DAMAGES

FATAL ACCIDENT CLAIMS

• DEPENDENCY CLAIM
• ESTATE CLAIM
INTRODUCTION
• MEDIA REPORTS
• Accidents on the rise each year
• Festivities – number of fatalities increase
• Many can own motor vehicles especially motorcycles
• CLAIMS
• Insurance companies pay out vast sums in damages
• Claims are slow
• CIVIL LAW (AMENDMENT) ACT 1984
• In force 1st October 1984
• Amended section 28A (Personal Injury Claims), section 7 (claims by widows
and orphans for support), and section 8 (actions by estate).
INTRODUCTION (cont…)
Pain &
Sufferings
Estate
Special Funeral
damages Expenses
Fatal accident
claims Loss of support

Dependency Bereavement Spouse/Parents

Special Funeral
damages Expenses
DAMAGES - Fatal Accident Claims
• Awarded as compensation for claims made in respect of death
• LAW – Common Law and CLA 1956
• Special Damages and General Damages
• Dependency claims – section 7(3) CLA 1956 (Loss of Support)
• Estate claims – section 8 CLA 1956 see also Loo Khoo Chin and Loo An
Mooi & Anor v Tan Cheng Hang & Ors [1997] 1 CLJ 109

• Conditions precedent to claims for loss of support

INTRODUCTION (cont…)
• The Civil Law Amendment Act (CLAA) 1984 which came into force on
1st October 1984 and introduced some material changes made to
sections 7 & 8
• By way of the amendment, a fixed multiplier was introduced.
• The latest amendment introduced new type of dependent
• Damages recoverable had previously and traditionally been referred
to as the damages for loss of support by the dependents of the
deceased (the dependency claim) and damages for lost years and
other pecuniary losses suffered by the estate of the deceased (the
estate claim).
DEPENDENCY CLAIM
• A claim for loss of support suffered by the dependents of the
deceased as a result of the death of the latter caused by the
negligence of the wrongdoer.
• A claim under S.7 of Civil Law Act (CLA) 1956 must be brought within
three years after the death of the deceased person in question as
provided in S.7(5) of the CLAA.
• Deceased himself must have been able to sue
DEPENDENCY CLAIM
Pre-requisites
Child
(son/daughter/illegitimate
child/legally adopted
child/grandchild/stepchild)

Husband/wife
First, claimants must be dependents in Person with
order to qualify under S.7(2) and S.7(11) disabilities under
of Civil Law Act 1956. the care of…

Parents
(father/mother/grandparents)
Pre-requisites: Dependents (child)
Adopted child
• In Zulkifli Ayob v Velasini
Madhavan [2000], the Court said
that only legally adopted
children qualify as dependents,
and there must be evidence to
show that the child was the
legally adopted child of the
deceased.
A child above 18
• In James anak Jack & 2 Ors v Ting
Kuak Hua [2006], the High Court
held that a child above the age
of 18 years qualifies to be a
dependent provided that he
suffers financial loss as a result
of the death of the deceased.
Pre-requisites: Dependents (cont…)
Siblings
• In Chan Chin Ming v Lim Yok Eng
[1994], persons entitled to claim
for loss of support do not
include siblings.
Divorced wife
• The Court in Payne-Collins v
Taylor Woodrow Construction
[1975], a divorced wife is not a
dependent, but a wife who
deserted the husband prior to
his death can only make a
dependency claim if she shows a
significant prospect of
reconciliation.
Pre-requisites: Dependents (cont…)

Wife under Customary Marriage Grandparents

• In Chong Sin Sen v Janako
Chellamuthu [1997], a plaintiff,
having undergone a customary
marriage with the deceased and
not having solemnized or
registered the marriage under the
LRA, is still a ‘wife’ within the
definition of Section7(2) and has
the locus standi to bring an
action.
• In Esah Ishak v Kerajaan
Malaysia [2006], the Court
decided that grandparents fall
within the definition of Section
7(2) and are dependents as
specified under Section 7(11).
DEPENDENCY CLAIM
Pre-requisites
Second, the dependents must
show that they have suffered
financial loss. And third, the
financial loss directly connected
to family relation.
Pre-requisites: Financial loss/Loss of support
• Support = A source of means of living, subsistence, sustenance,
maintenance.
• The amount that makes up ‘loss of support’ is the amount the
deceased would have given his dependents during his lifetime,
which is dependent primarily on the earnings of the deceased minus
his living expenses.
• The plaintiff must have received a direct benefit from the deceased’s
support, but need not prove that he was totally dependent on the
deceased’s contribution for his daily needs.
Pre-requisites: Financial loss/Loss of support
(cont…)
• In Chan Chin Ming, it was proved that out of the RM750 allegedly
contributed by the deceased, the direct benefit derived by the
plaintiff, who was the mother of the deceased, was only RM375 as
the rest was used for the benefit of the deceased’s sister was not a
dependent under the Act.
• In Balakrishnan Sinnappan & Anor v Mariammah Ganapragasm & Ors
[2006], the High Court reduced the multiplicand awarded from
RM1378 to RM600 as the deceased’s business was still continuing to
produce income and the widow and children were receiving income
from the business.
DEPENDENCY CLAIM
LOSS OF SUPPORT:SECTION 7(3)
• Dependents – section 7(2) and 7(11)
• Wife, husband, parent and child
• Joremi (2001): Chong Sin Sen (1997)
• Muhamad Hashim v Teow Teik Chai & Anor [1996] 1 CLJ 615
• Zulkifli Ayob v Velasini K Madhavan & Anor [2000] 1 CLJ 117
• Ali Tan & Ors v Mazlan Bidin [COA:12-6-2012] [Civil Appeal: B04-222-2011]
• Dependents must have suffered financial loss - Chan Chin Ming
(1994)
• Loss directly connected to a family relationship - Burgess v Florence
Nightingale Hospital (1955)
LOSS OF SUPPORT
• SECTION 7(3)(iv)(a)
• 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 the Court shall:
• Below 60 years…at the time of his death;
• And, unless proved or admitted…in good health but for the injury that caused his death;
• And was receiving earnings…prior to his death
CASES
• Age limit - Jennifer Harper (sued in her own capacity and as executrix of the estate of Bernard Alfred Harper, decd) v
Timothy Theseira (2009) 7 MLJ 711
“court rejected the claim for loss of support as the deceased was at the time of the accident, 68 years old.”
• Good health – Loh Hee Thuan v Mohd Zani Abdullah (2003)

“it is not necessary for a person’s entire medical record to be admitted in order to prove ‘good health’. It is sufficient to prove
that he was able to lead a normal life before the accident.”
• Was receiving earnings at the time of injury/death – Dirke Pieternella Halma (1990)

“court decided that if the deceased was on a no-pay leave, or temporarily laid off at the time of the accident, the court would
regard as not having any earnings and his dependents will not be entitled to loss of support.
• In Chua Kim Suan, “the earnings in question must be legal.”
• Read • Payne-Collins v Taylor Woodrow [1975] Q.B. 300
• • K v JMP Co. Ltd. [1975] 1 All E.R. 1030

Section 7(3)(iv)(a)
Age limit: how long will he or she need
support
• See the following cases decided by applying the law before CL(A)A 1984:
• Lee Ban Hoo v S. Veeriah [1982] 2 MLJ 188 (Award may not only take into
account the age of the deceased but also of the dependants)
• Chong Khee Sang v Pang Ah Chee [1984] 1 MLJ 377 (deceased a bachelor)
• Parvathy v Liew Yoke Khoon [1984] 1 MLJ 183 (prospects of increase)
• Chong Sow Ying v Official Administrator [1984] 1 MLJ 185
(6 years purchase although deceased was aged 61 years)
• Choh Nyee Ngah v Syarikat Beruntong Sdn Bhd [1989] 3 MLJ 112 (cause of
action accrued on 17.6.1983; deceased would have been 47 years old at the
time of trial - 5 years purchase)
Multipliers after CL(A)A 2019
• Section 7(3)(iv)(d) CLA - in the case of a person who was of the age of thirty 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 thirty-one years and fifthnine 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, (25-year-old unmarried son providing support to his mother. Should the
multiplier of 16 years be used? Should the approach in Chong Khee Sang, (supra) be adopted?)
• Latif bin Che Ngah & Anor v Maimunah bt Zakaria [2002] 4 AMR 4262 (HC)
• Muniandy a/l Periyan & Anor v Eric Chew Wai Keat & Anor [2003] 4 AMR 608 (HC)
• Ibrahim bin Ismail & Anor v Hasnah bte Puteh Imat & Anor and Another appeal [2004] 1 MLJ 525
• Noraini Omar & Anor v Rohani Said & Another Appeal [2006] 1 CLJ 895
• Cheng Bee Teik & Ors v Peter Selvaraj & Anor [2005] 2 CLJ 839
CASES (cont.)
• Prospective earnings not taken into account – section 7(3)(iv)(b)
• Barnett v Cohen [1921] 2 K.B. 461 (child aged 4) (up to dependant to prove reasonable probability of
loss of dependency; in the circumstances not proven); Hassan binMohamad & Anor v Teoh Kim Seng
[1987] 1 MLJ 328; Taff Vale
• Rly. Co. v Jenkins [1913] A.C. 1 (sixteen-year-old girl, apprentice dress maker, learning not earning);
• Chiang Boon Fatt v Lembaga Kemajuan Negeri Pahang [1983] 1 MLJ 89 (deceased about to enter
university).
• Section 7(3)(iv)(a) CLA 1956 which provides that the deceased must be receiving earnings by "his own
labour" or other "gainful activity".
• • Latif bin Che Ngah & Anor v Maimunah bt Zakaria [2002] 4 AMR 4262 HC
• 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.
What to take?
• Living expenses – section 7(3)(iv)(c)
• Rebecca Mathews (1990)
• Low Suit (1992)
• Rohani A/P Tengkah (2004)
• Support from deceased's pension while he was alive.
• See Lee In Fong v Zaharah bt Johan [1992] 4 CLJ 2108
• Whilst agreeing that section 7(3) CLA has done away with the claim
for loss of consortium the Court of Appeal has allowed the surviving
husband to claim for the monetary loss by the direct loss of his wife.
• Neo Kim Soon v Subramaniam (1996) 1 CLJ 731 CA.
• See Hum Peng Sin @ Ham Lin Kin (Suami kepada Chiam Kao Kee @
Cheah Kao Kee (Simati) sebagai defendan) v Lim Lai Hoon & Anor
[1996] 2 CLJ 656
• KDE Recreation Bhd v Low Han Ong & Ors [2006] 1 CLJ 1097
Pre-requisites: Family Relations
• If the loss is due to a contractual relationship, it cannot be claimed.
• In Burgess v Florence Nightingale Hospital [1955]: The husband and
wife were professional dancing partners and the wife died due to the
negligence of a surgeon.
• The Court held that where the benefit must be a benefit arising from
their relationship as husband and wife, the Court allowed the claim
for the deceased’s wife’s contribution to the joint living expenses, but
rejected the claim for loss of services of the wife as a dancing partner.
ASSESSMENT
• There must be actual loss of dependency
• Yap Ami v Tan Hui Pang [1982] 2 MLJ 316
• S.7(3)(iv)(b): in assessing the loss of support, the court shall not take into
account any prospects of increase in earnings at any period after the
person’s death.
• S.7(3)(iv)(c): in calculating the loss of support, living expenses of the
deceased at the time of his death must be deducted.
• In Saw Hau Huat v Mohd Nor Taya: living expenses include the cost of food,
cost of a deceased’s car petrol and its upkeep, and his entertainment and
sundry expenses, but not the deceased’s contribution to his dependents.
ASSESSMENT
• Monthly loss of support x 12 months (Multiplicand) x Number of years purchase
(Multiplier)
• Hum Peng Sin @ Ham Lin Kin (suami kepada Chiam Kao Kee @ Cheah Kao Kee
simati sebagai dependan) v Lim Lai Hoon & Anor [2001] 4 AMR 4171 (CA)
• Rohani bt Said v Noraini bt Omar & Anor [2002] 3 AMR 2672 (HC)-no deductions
allowed Chan Chin Ming not followed

• Chan Chin Ming (1994)

• Multiplier in claim for loss of support by mother of unmarried deceased reduced from 16 to
7 years.
• Takong Tabari (1998)
• Claim for loss of support by dependant widow and children subject to deduction of 1/3.
Assessment
• Generally, "How long, and to what extent would he, had he lived,
have been likely to provide for the dependant".
• Necessary to determine actual pecuniary loss and the years of
purchase.
• See Chua Kim Suan v Government of Malaysia [1994] 1 MLJ 394 SC.
• In cases where victim committing suicide after accident - claim for
dependency. Suicide not a foreseeable damage
• Sivakumaran a/l Selvaraja & 2 Ors v Yu Pan & Anor [1994] 4 CLJ 1067
MULTIPLICAND
• Is determined by the deceased’s earnings at the time prior to his
death
• Earnings – salary, overtime benefits, EPF contributions, allowances
minus the living expenses of the deceased and income tax.
• Earnings must be legal - Chua Kim Suan (1994)
• Wakil Diri (1998)
• Tay Lye Seng (1998)
• Multiplicand: (Contribution to dependents) x 12
MULTIPIER
• Multiplier – the number of years the dependants are entitles to claim
for the loss of support from the defendant.
• Section 7(3)(iv)(d) – statutory multiplier (new 60)
• …age 30 and below at the time of death = 16; (fixed multiplier) and
• …31-54 = 55–age at the time of death/2 (fixed formula)
Eg:
55 – (age at the time of death)
2
DECISIONS AT VARIANCE WITH ABOVE
CASES
• Lim Chin Tee (1996) 1 CLJ 159
• Mat Keri (1997) 3 AMR 2615
• Wakil Diri (1998) 4 CLA 241
• Ibrahim bin Ismail (2004) 1 MLJ 525
• Noraini Omar (2006) 1 CLJ 895
• Marimuthu Velappan v Abdullah Ismail (2007) 1 CLJ 436
• CA held that the majority decision in Chan Chin Ming was wrong while the minority judgement was
correct and went on to hold that the statutory multiplier was not subject to any deduction for the
purposes of calculation loss of earnings.
• Tan Leong Wei (2005) 2 MLJ 576
• Esah bte Ishak (a mother and legal dependant of Nazri bin Ahmad Ramli, decd) & Anor v Kerajaan Malaysia
& Anor (2006) 6 MLJ 1. HC held that the court could reduce the multiplier it felt reasonable and appropriate.
(Chan Chin Ming followed)

Article: “Section 7(3)(iv)(d) of the Civil Law Act 1956 and Fatal Accident Claims: Does the Multiplier differ for a Claimant
who is a Parent(s) and one who is a Spouse with Children?” by C. Kandiah (1995) 1 CLJ cxcix
In determining dependency the following are not to be taken into
account (section 7(3) CLA, proviso):

• (i) any sum paid or payable on the death of the person deceased under any contract
of assurance or insurance;
• (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).
Other deductions
• See Chan Yoke May v Lian Seng Co. Ltd.
• TakongTabari @ Takung Tabri v Government of Sarawak & Ors (1998)4
AMR 3988
• Sri Mahanum v Wakil Diri Harta Pusaka Raden Benni [2019] 3 AMR
327 (CA)
ANY REASONABLE EXPENSES:
SECTION 7(3)/Section 7(3)(iii) – loss of
service
• Neo Kim Soon (1995)
• “As a matter of interest, we observe that proviso (iii) does not preclude damages to a
child for having been deprived of the services or society of his mother…Wherever it
can be shown whether by a parent, a surviving spouse or a child that actual
quantifiable loss has been incurred in money or money’s worth and will continue to
be incurred as a direct result of the negligence of the wrongdoer, such loss will be
recoverable even if there was no direct financial contribution made by the deceased
to or on behalf of the person for whose benefit the action was brought.” per M.
Shanker JCA
• KDE Recreation Bhd v Low Han Ong & Ors (2006) 3 MLJ 335
• Saodah bt Haji Saad (sebagai Isteri dan Waris kepada Haji Abdullah bin
Ahmad, Simati) v Saleh bin Bakar & Anor, COURT OF APPEAL (PUTRAJAYA)
RAYUAN SIVIL NO K-04-270-2004
BEREAVEMENT: SECTION 7 (3A)-(3E)
• Persons entitled to claim:
• Section 7 (3B)
a) The spouse of the deceased; and
b) Parents of the deceased, who was a minor, at the time of death and who never married.
Hooi Seong v Ooi Pay Yeong [1995] – the Court said that only upon being satisfied as to the marital status of the deceased the court could
then allow such claim. The parents of a married minor cannot claim damages for bereavement, only his widow can do so.
• Section 7 (3A) – Amount of damages – RM10,000 new RM30000
• Section 7 (3C) – Sum awarded to parents shall be divided equally between them
• unmarried minor child. See s. 7(3A) - (3E).
• Noor Famiza bte Zabri & Anor v Awang bin Muda & Anor [1994] 1 MLJ 599
• Ibrahim bin Ismail & Anor v Hasnah bte Puteh Imat & Anor and Another appeal [2004] 1 MLJ 525
• Is, there a presumption that a person under 18 is unmarried? NO, see section 10 Law Reform (Marriage and
Divorce) Act 1976 (Act 164)
• Hooi Leong v Ooi Pay Yeong [1995] 4 CLJ 229

Damages for bereavement does not fall under special or general damages and no interest to be given on the
award. Santhanaletchumy v Zainal bin Saad & Anor [1994] 4 CLJ 192
BEREAVEMENT (cont…)
SECTION 7(3A)
• The sum to be awarded as damages
is a fixed amount of RM10,000.
(new RM30000)
• In Noor Famiza Zabri v Awang
Muda, where the plaintiff’s
husband was killed in a road
accident, the court allowed her
claim for bereavement at a fixed
amount of RM10,000 without any
interest on the award for damages.
SECTION 7(3C)
• Where the claim is made by the deceased’s
parents (for more than one person), the
sum awarded shall be divided equally
between them.
• In Hazimah Muda v Ab. Rahim, the Court
said that bereavement is for the spouse,
but if there is more than one spouse
recognized under customary law, the
damages should be shared equally.
• Where the deceased left two spouses, the
damages awarded were divided equally
between them.
 FUNERAL EXPENSES: SECTION 7 (3) (ii)
• Damages for funeral expenses may be awarded if such expenses have been incurred by the party.
• General rule: a claim cannot be made unless such expenses were actually incurred by the plaintiff
(even if paid by others - Tan Ah Hong v Mahalingam (1962))
• Claim for mourning and memorial stone not claimable as funeral expenses – Johnson v Baker
(1825) and Hart v Griffith-Jones (1948)
• Plaintiff must show that the services rendered were reasonably necessary as a consequence of
the tort. - Schneider v Eisovitch (1960)
• Expenses incurred to transport body allowed – Schneider v Eisovitch (1960)
• Status and station in life of deceased – relevant factors in arriving at fair and reasonable figure as
funeral expenses – Pang Ah Chee (1985)
CONCLUSION
• Other matters
• Section 7 (3) (i) (a) (b) (c) (d)
• Mokhtar bin Abdul Razak & Anor v Shamsiah (1997) 1 MLJ 493
• Section 11 – power of court to award interest (Order 28 rule 18)
• Mitigation of damages
• Plaintiff’s duty to take reasonable steps to mitigate loss
• Ward v MAS (1991)
ESTATE CLAIMS
• A claim made by the executors or
administrator of the deceased for
the benefit of the estate.
• An estate claim can be made in
instances where the deceased did
not suffer an immediate death,
but instead suffered injuries and
died much later.
• It is a claim made for loss suffered
between the date of the accident
and the date of the death.
• A deceased is considered as having an
estate if he made a will before he died
and appointed an executor to carry out
his wishes upon his death.
• An action would then be brought on
behalf of the deceased’s estate by the
personal representative (executor).
• The persons who ultimately stand to
gain from the award are the
beneficiaries.
• However, if the deceased died intestate,
his next-of-kin will benefit from the
award.
ESTATE CLAIM: SURVIVAL ACTION
SECTION 8 CLA 1956
• Section 8(1) – on death of any person, all causes of action subsisting against
or vested in him shall survive against, or, for the benefit of, his estate:
• Section 8 (2) – abolished the claim for loss of expectation of life and any
loss of earnings in respect of any period after that person’s death (lost
years)
• Prior to the person’s death, the estate can claim for pain and suffering as general
damages – Thangavelu (1981)/Maria bte Mohamad (1990)
• and can also claim special damages - section 8 (2) (c) –
• funeral expenses (Minachi v Mohd Yusof),
• cost of extraction of letters of administration and medical expenses,
• damage to car, personal possessions and transport expenses.
MERGER OF CLAIMS
• Dependency and Estate Claims – the award under the dependants’ claim
will be reduced or extinguished by the estate claim. The larger award
assessed being payable – Thangavelu (1981) – to prevent double
recovery.
• Under 1984 amendments, merger of estate claims for pain and suffering
and special damages, and dependency claim – Golam Hassan (1987)

Where there is no duplication of damages

between the dependency claim and the estate
claim, both claims can be filed jointly or
independently by the executor/administrator on
behalf of the estate.