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Estate Claim

This document summarizes the types of claims that can be made in a fatal accident case under Malaysian law when the deceased died after the accident. It discusses who can make the claim, potential damages that can be recovered such as loss of earnings and medical expenses before death, funeral expenses, pain and suffering, and how claims may be merged to prevent double recovery. It also briefly mentions contributory negligence and provides examples of cases related to various issues.

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Lilac Fairy
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327 views14 pages

Estate Claim

This document summarizes the types of claims that can be made in a fatal accident case under Malaysian law when the deceased died after the accident. It discusses who can make the claim, potential damages that can be recovered such as loss of earnings and medical expenses before death, funeral expenses, pain and suffering, and how claims may be merged to prevent double recovery. It also briefly mentions contributory negligence and provides examples of cases related to various issues.

Uploaded by

Lilac Fairy
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© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
Available Formats
Download as PDF, TXT or read online on Scribd

FATAL ACCIDENT CLAIMS

LAW549 REMEDIES (TORTS)


ESTATE CLAIM
INTRODUCTION

When the deceased did not die at the time of the


accident, but died later.
Example: Thangavelu (1981) – 11 months & 6 days
Takong Tabari – 10.5 hours
DATE OF ACCIDENT --- DATE OF DEATH --- DATE OF TRIAL --- RETIREMENT AGE
Who will make the claim?

❑s. 8(1) “…shall survive against, or,…, for the benefit of, his estate”

❑s.8(2) – Damages recoverable


s.8(2)(a) - exclusion
s.8(2)(b) – breach of promise to marry
s.8(2)(c)”…shall be calculated without reference to any loss or gain
to his estate consequent on his death, except…funeral expenses”
EXAMPLES OF POSSIBLE CLAIMS:
(i) Financial Loss Suffered BEFORE Death

❑Loss of earnings from date of accident to date of death –


s.8(2)(a)

❑Medical expenses

❑Damage to property

❑Loss of personal belongings


(ii) Other Financial Expenses – Special Damages

❑Cost of extraction of letter of administration

❑Funeral Expenses s.8(2)(c)- even if paid by someone else :


➢Tan Ah Hong v Mahalingam [1962] MLJ 250.

➢Wong Ngoo Hing v Wong Choy [1999] 4 MLJ 481

➢Maria bte Mohamad (1990)


Wong Ngoo Hing v Wong Choy [1999] 4 MLJ 481
HC:
“As a general rule, a plaintiff in a dependency claim (in a fatal accident
claim) cannot claim for funeral expenses unless such expenses were
actually incurred by the plaintiff. However, a plaintiff can claim for
funeral expenses, even though such expenses were wholly paid by
friends or relatives, if there is evidence before the trial court that the
plaintiff has given an undertaking to the friends or relatives or, at least,
to the trial court itself that he will repay the friends or relatives if he
were to succeed in the claim for such expenses.”
What amounts to Funeral Expenses?

➢Johnson v Baker (1825) - Mourning eg black clothes or items worn /


displayed as a sign of grief.
➢Hart v Griffith-Jones (1948) – Cost of embalming was allowed but
not the cost of memorial stone.
➢Schneider v Eisovitch (1960) – cost to transport body.
➢Jubli v Sunway Lagoon (2001) – travel expenses to visit grave & cost
of flowers placed at the grave were not allowed.
Generally:
The court will award a fair and reasonable amount, taking into
account the status and station in life of the deceased, and other
relevant factors.
➢Pang Ah Chee v Chong Kwee Sang [1985] 1 MLJ 153.
(iii) General Damages

❑Pain & Suffering (incl loss of expectation of life – s.28A)

❑Loss of Amenities

➢Thangavelu v Chia Kok Bin (1981)

➢Takong Tabari v Govt of Sarawak


MERGER OF CLAIMS
◦ Combining Estate Claim & Dependency Claim
◦ Purpose: to prevent double recovery

(i) Estate Claim > Dependency Claim

(i) Estate Claim < Dependency Claim


CONTRUBUTORY NEGLIGENCE
◦ s.12(4) CLA 1956

◦ Rubaidah bt Dirin v Ahmad bin Arifin (1997)


THE END

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