovered, nett of all costs and expenses, are to be divided
amongst the dependants as the court directs: s 7(4) CLA.

• A defendant is entitled to pay money into court in one lump sum and the
court is empowered to decide on its sufficiency: ss 7(9) and (10) CLA.

2.1.5 What can be claimed by the dependants?

➢ Loss of support: s 7(3) CLA

➢ Funeral Expenses: s 7(3)(ii) CLA
➢ Bereavement: s 7(3A) CLA
➢ Reasonable expenses incurred: s 7(3) CLA

2.1.6 Loss of support: s 7(3) CLA

• Muhamad Bin Hashim v Teow Teik Chai & Anor [1996] 1 CLJ 615

Held: Support means the pecuniary provision which furnishes a livelihood,

and the loss of support means the pecuniary benefit lost, a consequence of
the death of the provider of the support.
Test: the direct benefit to the claimant, … but the claimant need not prove
he was dependent on the financial support.

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• To determine loss of support, one has to determine the amount the deceased
earned prior to the accident.

• A claim made for loss of support or loss of dependency is subject to strict

compliance with several requirements as outlined in s 7(3) CLA:

• After the deceased’s earnings have been assessed, the court must next
proceed to determine the amount of contributions made by the deceased to
the deceased’s dependants by reference to a multiplicand.

• A multiplicand represents a periodical amount of contribution each

dependant was receiving prior to the deceased's death.

(a) Method of assessing damages

(i) Generally, "How long, and to what extent would he, had he lived, have
been likely to provide for the dependant".

(ii) Necessary to determine actual pecuniary loss and the years of

purchase.

(iii) Victim committing suicide after accident - claim for dependency

Sivakumaran & Ors v Yu Pan & Anor [1995] 1 MLJ 12

(b) Pecuniary loss

(i) There must be actual loss of dependency

Chan Chin Ming & Anor v Lim Yok Eng [1994] 3 MLJ 233 (SC)

(ii) May include money and money’s worth (services)

CL(A)A 1984: Section 7(3)(iii) CLA 1956

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“no damages shall be awarded to a parent on the ground only of his having
been deprived of the services of a child; and no damages shall be awarded
to a husband on the ground only of his having been deprived of the services
or society of his wife.”

(iii) Computation of the loss

Conventional mode

Rebecca Mathew & Ors v Syarikat Kerjasama Serbaguna Gema

Wong Siong & Anor [1990] 1 MLJ 443

Low Suit (MW) & Tan Mee Kiau v Lim Sun Hiang& Anor [1992] 2
CLJ 1035; [1992] 2 CLJ (Rep) 813

(iv) Prospect of increase?

s 7(3)(iv)(b) of CLA 1956: prospects of increase to be ignored

In assessing the loss of earnings in respect of any period after the

death of a person where such earnings provide for or contribute to
the damages under this section (s 7 CLA) the Court shall take into
account only the amount relating to the earnings as aforesaid and the
Court shall not take into account any prospect of the earnings as
aforesaid being increased at any period after the person’s death.

(v) Loss of service

Section 7(3)(iii) CLA 1956

A claim by a parent for the loss of services of a child or by the husband for
the deprival of the services or society of his wife has been abrogated.

Neo Kim Soon v Subramaniam a/l Ramanaidu [1996] 1 CLJ 730 (CA)
Hum Peng Sin v Lim Lai Hoon [2001] 4 MLJ 232, CA

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• The claim for loss of services is independent of the claim for loss of support
by the dependants and is claimable even if there is no claim for loss of
support.

KDE Recreation Bhd v Low Han Ong [2006] 3 MLJ 335 (CA)

(vi) Support from deceased's pension while he was alive

Lee In Fong v Zaharah bt Johan [1992] 4 CLJ 2108

(c) Years of purchase or multiplier

(i) What was the deceased's age?

(ii) Who is the claimant? For how long will he or she need support?

(iii) Multipliers after CL(A)A 2019

Section 7(3)(iv)(d) CLA - in the case of a person who was of the age of 30
years and below at the time of his death, the number of years' purchase
shall be 16; and in the case of any other person who was of the age range
extending between 31 years and 59 years at the time of his death, the
number of years' purchase shall be calculated by using the figure 60 minus
the person's age at the time of death and dividing the remainder by the
figure 2.

Chan Chin Ming & Anor v Lim Yok Eng [1994] 3 MLJ 233 (SC)
[1994] 3 MLJ 233; [1994] 3 CLJ 687; [1994] |3 AMR 1991

Rohani bte Said v Noraini bte Omar [2002] 2 MLJ 725

Cheng Bee Teik & Ors v Peter a/l Selvaraj & Anor
[2005] 4 MLJ 301 (CA)

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 Noraini bte Omar v Rohani bin Said and another appeal
[2006] 3 MLJ 150 (CA)

(iv) Support from earnings after deceased attained 60 years

After CL(A)A 1984: s 7(3)(iv)(a) CLA 1956 - if the deceased had

attained age of 60 years, loss of earnings for the period after his death
cannot be taken into account.

Lee In Fong v Zaharah bt Johan [1992] 4 CLJ 2108

(d) Loss must be a real one

(i) Prospective dependency/loss of support

After CL(A)A 1984: s 7(3)(iv)(a) CLA 1956 which provides that the
deceased must be receiving earnings by "his own labour" or other "gainful
activity".

(ii) Illegal earnings and speculative loss

Burns v Edman [1970] 2 Q.B. 541 (deceased's entire earnings from theft)
Chua Kim Suan (Administratrix of the estate of Teoh Teik Lee, decd) v Govt
of Malaysia [1994] 1 MLJ 394
Davies v Taylor [1974] A.C. 207

(e) Loss must be directly connected to a family relationship

Sykes v North Eastern Railway Co. (1875) 44 LJCP 191

Burgess v Florence Nightingale Hospital for Women [1955] 1 All E.R.
511
Malyon v Plummer [1964] 2 All ER 344 (CA)

(f) Prospects of remarriage of the deceased's widow/widower

Chan Yoke May v Lian Seng Co. Ltd. (1962) MLJ 243

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Position after CL(A)A 1984:

(i) Apportionment
Ahmad Nordin v Eng Ngak Hua [1985] 2 MLJ 431
Rebecca Mathew & Ors v Syarikat Kerjasama Serbaguna Gema Wong Siong
& Anor [1990] 1 MLJ 443

(ii) Health of the deceased

Moores v Co-operative Wholesale Society Ltd (CA) Times, 9 May
1955

After CL(A)A 2019: S. 7(3)(iv)(a) of CLA 1956 - loss of earnings shall be

taken into account "if it is proved or admitted" that deceased was "was
receiving earnings by his own labour" or other "gainful activity."

Summary

Ascertaining the loss of earnings of a deceased person is a central issue in

the assessment of dependency damages. The rules provided under s
7(3)(iv) CLA are summarised as follows:

(a) only the loss of earnings of a deceased who is below the age of 60
years, receiving earnings by his own labour or other gainful activity
prior to his death.

If the deceased, having attained above the age of 60 but is still

working to support his dependants, the courts would ignore a claim
for dependency.

The deceased was receiving earnings by own labour or other gainful

activity prior to his death or injury.

(b) any prospective increase in earnings after death is to be discounted;

(c) the living expenses, either proven or admitted, of the deceased at the
time of death are to be deducted;

(d) the number of years’ purchase (multiplier) in the case of:

• A deceased aged 30 years and below shall be 16; and

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 • any other person whose age range extends between 31-59 years, it
shall be 60 minus the age of the person at the time of death and
divided by 2.

Number of years purchase [multiplier- s.7(3)(iv)(d) CLA]:

The deceased age 30 years and below shall be :16

31 years and above 59 – the age of deceased divided by two (2)

• The general formula for calculating dependency damages is:

Calculation Loss of Support

Monthly loss of support x 12 months (multiplicand) x number of years

purchase (multiplier)

• From this amount, the monthly “living expenses” of the deceased are
deducted leaving a nett figure which is the theoretical maximum available
to his dependants.

• The deceased's living expenses has been defined to include petrol, meals at
the work place, maintenance of vehicles and taxi or bus fares.1

Tey Chan v South East Asia Insurance Bhd [1993] 3 MLJ 760

(g) In determining dependency the following are not to be taken into account
(s 7(3) CLA, proviso):

(i) any sum paid or payable on the death of the person deceased under any
contract of assurance or insurance;

1
Chang Chong Foo v Shivanathan[1992] 2 MLJ 473, SC.
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 (ii) any sum payable, as a result of the death, under any written law relating
to employees' provident fund;
(iii) any pension or gratuity, which has been or will or may be paid as a
result of the death; or
(iv) 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 death.
• K.R. Taxi Service Ltd case
• Pushpa a/p Meenasundarom & Ors v Awai bin Hassan & Ors
[1995] 1 MLJ 510 (whether s. 42 of Employees' Social Security
Act 1969 precludes a claim under section 7 of CLA 1956).
(h) Deductions

(i) Income Tax

A Court should regard a figure from any notice of assessment of
income tax as res inter alia and consider the evidence with an open
mind.

Chua Kim Suan (Administratrix of the estate of Teoh Teck Lee, decd) v
Government of Malaysia (1994) 1 M.L.J. 394 SC

(ii) Other deductions

Chan Yoke May v Lian Seng Co. Ltd.

TakongTabari @ Takung Tabri v Government of Sarawak & Ors
(1998) 4 AMR 3988

2.1.7 Funeral Expenses

• Funeral expenses are also recoverable against the wrongdoer on behalf of

the dependants: s 7(3)(ii) CLA

• Damages are only awarded to dependants for funeral expenses expended

on behalf of the deceased person, if such expenses have been incurred by
the parties for whose benefit the action was brought.

• General rule: a claim cannot be made unless such expenses were actually
incurred by the plaintiff but he is entitled to them if he has given an
undertaking to repay the party who had made the payment.

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2.1.8 Bereavement

• An award for bereavement is payable in the form of a statutory lump sum

payment of RM30,000: s 7(3A) CLA.

• An award for bereavement is only available to the spouse of the deceased

and where the deceased was a minor and never married, to his parents (to
be divided equally between them): s 7(3B) CLA

• Is, there a presumption that a person under 18 is unmarried?

NO, see s 10 Law Reform (Marriage and Divorce) Act 1976 (Act
164)

Hooi Seong v Ooi Pay Yeong (1995) 4 CLJ 229

3. Estate claim

•
(a) Action by the personal representative

• Where a person dies as a result of any wrongful act or omission, the estate
of the deceased is also entitled to claim damages: s 8 CLA.

3.1 Persons entitled to sue

• As all causes of action survives for the benefit of the deceased's estate, only
the personal representative or administrator who has obtained a grant of
letters of administration or probate will be competent to sue on behalf of
the estate.

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• An administrator cannot sue before obtaining and extracting the letters of
administration. In Ingall v Moran [1944] KB 160; [1944] 1 All ER 97 CA
(Eng) and Emily Rose Hilton v Sutton Steam Laundry (a firm) [1946]
KB 65; [1945] 2 All ER 425, CA (Eng)

3.2 Damages claimable by estate of deceased under s 8 CLA

• The damages, which are recoverable by the deceased's estate, may include
pecuniary and non-pecuniary damages. This pecuniary and non-pecuniary
damages recoverable by the deceased's estate can be classified into special
and general damages.

The position before Pickett v British Rail Engineering Ltd [1980] A.C. 136:
(i) special damages;
(ii) funeral expenses;
(iii) pain and suffering (where applicable) - see Thangavelu v Chia Kok
Bin [1981] 2 MLJ 277;
(iv) damages for loss of expectation of life (a fixed sum - see Teoh Kim
Seng v Hassan [1987] 2 MLJ 209).

After Pickett's case - damages for loss of earnings in the "lost years".
Kandalla v B.E.A.C. [1981] Q.B. 158;
Gammell v Wilson [1982] A.C. 27 and the authorities discussed

• Where the deceased had survived for some time before he died from his
injuries, pecuniary losses incurred by the deceased are recoverable. These
damages must be specifically pleaded and proved and can be divided into
the following convenient classifications:

Special damages

(1) Medical expenses and cost of care

• Medical expenses incurred from the time of accident to the time of death
is recoverable as special damages. Special damages must be strictly proved.

(2) Loss of earnings

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 • A claim for loss of earnings which the deceased would have earned during
the period when the deceased was alive is also recoverable provided that
strict proof of such loss can be shown.

(3) Cost of extracting letters of administration

• In Tham Meng Fatt v Utam Singh Omnibus Co Ltd, the court awarded
RM350 as cost incurred for extracting letters of administration.

(4) Other incidental expenses

• Other incidental expenses incurred include extra nourishment, travelling

expenses, costs of police report, post mortem report and others.

(5) Funeral expenses.

General Damages

• These damages can be divided into the following convenient classifications:

(1) Pain and suffering and loss of amenities prior to death.

4. 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

All damages to property including motor vehicles and all claims relating to

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such damages. To advise on the necessary proof needed.

Motor & General Insurance Sdn Bhd v Pok Siong Kok & Ors [1988] 3 MLJ
318

Lim Seong Choon & Anor v R. Rayaratnam [1990] 3 MLJ 252

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