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Fatal Accident Claim

Law of Torts II (Universiti Teknologi MARA)

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RONNIE ANAK ANTHONY I FUU UiTM SHAH ALAM I LAW549 REMEDIES: TORT

FATAL ACCIDENT CLAIM

DEPENDENCY CLAIM

LOSS OF SUPPORT

1. Esah Ishak v Kerajaan Malaysia [2006] - Child, husband and wife, parents which
includes grandparents as seen in .
2. James anak Jack & 2 Ors v Ting Kuok Hua [2006] - the High Court held that a
First, parties to child above the age of 18 years qualifies to be a dependant provided that he suffers
dependency claims financial loss as a result of the death of the deceased.
must be 3. Payne-Collins v Taylor Woodrow Construction [1975] - a divorced wife is not a
dependents under dependant, but a wife who deserted the husband prior to his death can only make a
PRE REQUISITE Section 7(2) and dependency claim if she shows a significant prospect of reconciliation.
REQUIREMENTS
1 (11) of CLAA. 4. Chan Chin Ming v Lim Yok Eng [1994] - persons entitled to claim for loss of support
do not include siblings.
5. [2019 ONLY] CLAA Amendments in 2019 include any person with disabilities (as
defined in the Persons with Disabilities Act 2008) under the care of the
deceased through Section 7(2) CLAA 2019.

1. The amount that makes up ‘loss of support’ = the amount the deceased would have
Second, the given his dependants during his lifetime.
dependents must 2. Test for loss of support is whether the plaintiff must have received a direct benefit
show that they have from the deceased’s support. If a dependent has an independent income, but still is
suffered financial insufficient, must show that there is a direct contribution/benefit from the deceased
loss. and had relied on the deceased’s income/contribution.
3. In Chan Chin Ming v Lim Yok Eng [1994] mother had relied on the contribution of
deceased for only up to the amount the mother had used for her benefit only.

Third, the 1. In Burgess v Florence Nightingale Hospital [1955], the court allowed the claim for
dependents must the deceased wife's contribution to the joint living expenses, but rejected the claim
be of family for loss of services of the wife as a dancing partner. Contractual relationship
relations. does not warrant a dependency claim.

First, the 1. In Jennifer Anne Harper v Timothy Theseira, the Court rejected the claim for loss
deceased’s age is of support as the deceased was, at the time of the accident, 68 years old
below 55.

[2018 ONLY] 1. In Loh Hee Thuan v Mohd Zani Abdullah, it is not necessary for a person’s entire
Second, the medical record to be admitted in order to prove ‘good health’. It is sufficient to prove
CONDITIONS deceased is in good that he was able to lead a normal life before the acciden
2 PRECENDENTS health

Third, the deceased 1. In Dirkje Pieternella Halma, the Court decided that if the deceased was on a no-pay
was receiving leave, or temporarily laid off at the time of the accident, the court would regard him as
earnings prior to his not having any earnings and his dependants will not be entitled to loss of support.
death and at the 2. In Chua Kim Suan, the earnings in question must be legal.
time of his death.

Section 7(3)(iv)(b): Multiplier: <30 : 16. I <60 : 60.

court shall not take Multiplier below 60: 55(2018) / 60(2019) - (Age of accident) / 2
3 FORMULA into account any
prospects of Multiplicand: Contribution to dependants x 12
increase in earnings
at any period after : Multiplier x Multiplicand
the person’s death. : Multiplier x [ ( Contribution to dependants x 12 ) ]
: RM XXXX
Section 7(3)(iv)(c):
living expenses of Saw Hau Huat v Mohd Nor Taya: Living expenses include the cost of food, cost of a
the deceased at the deceased’s car petrol and its upkeep, and his entertainment and sundry expenses, but not
time of his death the deceased’s contribution to his dependants.
must be deducted.

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RONNIE ANAK ANTHONY I FUU UiTM SHAH ALAM I LAW549 REMEDIES: TORT

BEREAVEMENT

Bereavement is a period of mourning or a state of intense grief, especially following th

1 Section 7 of CLA death of a loved one. However, even if a person is not in a state of grief, he still has a
statutory right to claim for such damages provided that he/she is entitled to it under Section
7 of Civil Law Act.

The sum to be awarded as damages to claim for bereavement under this subsection shall
be RM 10,000.00
- Noor Famiza Zabri v Awang Muda - where the plaintiff’s husband was killed in a
2018 road accident, the court allowed her claim for bereavement at a fixed amount of
RM10,000 without any interest on the award for damages.
2 Section 7(3A)
The sum to be awarded as damages to claim for bereavement under this subsection shall
be RM30,000.
- Ilham Binti Idris & Yang Lain-lain lwn. Nor Azmie Isma Mohd Sirojiddin &
2019 Satu Lagi - In this case, the wife of the deceased was entitled for RM 30,000 for
bereavement.

The claim for

damages for In Representative of the Estate of Mohan v Vijayan Velu & Anor (Suing as the
bereavement shall representative of the estate of Kartik Vijayan (deceased)) [2020] MLJU 1792, the court
only for the benefit allow the sum of RM10,000 of damages for bereavement to the Plaintiff’s mother by
3 Section 7(3B) of the spouse of the referring to Section 7(3B) which states that a claim for damages for bereavement now shall
deceased, child of only be for the benefit of the spouse of the person Deceased; the child and the parents of
the deceased and the person Deceased (separately)
parents of the
deceased.

Where the claim is

made by the
deceased’s parents In Hazimah Muda v Ab. Rahim, the Court said that bereavement is for the spouse, but if
4 Section 7(3C) (or more than one there is more than one spouse recognised under customary law, the damages should be
person), the sum shared equally. Where the deceased left two spouses, the damages awarded were divided
awarded shall be equally between them.
divided equally
between them.

FUNERAL EXPENSES

Schneider v Eisovitch [1960]: Before such a sum can be recovered, the plaintiff must
show that the services rendered were reasonably necessary as a consequence of the tort.

Tan Ah Hong v Mahalingam [1962], a claim cannot be made unless such expenses were
Damages for actually incurred by the plaintiff. Where the expenses were wholly paid for by friends and
Section 7(3)(ii) funeral expenses relatives, there must be evidence that the plaintiff has given an undertaking to repay the
CLA may be awarded if costs incurred if she succeeds in the claim.
(Amendment) such expenses
2019 have been incurred Johnson v Baker [1825]: Costs incurred for mourning and memorial stone (and other
by the party. unnecessary things) are not claimable.

Pang Ah Chee v Chong Kwee Seng [1985], in assessing the damages, the deceased’s
status and station in life will be taken into consideration in arriving at a fair and reasonable
figure.

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RONNIE ANAK ANTHONY I FUU UiTM SHAH ALAM I LAW549 REMEDIES: TORT

ESTATE CLAIM - GENERAL DAMAGES

● Anxiety Plaintiff may be compensated for both physical pain caused by the injury and emotional
● Fear, suffering which refers to the mental element.
Pain and Embarrassment
1
suffering ● Depression. Lim Poh Choo v Camden & Islington Area Health Authority, the plaintiff must be
conscious of his own pain and suffering in order to claim for pain and suffering.

● Personal sense Loss of amenities refers to the deprivation of ordinary experiences and amenities of life.
of loss
● Inability to Teoh Suan Seng v Lew Meng Shin, the plaintiff must be compensated for as far as
2
Loss of pursue enjoyable money can do for the loss of opportunity in order to lead a normal and full life.
Amenities occupations
● Loss of Lau Ee Eee v Tan King Kwong, a partial restriction on enjoyment of life would still
enjoyment of life. entitle the plaintiff to claim for loss of amenities.

3 Loss of Refers to the loss of companionship, love, and support that a spouse or partner may
Consortium experience as a result of the injury or death of the other spouse or partner.

Bas Mini Muhibbah Sdn Bhd v Abdullah bin Salim (1983) 2 MLJ 405: The
respondent’s wife suffered amputation of her left leg due to an accident and successfully
recovered damages from the appellant bus company. The respondent then brought a
claim against the bus company for loss of consortium. He complained that as a result of
the accident, the wife had resiled from his physical and moral companionship.

ESTATE CLAIM - SPECIAL DAMAGES

EXPENSES CAUSED BY INJURY

Traditional Treatment Seah Yit Chen, the test in any such case must be whether it was reasonable for the
Expenses plaintiff to seek such 'traditional' treatment and incur the expenses, and the answer as
to whether it was reasonable must depend on the facts of each case.

Treatment in Private Yaakub Foong v Lai Mun Keong & Ors, in the event where the plaintiff received
Hospital treatment at a private hospital, he is entitled to be treated in a private hospital
provided that it is reasonable and necessary for him to do so.

Treatment in Govt Chai Yee Chongv Lew Thai, full amount of damages will be awarded if treatment is
Hospital sought at a government hospital, however, for treatment sought in a private hospital,
the court can award damages provided that the plaintiff is justified to do so by
proving one of the three hurdles. He also must prove that all amount spent was
reasonable, taking into account normal charges at other private hospitals

If the court was not satisfied with the plaintiff’s justification to sought treatment at
1 Medical Expenses
private hospitals, the court may
● dismiss the claim or
● award an amount not exceeding 1/3 of the claim for contingencies.

Treatment Overseas Rajaletchumi & Anor v Angela Soh Oon Kay [1971] 1 MLJ 129, the plaintiff had
suffered injuries on her face with disfiguring scars which in the opinion of her family
doctor needed plastic surgery. She went to New York where the plastic surgery was
done by Dr Herbert Conway. The learned trial judge allowed a part of her claim for the
cost of the surgery and hospitalization and of the journey to New York although it was
urged on him that the girl could have had the same operation in Malaysia or in
Singapore where the cost would not exceed RM1,000.

Medical Bills Paid by Lim Kiat Boon & Ors V Lim Seu Kong & Anor [1980] 2 MLJ 39: it was held that the
Others proposition that there should be no reduction where the money is given gratuitously
or advanced by a sympathetic employer is based on the principle that the generosity
of others

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RONNIE ANAK ANTHONY I FUU UiTM SHAH ALAM I LAW549 REMEDIES: TORT

EXTRA NOURISHING FOOD & DIAPERS

1 Extra Nourishing
Food Yeap Cheng Hock v Kajima- Taisei Joint Venture [1973): The Court said that, “No doubt, the plaintiff gave
evidence that he had purchased the extra nourishing food when he was in the hospital, but in the absence of
medical evidence that they were necessary in the light of hospital food and nourishment provided, I am not
prepared in the circumstances to allow the claim on the three items”

2 Cost Of Special Inas Faiqah bt Mohd Helmi v Kerajaan Malaysia & Ors [2016] 2 CLJ 885, the appellant claimed for the sum
Clothes of RM500 per month for the cost of special clothes, diapers, wipers and creams.

3 Diapers Nurul Atikah Mustafa Kamal v Nurazlina Suriani binti Zulkifly: in order to treat her bladder and bowel
incontinence after 45 years, the plaintiff was awarded RM240 per month for adult diapers
4 Wipers And Creams

NURSING CARE

1 Family Members
Marappan v Siti Rahmah [1990] 1 MLJ 90, the cost of nursing care should not be any less if the plaintiff was
looked after at home instead of an institution as compensation can be given for the services rendered by the
parents.

2 Private Institution
Lim Poh Choo v Camden & Islington Area Health Authority [1980] AC 174, the plaintiff was a senior
doctor. She was admitted to a hospital operated by the defendant health service for a minor surgery. The
following day in the recovery room she suffered a cardiac arrest which resulted in severe brain damage. She
was barely sentient and entirely dependent on 24 hour carers. The defendants admitted liability but disputed
the quantum of damages awarded at first instance.

3 Cost of Training and Inas Faiqah bt Mohd Helmi v Kerajaan Malaysia & Ors [2016] 2 CLJ 885, the Court was of the view that
Education of the kind of training and education needed for the carers of special children such as the appellant would be
caregiver very much different from the training provided for the normal kindergarten teacher. A proper training and
education is necessary to be provided to the appellant's parents and carers from time to time so as to meet the
development and needs of the appellant. The Court therefore allowed this head of claim for RM2,000 per year
for 20 years, to be paid for with in a lump sum.

2018 Multiplier: 75 (base age) – (age at the time of accident) = x – (1/3 of x)

4 FORMULA Multiplicand: Cost charged per month by private institution x 12 months

: Multiplier x Multiplicand

2019

COST OF PROSTHESIS

1 Artificial limbs (if any) Azman Kasri v Md. Isa Endut (1988) 2 CLJ 743, the Court awarded compensation for cost of fitting artificial
limbs and for the future, for cost of renewal of consumption items as well as for travelling expenses for
servicing of artificial limbs.

Ramachandran a/l Mayandy v Abdul Rahman bin Ambok Laongan & Anor [1997] 4 MLJ 237, the court
allowed the claim for the most advanced prosthetic in the market so as to put the plaintiff, as far as money
can do, in as near a position as he was before the commission of the tort.

2 Future renewals of
artificial limbs (if any)

3 Service, maintenance
and replacement of
spare parts. (if any)

2018 Step 1: Multiplier: 75 (base age) – (age at the time of accident) = x – (1/3 of x)
FORMULA Step 2: [ Multiplier ÷ Lifespan of Prosthesis x Price of Prosthesis ]

2019

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RONNIE ANAK ANTHONY I FUU UiTM SHAH ALAM I LAW549 REMEDIES: TORT

TRANSPORT EXPENSES

Abdul Hamid v Tan Chu Kim [1969] 2 MLJ 215: the Plaintiff was knocked down by defendant’s car. She
then claimed for the taxi fare for her physiotherapy treatment.

Travel expenses for Tay Siew Goh v Tay Tian Soo [1965] 31 MLJ 21: the court allowed the claim of travel expenses for
1 plaintiff’s parents and plaintiff’s parents and other relatives.
other relatives.
Kasirin Kasmani v The Official Administrator & Anor [1990] 3 CLJ 2598 the Court awarded the sum of
RM400 for her transport expenses for her visits to the plaintiff at Hospital Daerah Banting which is near the
kampong where she lived.

FORMULA Multiplicand (RM per day) x Multiplier (number of days) + interest

VEHICULAR DAMAGES

1 Plaintiff’s Cars Georgina v The Anglican (1873) 21 WR 280, the plaintiff was held entitled to recover, in addition to the cost
of partial repairs to a yacht which did not make her as strong and seaworthy as formerly, the amount by
which the value of partially-repaired yacht was less than before the damage occurred.

LOSS OF PERSONAL BELONGING/THEFT

1 The plaintiff’s Parvathy & Ors v Liew Yoke Khoon (1984) 1 MLJ 183, In this case, an Indian woman who was injured and
belongings are stolen her husband killed while on the way to a wedding, recovered RM7470 for loss of jewellery and other items
or removed from the stolen at the scene of the accident.
scene

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RONNIE ANAK ANTHONY I FUU UiTM SHAH ALAM I LAW549 REMEDIES: TORT

LOSS OF EARNINGS

First, the plaintiff Tan bin Hairuddin v Bayeh Belalat 2018

must be below 55 [1990] 2 MLJ 773 whereby a person
years old aged 55 and above at the time of Multiplier: <30: 16
accident cannot claim for loss of future Multiplier: <55 : 55
[2019 ONLY] earnings
Below 60 years old Multiplier: 16@55 - age of accident / 2

Loh Hee Thuan v Mohd Zani Multiplicand: [Gross salary – income tax (if any) –
[2018 ONLY] Abdullah, it is not necessary for a living expenses] x 12
1 Loss of Future person’s entire medical record to be
Second, the
Earnings admitted in order to prove ‘good
deceased is in good 2019
health’. It is sufficient to prove that he
health was able to lead a normal life before
the acciden Multiplier: <30: 16
Multiplier: <60 : 60
Dirkje Pieternella Halma v Mohd
Multiplier: 16@60 - age of accident / 2
Noor Baharom [1990] 1 CLJ 99, only
The plaintiff must the amount that the Plaintiff was
Multiplicand: [Gross salary – income tax (if any) –
be receiving receiving at the time of injury can be
living expenses] x 12
earnings taken into account.

Chua Kim Suan, the earnings in

question must be legal.

Section Dirkje Peiternella Halma v Mohd

28A(2)(c)(ii) Noor bin Baharom & Ors ruled that
2 Prospective any increase in earnings, prospective
Increase in or otherwise, after the date of the
Earnings injury, should not be taken into
account.

2018

Multiplier: <30: 16
Multiplier: <55 : 55

Salim bin Dawing v Lim Kat Kang,
the court ruled that the plaintiff has lost
3 Loss of Earning his chances in the future of getting
Capacity work in the labour or work as well as
paid as before the accident has been
diminished because of the injury he
suffered
Multiplier : 55 - (age at the time of the accident)
Multiplicand: (Previous income – current income)
x 12 months
2019
Multiplier : 60 - (age at the time of the accident)

Multiplicand: (Previous income – current income)

x 12 months

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