Advise the relevant parties on the damages that may be obtained and the principles that may be

applied to assess the damages in respect of:

i) Peah’s injuries

Treatment at GH; (RM6000 [hospital bill] + RM2000 [psychiatrist’s bill])

- Chai Yee Chong v. Lew Thai​: If the treatment is sought at GH, the full amount
expended and paid by the person should be awarded.

Cost of Transport/ Travel expenses (RM50)

- Koh Hak Eng v. Nadarajan​: travel expenses of parents.

Damage to vehicle (RM300 [repair] + RM5000 [depreciated])

- Darbishire v. Warren​: cost must be reasonable, cost of complete repair is recoverable,

- RM3000
- Georgiana v. The Anglican​; Yacht damaged by the defendant which caused the yatch
to no longer be seaworthy as before.
- Chin Hooi Nan v. Comprehensive Auto Restoration Services Sdn Bhd​, apellant
claimed for cost of Repair at RM3600+ 25% depreciation in value=RM9100
- Here, depreciated at RM5000

MyClear (RM100)

- Inas Faiqah Mohd Helmi v. Kerajaan Malaysia- Claim for wet tissue. Court held
unnecessary expenses.

Loss of Earning (RM2000 per month)

- RM200, petrol

Calculation=

(RM2000-200) x (16x25)= X

RM25000 cannot claim bcs at the time of the injury it was not her amount of salary.
Wheelchair RM500

RM500 x [(75-25)=50] - (⅓ of 50) +

Kasirin Kasmani v. The Official Administrator of Low Kiew Meng​;

DECEMBER 2016
 Establish Ricky’s age, 36 years old
Current earning = RM1500
Future earning = RM2000 next month

After accident = RM500

Medical bill = RM25,000

In 5 years time -
● His leg movements were restricted and he was not able to walk properly.
● Possibility of paralysis
● Lifespan may be reduced.

Employ a cook = rm350 per month

Funeral expenses = RM 10,000
__________________________________________________________________________

ANS:

Damages in personal injury claims are classified under special and general damages. An award
for damages must be compensatory, and mitigation of the loss and any overlapping must be
given due consideration to avoid overcompensation. The classes of damages comprises of
pecuniary losses which are losses that can be quantified in monetary terms, and non-pecuniary
losses which are losses that are not quantifiable.

LOSS = RM1500 - RM500 = RM1000

1. The first issue is whether Ricky can claim for future earnings?

No. Section 28A states the precondition. (loss of earnings) case + principle rm2000. In
assessing damages, court consider two factors, (i) the age limit and (ii) was he receiving
earnings before injury by his own labour or gainful acitivity?

Sec. 28A(2)(c)(i): In awarding damages for loss of future earnings, the court shall take
into account that
- The plaintiff must be below 60 years old
- Tan Hairuddin v Bayeh Belalat: A person aged 55 and above at the time
of the accident cannot claim.
(ii) The plaintiff was in good health before the injury
- Loh Hee Thuan v Mohd Zani Abdullah: The plaintiff must have been able
to lead a normal life before the accident. Can claim because diabetes was controlled.

- The plaintiff was receiving earnings by his own labour before he was injured
Dirkje Pieternella Halma: Only the amount that the plaintiff was
receiving at the time of injury can be taken into account. Thus, if the
 plaintiff was not receiving any earnings at that point of time, she does
not qualify for any award of damages for loss of future earnings.

2. The second issue is whether Ricky may claim for special damages of medical
expenses.
In the case of Yaakub Foong v Lai Mun Keong, A plaintiff is entitled to have himself
treated in a private hospital if in all the circumstances of the case that is not an unreasonable
thing for him to do. In Mooi Kim Ming v Tang Sia Bak, the plaintiff discharged himself from a
government hospital against medical advice and sought treatment at a private hospital. Despite
finding that his claim for the expenses incurred at the private hospital were unjustifiable, the
Supreme Court ruled that it has the discretion to award 1/3 of the claim.

In Chai Yee Chong v Lew Thai [2004] 2 MLJ 465, the plaintiff has to prove that he is justified to
seek treatment at a private hospital. To prove this there are 3 hurdles, that the treatment was
not available at a government hospital, and if available the treatment itself was not available
within a reasonable period considering urgency, and the government hospital treatment was
grossly inadequate.

In application, it was reasonable for Ricky to be taken to the private hospital. This is because
the matter was urgent and that it was the nearest hospital available. However, The medical fees
were paid by members of the local church. Thus, h. The money was given gratuitiously.

In conclusin, cannot claime cannot claim for medical expenses because not from his
out-of-pocket expenses.

3. The third issue is whether Ricky may claim for the cost of nursing care.

Where the plaintiff is unable to perform his daily activities without assistance, the court would
allow a claim for nursing care. In Yang Salbiah v Jamil Harun, The duration of nursing care and
whether full or partial cost would be allowed depends on the extent of the injuries or disabilities
suffered.

In application, it is a matter of some certainty that there must come a time where Ricky cannot
look after himself and his children due to his shortage in life expectancy based on the case of
Yang Salbiah. Thus, his claim must be allowed.

In conclusion, can claim for cost of nursing care.

4. The fourth issue is whether Ricky can claim for the possibility of prosthesis,
wheelchair and artificial legs.
In the case of Kasirin bin Kasmani v The Official Administrator, the plaintiff chose to purchase
an expensive wheelchair when he could have bought a cheaper one. He has an obligation to
mitigate his damages and the agreed three charges was allowed of a standard wheelchair for
the lump sum of RM1600 at the present price of RM520 per chair for the duration of his life.

5. The fifth issue is whether Ricky can claim for non-pecuniary Loss of amenities
and loss of enjoyment of life
Loss of amenities is defined as the loss of enjoyement of life, apart from pain and suffering. This
can either be permanent or temporary.

In Lau Ee Ee v Tang King Kwong [1969] 1 MLJ, a 19 year old girl was hit by a car. She cannot
enjoy life anymore, she was not able to participate in sports and other daily acitivies. Thus, court
awarded 25,000 for general damages.

In application, Ricky has to be on medication, possible paralysis and his left arm needs to be
amputated. He has lost a significant amount of enjoyment in life. He also has slurred speech.
He cannot enjoy life the way it was as he did before the accident.

In conclusion, can claim for loss of amenities.

6. The sixth issue is whether Ricky can claim for Pain and sufferings.
Pain refers to physical pain due to injury whereas suffering constitutes to fear, embarassment,
deperession and anxiety.

In Lim Poh Choo v Camden & Islington Area Health Authority, a cardiac arrest was suffered
during operation. Thus, the heart stopped. The principle was that in order to claim for pain and
suffering, the plaintiff must be conscious (aware) of his own pain and suffering. Thus, plaintiffs
who are in a comatose state or unconscious are not entitled to claim.

In application, Ribcage was smashed and his lifespan may be reduced. This amounts to pain.
Moreover, his wife has passed away. Their children was not even in their teens yet. This is
suffering on part of Ricky to have his wife pass away because of someone else’s negligence.

In conclusion, can claim for pain and suffering.