Fatal injury

Based on the question, … As a result of these, Azhar died and H suffered injuries. The cause
of action here would be ... Several ingredients of negligence are required to be satisfied in
order to sue D under negligence. P would have the burden of proving the elements of
negligence based on balance of probabilities.

H may bring a personal injury claim to claim for damages for the losses and injuries suffered
as a result of the accident against Adam

On the other hand, two claims may arise as a result of Azhar’s death, namely dependency
claim which is brought under S7 of the CLA 1956 for the benefit of Azhar’s statutory
dependents and the estate claim which is brought under S8 of the CLA for the benefit of
Azhar’s estate. Here, Mohd Haris (father) as administrator can bring both claim or just the
dependency claim if there is no point in bringing an estate claim on the facts.

At the same time, Hisham might also want to sue Azhar’s estate as Azhar may be partly to
blame for the accident.

Each of these claim would be discussed separately in the following paragraphs.

Azhar & Hisham v Adam

Duty of care, standard of proof, breach, causation, damages

Hisyam v Azhar’s estate

Duty of care, standard of proof, breach, causation, damages

However, under the principle of joint tortfeasors, tortfeasors are jointly and severally liable.

Claims arising from Azhar’s death

Dependency claim
Limitation period is 3 year from the date of death of the deceased per S7(5) CLA.

Dependency claim is brought under S7 of CLA for the benefit of Azhar’s statutory
dependents to compensate them for the loss of support suffered together with the
expenses reasonably incurred as a result of the defendant’s tort which cause Azhar’s death.
To mount a dependency claim, there are case law requirement and statutory requirement
to be satisfied.

In relation to case law requirement, it must be proved that there is actual loss of support. In
Yap Ami v Tan Hui Pang, the dependent continue to receive same amount of money even
after the death of deceased. It was held that since the dependent did not suffer any loss, he
would not be entitled for any compensation. Nonetheless, if the dependent through his own
labor and not a gain resulting from the deceased’s death, such losses are claimable as seen
in the case of Lim Chai Onn v Normah bte Ismail.
Besides, the support must be given because of the relationship of the family rather than
professional relationship per Muhammad bin Hashim v Teow Teik Chai

In relation to statutory requirement, S7(2) defines statutory dependent as husband, wife,

parent or child of the deceased OLD LAW
S7(2) defines statutory dependent as husband, wife, parent, child, and any person with
disabilities under the care NEW LAW
On the facts, … However, siblings would not be considered as statutory dependents per
Chan Chin Ming.

The damages the dependents can claim can be divided into special and general damages.

Loss of support
The dependent can claim for loss of support from earnings. 2 conditioned must be satisfied
(S7(3)(iv) CLA 1956)
 Azhar was below 60 years of age at the time of his death
 Azhar was receiving earning by his own labour and gainful activity
It is submitted that both conditions applied. To get the amount for loss of support, we need
to determine the multiplicand and multiplier.

Multiplicand can be determined by earning method and contribution method. On the facts,
since … The RM200 would have to be multiplied by 12 to get annual multiplicand. As for
multiplier, CLA 1956 prescribes the multipliers for loss of future earning depending on the
age of the deceased at the time of his death. Since Azhar was 31 years old at the time of his
death, his multiplier for loss of future earning is obtained by following formula 60 minus 31
and the resulting figure of 29 is then divided by 2 which results in 14.5. in Chan Chin Ming,
the Supreme Court said that the multiplier in the stature was for the loss of future earning
whereas the plaintiff were claiming for loss of support and that they were not the same.
Hence, in that case, the court reduced the multiplier from 16 to 7 taking into account that
the 25 years old deceased was a bachelor who may get married and stop supporting his
mother. Here, 31 years old Azhar was also a bachelor. If Chan Chin Ming is followed, there is
a strong possibility that the multiplier will be reduced. However, in Ibrahim bin Ismail, the
Court of Appeal departed from the majority decision in Chan Chin Ming and followed the
minority decision. The court held that the multiplier in the statute was mandatory and the
court had no discretion to reduce it. This has been followed in several subsequent CA
decision. If this approach is followed, there will be no reduction in the multiplier.

Bereavement
S7(3B) provides that Azhar’s parents can claim for bereavement. The amount that can be
claimed is RM30,000 as provided in S7(3A) and S7(3C) provides that the sum will be divided
equally between the parents, Bereavement does not fall under special or general damages
and there is no interest on bereavement as stated in Santhanalechumy.

Contributory negligence
If the court finds that Azhar is contributorily negligent, the damages under the dependency
claim will be reduced regardless of whether the estate was a party to the action or not as
decided by the Court of Appeal in Rubaidah
Estate Claim
The only item under the estate claim will appear to be the costs of extracting the letters of
administration which is submitted may be claimable under S7 as an expense reasonably
incurred by the dependents.

S6(1) CLA: Since the estate claim is essentially a claim by deceased person for the injuries
that he sustained, the limitation period for the cause of action is still 6 years.

S8(3) CLA: Estate claim can only be brought against the estate of the deceased in
circumstances where an action in personal injury was pending at the time of death of the
deceased or where the action is brought within 6 month of the personal representative
taking out the representation. Loo Khoo Chin v Tan Cheng Hang

Interest
 The interest awarded between the date of death and date of award or judgement.
The power to award this interest is provided by S11 of CLA 1956.
 Power to award interest on judgmental debt is provided under Order 42 r 12

Loss of earning/income
 Loss of earning from date of accident up to the date of the award is special damages,
losses thereafter are recoverable as general damages.
 Pre-condition
o Old law
 55 years old
 In good health
 Earning by his own labour or other gainful activity
o New law
 60 years old
 Earning by his own labour or other gainful activity

Labour or gainful activity
 Marappan v Siti Rahmah: allowances for being trained as teacher fall under category
of gainful activity
 Dirkje v Mohd Noor bin Baharom: P took no pay leave and did not receive earning at
the time of the accident. She was not entitled any award or damages for loss of
future earning but she is entitled to claim for loss of earning capacity
 Pantai Medical Centre Sdn Bhd v Fareed Reezalarund: court will be quite liberal in
accepting the evidence of income (not being able to prove documentation for salary)

Illegal earning
 As a general rule, illegal earning are not claimable on the ground that it is against
public policy as seen in the case of Chua Kim Suan v Government of Malaysia in
which it was held that earning from illegal operations of the taxi should be
disallowed.
 Tan Lye Seng v Nazori: work permit expired, obligation of the employer to renew.
Allowed to claimed because P did nothing wrong.
  Ooi Han Sun v Bee Hua Meng: illegal working but can claim the amount that he
would earn if he works in Malaysia.
 Azmi bin Latif v Ang Sing Leong: look at the potential danger to the public moral
justification, procedural issue

Prospects of increment and promotion

 S28A(2)(c)(ii)
 Marappan & Anor v Siti Rahmah: prospects of increment and promotion as a
general rule is not claimable
 Chang Ming Feng v Jackson Lim: can claim if there is evidence that there would have
been an increase in their pay had they stayed in employment
 However, Marappan case is a Supreme court case, Chang Ming Feng is High Court
case only

Expenses
 To calculate earning method, the formula is total earning minus tax plus EPF minus
living expenses
 Living expenses are defined in Tey Chan v South East Asia Insurance Bhd as cost of
earning a living (cost of work)

Cost of care
 Must prove that the care is required
 If the cost of care is provided to P based on gratuitous basis, such cost is claimable
because if anybody is to benefit from the charity of the third party, it has to be
plaintiff and not the defendant Donnelly v Joyce

Mitigation of loss
Ward v MAS: must mitigate if capable to do so. Otherwise, cannot claim full amount

Deduction of tax
Rationale of this is because payment of income tax is a requirement of law.

Insurance policy
 S28A(1) & Ward v MAS: not deductible
 Sathisuaran v Agilan: Ward v MAS not applicable because Ward case concerned with
a claim related to loss of earning which comes under general damages. In this case, it
is concerned with medical insurance which is a specific damages. Since the money
did not come out from plaintiff’s pocket, he cannot claim from defendant
 However, Soo Cheng Lin v Dr Kok Chong Seng: claim for medical fee is claimable.
When the parliament use the word “damages” in S28A(1), they did not refer to them
as special or general damages.

Loss of earning capacity

 It is a general damages.
  Compensation with regards to the disability
 Plaintiff needs not be gaining at the time of accident but must have earned before
 Awarded on the basis that plaintiff will suffer disadvantage at job market
 Azizi Amran v Hizzam Che Hassan: P injured but did not lose employment.
nonetheless, there is medical evidence showing he might not be able to work in the
future when the injury turn worse.
 Krishnan v Chow Wing Khuan: loss of earning capacity was awarded instead of loss
of future earning as there was medical evidence to suggest the P’s injuries would
become worse with time affecting his ability to earn
 Court will take into account age of P at the time of trial, normal age of retirement
and scale down for contingencies

Liability for loss of consortium and loss of services

Hum Peng Sin v Lim Lai Hoon: S7(iii) CLA prohibits an award for loss of consortium or
services that is the sole head of the claim but it does not prohibit an award for the loss of
services provided by the wife.

Multiplier
S38A(2)(d)

Fixed multiplier will prevail over statutory multiplier

Statutory multiplier starts from the date P suffered injury

Damages
Property damage
If the property is totally damages, the damages would be assessed based on the market
value of the property at the time of accident per Motor and General Insurance v Pok Siong
Kok

Cost of repair is claimable as long as it is reasonable per Abdul Hamid v Tan Chu Kim

Reinstatement is subjected to the principle of betterment and depreciate per Chip Fong v
Guardian Royal Exchange

Can claim for items lost during accident per Paravathy