Motor Vehicle Accident

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MOTOR VEHICLE ACCIDENT

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2. DAMAGES FOR PERSONAL INJURIES
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INTRODUCTION
S.28A Civil Law Act 1956 (as amended)
28A Damages in respect of personal injury
(1) In assessing damages recoverable in respect of personal injury which does

not result in death, there shall not be taken into account -
(a) any sum paid or payable in respect of the personal injury under any
contract of assurance or insurance, whether made before or after the coming into
force of this Act;
(b) any pension or gratuity, which has been or will or may be paid as result of
the personal injury; or
(c) 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
personal injury.
(2) In assessing damages under this section -
(a) no damages shall be recoverable in respect of any loss of expectation of

life caused to the plaintiff by the injury;
(b) if the plaintiff's expectation of life has been reduced by the injury, the Court,
in assessing damages in respect of pain and suffering caused by the injury, shall
take into account any suffering caused or likely to be caused by awareness that his
expectation of life has been so reduced;
(c) in awarding damages for loss of future earnings the Court shall take into
account -
(i) that in the case of a plaintiff who has attained the age of fifty five years or
above at the time when he was injured, no damages for such loss shall be awarded;
and in any other case, damages for such loss shall not be awarded unless it is
proved or admitted that the plaintiff was in good health but for the injury and was
receiving earnings by his own labour or other gainful activity before he was injured;
(ii) only the amount relating to his earnings as aforesaid at the time when he
was injured and the Court shall not take into account any prospect of the earnings as
aforesaid being increased at some time in the future;
(iii) any diminution of any such amount as aforesaid by such sum as is proved
or admitted to be the living expenses of the plaintiff at the time when he was injured;
(d) in assessing damages for loss of future earnings the Court shall take into
account that -
(i) in the case of a person who was of the age of thirty years or below at the
time when he was injured, the number of years' purchase shall be 16; and
(ii) in the case of any other person who was of the age range extending
between thirty one years and fifty four years at the time when he was injured, the
number of years' purchase shall be calculated by using the figure 55, minus the age
of the person at the time when he was injured and dividing the remainder by the
figure 2.
APPLICATION OF ENGLISH LAW
Jamil bin Harun v Yang Kamsiah [1984] 1 MLJ 217
The Federal Court held that it was necessary for the court in a personal injury
case where there is an element, of future loss or damage to itemise its award, that is,
to make a separate assessment under each head of loss or damage. In this respect
the Federal Court accepted the guidance of the House of Lords in the English case
of Lim Poh Choo v Camden and Islington Area Health Authority [1980] AC 174 and
followed its previous decision in Murtadza bin Mohamed Hassan v Chong Swee Pian
[1980] 1 MLJ 216
The Federal Court itemised the damages under the headings as follows: —
(1) Pain, suffering and loss of amenities $ 70,000

(2) Loss of future earnings $ 33,816
(3) Cost of future care $ 25,362
$129,178
They awarded interest under the first head, but not under heads (2) and (3).
The appellant appealed. In the appeal counsel for the appellant criticised the
judgment of the Federal Court which he said represented not the law of Malaysia but
the law of England. Counsel also submitted —
(1) that as a matter of Malaysian law it was wrong to itemise an award of

damages in personal injury cases;
(2) that in the case of an infant plaintiff loss of future earnings was too
speculative to qualify for an award of damages and that such a loss should not, in
Malaysian law, be accepted as recoverable; alternatively, that in the present case
there was no evidence of any such loss;
(3) that there was no acceptable evidence of any need for nursing services or
any paid care in the future.
Held:
(1) it is for the courts in Malaysia to decide, subject always to the statute law of
the Federation, whether to follow English law. Modern English authorities may be
persuasive, but are not binding. In determining whether to accept their guidance the
Courts will have regard to the circumstances of the states of Malaysia and will be
careful to apply them only to the extent that the written law permits and no further
than in their view it is just to do so;
(2) though no statutory requirement exists in Malaysia for the itemization of

damages in personal injury cases, the written law certainly does not forbid or prevent
differentiation in the period or rate of interest as appropriate between the different
heads of loss or damage suffered by a plaintiff. Nor does the written law forbid the
Courts to adopt the itemization process in assessing damages. The courts of
Malaysia are free to take their own course and the Federal Court was therefore not
prevented by the written law of Malaysia from using the itemization process in the
assessment of damages for personal injury;
(3) in upholding the right of the second respondent to damages for loss of
future earnings capacity, the Federal Court accepted and applied the correct
principles. If damages were to be a fair and adequate compensation for a plaintiff
who is expected to live for many years during which time he will be unemployed or
his earning capacity substantially reduced, it will be necessary to assess his future
loss, difficult though the task may be in cases where the victim is a child. Though
difficult, the court must do the best it can upon the evidence;
(5) the findings of the trial court in this case, fully justified as they were by
medical evidence, strongly support the inference drawn by the Federal Court that
there would be continuing need for care including nursing services. The Federal
Court using its local knowledge estimated a reasonable figure in terms of current
money; they applied an appropriate multiplier and gave effect to all necessary
discounts;
(6) to conclude, the Federal Court was fully entitled in this case to accept the
principles of assessment laid down by the House of Lords in Lim Poh Choo's case.
The Federal Court was right in their view that the assessment of damages under
separate heads is necessary in such a case as the present in order to achieve a fair
and adequate compensation. The appeal should therefore be dismissed with costs.
Lim Poh Choo v Camden and Islington Area Health Authority [1979] 2 All ER 910
The plaintiff was a senior psychiatric registrar employed in the National Health
Service. She was described in evidence as a "remarkably intelligent doctor," and had
a career ahead of her in her chosen speciality of psychiatric medicine. On February
28, 1973, when she was 36 years old, she was admitted to a National Health Service
hospital for a minor operation, which was carried out the next day. Following the
operation, when in the recovery room, she suffered a cardiac arrest, and, as a result,
extensive and irremediable brain damage, which left her only intermittently, and then
barely, sentient and totally dependent on others. Her expectation of life remained,
however, substantially the same.
Bristow J., on December 7, 1977, awarded the plaintiff damages totalling

£243,309, including £20,000 for pain, suffering and loss of amenities, £105,500 for
the cost of future care of the plaintiff, £84,000 for loss of future earnings and £8,000
for loss of pension. The defendants appealed.
On the appeal, the plaintiff by a respondent's notice contended that £20,000

was an insufficient award for pain, suffering and loss of amenities at the date of
judgment. The Court of Appeal (Lord Denning M.R. dissenting) dismissed the appeal
and declined to vary the sum awarded by the judge for pain, suffering and loss of
amenities. The Court of Appeal and the House of Lords admitted fresh evidence as
to the cost of the future care of the plaintiff.
On appeal by the defendants and cross-appeal by the plaintiff: -
Held:
That, since a genuine deprivation, whether pecuniary or non-pecuniary in

character, was a proper subject of compensation, a plaintiff in a "catastrophic" case
was entitled to recover damages for loss of earnings; that, to avoid duplication, or
exceeding a true compensation for the plaintiff's deprivation or loss, sums for
expenses incurred in earning an income as well as living expenses fell to be
deducted from the damages awarded; but that, in a case of incapacity where there
was a cost of care claim as well as a loss of earnings claim, the right approach in
calculating living expenses was not to attempt an assessment of how much the
plaintiff would have spent and on what, but to deduct the "domestic element" from
the cost of care in calculating the multiplicand; that in assessing the award for the
cost of care account should be taken of the fact that capital as well as income was to
be used in meeting the cost (i.e. by calculating the amount on an annuity basis)
Murtadza bin Mohamed Hassan v Chong Swee Pian [1980] 1 MLJ 216
In this case the appellant admitted liability for the accident which caused the
injuries to the respondent and the only issue was the amount of damages. The
accident occurred on November 5, 1972 and judgment was given on November 23,
1978. The respondent suffered multiple lacerations and a linear fracture of the left
temporal bone, as a result of which he was unconscious for five days. The injury
resulted in physical disability and mental retardation. He lost his job as a lorry driver
and has been unsuccessful in getting employment.
The learned trial judge awarded $16,636.80 for special damages and a global
sum of $45,000 for pain and suffering and loss of amenities and for loss of future
earnings. Interest at 3% was awarded on the special damages and at 6% on the
whole of the general damages. The appellant appealed.
Held:
(2) in the circumstances it must be assumed that the respondent's useful

working life would usually have ended at 55 years and the sum for loss of future
earnings should be reduced to $15,633;
(3) on general damages for pain and suffering and loss of amenities, the sum
of $20,000 awarded by the learned trial judge was appropriate;
(4) interest at 3% would be awarded on the special damages from the date of
accident to date of trial and at 6% on the general damages for pain and suffering and
loss of amenities from date of service of the writ. No interest should be allowed for
the damages for loss of future earnings.
Yang Salbiah v Jamil bin Harun [1981] 1 MLJ 292
In this case the appellant, Yang Salbiah, was run down by a bus and became
vegetative. The learned trial judge awarded a global sum of $75,000 as general
damages with the "usual" order as to interest and costs. The appellant appealed
against the quantum of damages.
Held:
(1) the trend of modern authorities is not towards awards of global sums but
towards awards under particular heads of claim;
(2) in a case of total or near total incapacity the heads of claim for damages
are (a) pain and suffering and loss of amenities; (b) out of pocket expenses up to
date of trial; (c) cost of care to date of judgment with interest; (d) loss of earnings to
date of judgment with interest; (e) cost of future care and (f) loss of future earnings;
(3) in this case the proper damages to be awarded under the various heads
would appear to be (a) $70,000 for pain and suffering and loss of amenities with
interest; (b) $500 for out of pocket expenses; (c) $25,362 for cost of future care; and
(d) $33,816 for loss of future earnings;
(4) the total damages should come to $129,178 and clearly the global sum
awarded by the learned trial judge was so inadequate that the appellate court must
substitute its own assessment for that of the trial judge;
(5) on principle there should be no interest on an award for future loss of

earning capacity.
Jag Singh v Toong Fong Omnibus Co Ltd [1964] 1 WLR 1382
Held:
The law to the factors which must be weighed and taken into account in
assessing damages is the same as in English law.
ASSESSMENT OF DAMAGES
Damages for personal injuries are not punitive and still less a reward. They are
simply compensation that will give the injured party reparation for the wrongful act,
so as far as money can be compensated.
Ong Ah Long v Dr S Underwood [1983] 2 MLJ 324
This was an appeal from the decision of the High Court at Ipoh which gave
judgement for the respondent and awarded the sum of $2,017,440 in general and
special damages due to the injuries suffered by him and caused by the negligent
driving by the appellant of a motor van which grazed against the respondent's left
arm while he was walking beside his car in a street in Ipoh
Held:
(1) the learned trial judge was correct in holding that there was no question of
contributory negligence on the part of the respondent, that the appellant was wholly
to blame for failing to pay attention to the presence of other road users and in
consequence thereof failed to allow sufficient space between his van to enable the
respondent to pass safely. The learned judge applied the correct test in that the
appellants had failed to prove that the respondent did not in his own interest take
reasonable care of himself and contributed by that want of care to his injury;
(2) it is a well established principle that special damages in contrast to general

damages have to be specifically pleaded and strictly proved. The learned trial judge
in this case should not have allowed the amendment to claim loss of earnings 'still
continuing on an unspecified rate to be assessed';
(3) in this case the learned judge has failed to make a specific finding of fact
on the expert evidence. It is not clear whether he assessed the damages for loss of
earnings on the basis of the respondent's inability to perform major plastic surgery or
any form of plastic surgery at all. The learned judge had not taken proper advantage
of having seen and heard the expert witnesses in order to assess the value,
reliability and the impressiveness of the evidence on either side to justify his
conclusion;
(4) the general principle is that an injured plaintiff is entitled to damages for the
loss of earnings and profits which he has suffered by reason of his injuries up to the
date of trial and for the loss of the prospective earnings and profits of which he is
likely to be deprived in the future. There must be evidence on which the court can
find that the plaintiff will suffer future loss of earnings, it cannot act on mere
speculation. If there is no satisfactory evidence of future loss of earnings but the
court is satisfied that the plaintiff has suffered a loss of earning capacity, it will award
him damages for his loss of capacity as part of the general damages for disability
and not as compensation for future loss of earnings. In this case the respondent has
not shown that he has lost any future earnings but has only shown a diminished
earnings capacity;
ONCE AWARD
There can only be one suit brought for each cause of action. Therefore, a plaintiff
suing to recover damages should claim for all losses suffered in that accident in that
same suit. He cannot recover part of his losses in one suit and later bring another
new suit to recover the other part of his losses caused by the same accident.
Fitter v Veal (1701) 12 Mod Rep 542
The Plaintiff recovered a small award of damages for an assault.

Subsequently, as a result of the same assault, a small portion of his skull had to be
removed and he was not permitted to bring a second action.
Brunsden v Humphrey (1884) 14 QBD 141
The defendant had negligently caused damage to a cab driver and his vehicle
in the same accident. The cab driver obtained damages for the damage to his
vehicle.
Held: He was not disentitled from bringing fresh proceedings for damages for
personal injury. There were two causes of action. The plaintiff was allowed to bring
two actions because he had two distinct rights which had been violated and he could
claim for each.
SPECIAL DAMAGES
Represent the plaintiff’s actual pecuniary loss between the date of accident and
the date of judgment.
Batumalee Masilamani & Anor v Thong Chan Leng & Anor [2003] 4 MLJ 391
Duty to mitigate loss
In the instant case, the first plaintiff said that his initial treatment was at the
General Hospital of Klang ('Klang GH'), which was an act of mitigation by itself.
There, a metal plate was inserted onto his leg. The first plaintiff was informed that he
had to wait three to four years to remove the metal plate at the Klang GH. The first
plaintiff was advised by a doctor at the Klang GH to have the metal plate removed at
a private hospital and it was pursuant to that advice that the first plaintiff went to the
private hospital.
It was quite obvious that the first plaintiff had done everything to mitigate the
expenses, and only proceeded to the private hospital after acceding to the advice of
the government doctor. His actions therefore were justifiable and reasonable. As
such, there was no reason why the learned sessions court judge should have
rejected the actual claim of RM742.75. Even the formula of the one-third deduction
was without any foundation. On that score, the order of the lower court was
accordingly varied and the claim for special damages for the full sum of RM742.75
was allowed.
Mohd Saad Mat v Ahmad Mujibudin Mohd Shariff [2002] 6 CLJ 323
The respondent was a pillion rider on a motorcycle which was involved in an

accident with a car driven by the appellant. When the matter came before the
sessions judge, it was held that the appellant was fully liable and the respondent was
accordingly awarded special and general damages. This was an appeal by the
appellant against the said decision.
Held:
The award for the medical expenses was set aside. Based on the principle of
mitigation of damages and subject to the 'one-third' rule, the plaintiff should not be
entitled to claim for expenses incurred at a private hospital when he had acted
against the doctor's advice of discharging himself and delayed treatment which
resulted in the deterioration of his injuries.
Heng Poh Keat & Anor v Aphissit Sae Wong [2001] 1 CLJ 836
Held:
There are two judicial views on a plaintiff's entitlement to claim costs of

treatment at a private hospital. The first view is that where a plaintiff has admitted
himself to a private hospital (instead of a government hospital) without reasonable
cause, he is entitled to claim only one-third of the full medical expenses incurred at
the private hospital. The second view is that the plaintiff is at liberty to choose either
a government hospital or a private hospital and to claim the whole amount of the
medical expenses incurred. The first view is the better view because it is in line with
the principle that a plaintiff is under a duty to mitigate his loss.
Loh Hee Thuan v Mohd Zaini Abdullah [2003] 1 MLJ 213
Whilst the court has a discretion to award a sum that is reasonable for hospital
bills, the court found that in the special circumstances of this case it was
unreasonable to have awarded only one-third the sum. Therefore, the court set aside
the award of one-third made by the sessions court and granted the appellant the full
claim on hospital bills.
Tan Teck Hing & Anor v Lee Yong Kong & Anor [2003] 1 MLJ 599
There were merits in the submission for the second plaintiff and the award of
the learned trial judge for the aforesaid injuries by way of itemization was not strictly
prohibited. The courts in Malaysia are free to take their own course. The assessment
of damages was essentially an exercise of discretion. The individual quantum
awarded was fair and reasonable, for separate and distinct parts of the second
plaintiff's anatomy in which case the element of overlapping did not arise.
GENERAL DAMAGES
Represent the loss to the plaintiff that cannot be precisely quantified.
Sam Wun Hoong v Kader Ibramshah [1981] 1 MLJ 295
Held:
(1) the learned trial judge was correct in not making an award for loss of future
earnings as there was no evidence of such possible loss of earnings by the appellant
as a result of the loss of his right leg;
(2) the award of $12,000 for loss of earning capacity was fair and reasonable
having regard to the nature of the appellant's work and the failure of the appellant to
prove future loss of earnings.
Yang Salbiah v Jamil bin Harun [1981] 1 MLJ 292
In this case the appellant, Yang Salbiah, was run down by a bus and became
vegetative. The learned trial judge awarded a global sum of $75,000 as general
damages with the "usual" order as to interest and costs. The appellant appealed
against the quantum of damages.
Held:
(1) the trend of modern authorities is not towards awards of global sums but
towards awards under particular heads of claim;
(2) in a case of total or near total incapacity the heads of claim for damages
are (a) pain and suffering and loss of amenities; (b) out of pocket expenses up to
date of trial; (c) cost of care to date of judgment with interest; (d) loss of earnings to
date of judgment with interest; (e) cost of future care and (f) loss of future earnings;
(3) in this case the proper damages to be awarded under the various heads
would appear to be (a) $70,000 for pain and suffering and loss of amenities with
interest; (b) $500 for out of pocket expenses; (c) $25,362 for cost of future care; and
(d) $33,816 for loss of future earnings;
(4) the total damages should come to $129,178 and clearly the global sum
awarded by the learned trial judge was so inadequate that the appellate court must
substitute its own assessment for that of the trial judge;
(5) on principle there should be no interest on an award for future loss of
earning capacity.
Lim Poh Choo v Camden and Islington Area Health Authority [1980] AC 174

character, was a proper subject of compensation, a plaintiff in a "catastrophic" case
was entitled to recover damages for loss of earnings; that, to avoid duplication, or
exceeding a true compensation for the plaintiff's deprivation or loss, sums for
expenses incurred in earning an income as well as living expenses fell to be
deducted from the damages awarded; but that, in a case of incapacity where there
was a cost of care claim as well as a loss of earnings claim, the right approach in
calculating living expenses was not to attempt an assessment of how much the
plaintiff would have spent and on what, but to deduct the "domestic element" from
the cost of care in calculating the multiplicand; that in assessing the award for the
cost of care account should be taken of the fact that capital as well as income was to
be used in meeting the cost (i.e. by calculating the amount on an annuity basis)
Ratnasingam v Kow Ah Dek [1983] 2 MLJ 297
On appeal, the Federal Court upheld the award of general damages for pain,
suffering and loss of amenities of life, and of special damages. They made no award
for loss of earnings up to date of retirement but in respect of earnings after
retirement, they awarded a sum of $31,172.23. Their substituted award was as
follows:—
(a) General damages for pain, Suffering and loss of amenities of life @
$70,000.00
(b) Loss of future earnings prior to retirement @ Nil
(c) Loss of future earnings after retirement @ $31,172.23
(d) Loss of gratuity @ Nil
(e) Special damages @$500.00
Total @ $101,672.23
The Federal Court held that the assessment of loss of future earnings by the
learned judge which was based on the difference between the respondent's existing
salary and that he would get as a Superscale G (on his passing the Bahasa Malaysia
examinations) was untenable.
Zuffre Haji Zakaria v Nurazmi Hj Layeb [1998] 5 CLJ 824

Exemplary damages could be awarded in certain circumstances including
situations which involved oppressive, arbitrary or unconstitutional acts by
government servants. There is a general right of the courts to award aggravated
damages if there are circumstances which could properly be called aggravating.
On the facts of the case, although the defendant did act in a manner which
might otherwise have attracted exemplary damages, the degree of provocation
which he received did not warrant such an order. The plaintiff would be entitled only
to general and special damages.
Goh Chai Huat v Lee Mui Ping & Ors [2000] 4 CLJ 319
Claims for loss of future earnings in dependency claims
Section 7 of the Civil Law Act 1956 makes no provision for claims for loss of
future earnings; the sessions judge and the High Court were therefore right in
disallowing the appellant's claim for the same.
Section 8(2)(c) of the CLA only allows claims for funeral expenses and not for
loss of future earnings; the sessions judge and the High Court were right in so
holding.
Section 28A(2)(c)(i) of the Civil Law Act 1956 stipulates the condition that in
order to be entitled to claim for loss of future earnings, the claimant must be
receiving earnings at the time before his injury happened. As the first appellant was
only a student at the time of the accident, his appeal in respect of prospective
earnings had to be dismissed.
Hum Peng Sin v Lim Lai Hoon & Anor [2001] 4 MLJ 232
At common law, a husband could recover damages, inter alia, for the loss of
the services provided by his wife. But an amendment to s 7 of the Civil Law Act 1956
changed all that. What proviso (iii) to s 7(3) of the Act prohibits is an award for the
loss of consortium or services where that is the sole head of claim. The third proviso
does not prohibit an award for the loss of the services provided by a wife when such
a claim is coupled with another head of claim for either actually engaging a
housekeeper. Neither did it apply here where it was proved that such a housekeeper
had to be engaged but was not because the plaintiff husband could not afford it due
to his impecuniosity.
As for the award for the loss of dependency, the court considers the
multiplicand selected by the sessions court to be unrealistic having regard to the
evidence on record. The sum of RM400 per month was reasonable in all the
circumstances of the case. The multiplier was as prescribed by the fourth proviso to
s 7(3) of the Act.
Loh Hee Thuan v Mohd Zaini Abdullah [2003] 1 MLJ 213
Held, allowing the appellant's appeal and dismissing the respondent's cross
appeal:
(2) Whilst the court has a discretion to award a sum that is reasonable for
hospital bills, the court found that in the special circumstances of this case it was
unreasonable to have awarded only one-third the sum. Therefore, the court set aside
the award of one-third made by the sessions court and granted the appellant the full
claim on hospital bills.
(3) The court did not think that the words 'proved or admitted' that the
appellant was in good health as found in s 28A(2)(c)(i) of the Act must mean that the
appellant's entire personal medical records must be tendered before the court could
consider to make an award for loss of future earnings. The fact that he had led a
normal life up to the time of the accident and had led evidence that he was 'receiving
earnings by his own labor or other gainful activity before he was injured' was
sufficient to satisfy the requirement of proof as stated in s 28A(2)(c)(i) of the Act.
(4) The issue of assessing loss of earnings is fixed. It is only in cases of loss of
support that a scaling down needs to be done, such as in dependency cases. The
court's task has been made much simpler in this case since it was the appellant
himself who was claiming for his own loss of future earnings. In the circumstances,
there was no place in this case for the applicability of the decision in Takong Tabari.
The appellant was entitled to his full award of damages without any deduction of
one-third.
Takong Tabari v Government of Sarawak & Ors and Another Appeal [1998] 4 MLJ
512
The trial judge deducted ⅓ from the total sum of general damages for loss of
dependency.
Held:
The common law practice of making deductions for contingencies, other

vicissitudes of life and accelerated payment continues to be in force as Parliament
had not expressed its intention to depart from the general system of law. Under such
circumstances, the trial judge made no error of law when he made the ⅓ deduction.
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3. BODILY INJURY CLAIM
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PAIN & SUFFERING + LOSS OF AMENITIES

Pain and Suffering and Loss of Amenities
Problems may arise in quantifying general damages. For example, pain and
suffering and loss of amenity are usually taken together. The amount awarded
depends on the type of injury and also the length of the suffering. Pain includes past
and prospective pain and pain from medical treatment.
Thirmalai & Anor v Mohamed Masry [1987] 1 MLJ 153
The plaintiff was a 32 year old married woman with 5 children. She suffered
the following injuries as a result of a road accident:
(a) fracture mid shaft right femur;

(b) fracture acetabulum of pelvis on both sides;
(c) about 10 c.m. lacerated wound over her genitals. Anterior wall of vagina
was torn and extending to urethral opening;
(d) multiple contusions and abrasions around external genitalia;
(e) 15 c.m. laceration over inguinal region on right side. This was a deep
laceration exposing the muscles and the pubic bone;
(f) 10 c.m. × 12 c.m. laceration over right knee with skin loss. The patella
was exposed;
(g) 4 c.m. laceration over dorsum of right foot;
(i) punctured wound over right forearm.
Her right leg was amputated above the knee. Sexual intercourse was
possible but painful and if conception were to occur, a caesarean was required.
Liability was admitted.
Held:
(1) taking the all important factor that the global sum assessed for several
injuries should be scaled down by reason of overlapping, the sum of $85,000 is a fair
award for general damages for all the plaintiff's injuries on all counts. $5000 should
be added for proportionate loss of earning capacity. Interest was assessed at 8% per
annum from the date of service of writ up to date of judgment.
Tan Lian Heng v Kilang Papan Aman Sdn Bhd & Anor [1987] 2 MLJ 630
On or about October 22, 1975, the plaintiff was run over by the tyre of a
forklift belonging to the first defendant and driven by the second defendant. As a
result, his right foot was crushed and deformed and he walked with a limp. The
accident occurred during and in the course of the plaintiff's employment as a forklift
attendant. The plaintiff was 17 years old at the time of the accident. He averred that
the defendants were negligent and claimed against his employers loss of wages for
40 months, expenses and general damages. Both defendants have denied liability
and the alleged negligence.
Held:
(1) on the facts disclosed in the evidence, the second defendant is wholly
liable and the plaintiff had in no way contributed to the accident;
(2) the plaintiff should be awarded damages of $28,000.00 for loss of total
earnings, $30,000.00 for pain and suffering, $16,300.00 for loss of earning capacity,
and $33,900.00 for future loss of earning capacity and interest at 3% p.a. on special
damages from the date of accident to the date of service and thereafter at 6% p.a.;
no interest on the amount for future loss of earnings; 6% p.a. on the rest of the
award from the date of service of the writ to the date of judgment and thereafter at
8% p.a.
Ong Teik Seng v Ho Swee Chee [1987] 2 MLJ 650
The defendant's car, on June 18, 1977, collided into the plaintiff while the
plaintiff was pushing his bicycle along the edge of a certain road. As a result the
plaintiff suffered the following injuries: (a) fracture of the right tibia and fibula, (b)
fracture of thoracic vertebrae 11 and 12 and 1st lumbar vertebrae, (c) ½′ shortening
of his right leg resulting in a limping gait and compensatory twisting of the spine with
probability of back pain in later years, (d) weak right leg and inability to stand for
long.
The plaintiff was 37 years old at the time of accident and was self-employed
as a carpenter earning before the accident $18 per day.
Held:
(1) the plaintiff himself had contributed to the collision. He should not have
pushed his bicycle which was without the rear red reflector, if indeed he was really
pushing and not riding it. The plaintiff must have been at the edge of the road. On the
other hand, the defendant should have been more alert and driven at a much lower
speed when passing through the small towns and should have been on the keen
look-out for people riding bicycles without lights and even those riding motor cycles
without lights and carrying more than one passenger on the pillion;
(2) liability should therefore be apportioned at 80% on the defendant and at

20% on the plaintiff;
(3) damages were assessed as follows:
(a) General damages for pain and suffering and loss of amenities i.e. for
the fracture of the right tibia and fibula, fracture of the ribs and ½′ shortening of the
right leg @ $20,000.00
(b) Special damages (agreed) @ $435.00
(c) Loss of earnings: Post-trial @ $38,400.00; Pre-trial @ $16,260.00

(d) Damages awarded was reduced by 20% accordingly.
Editorial Note
The defendant's appeal against the decision of the court in this case was
allowed to the extent that the award for future loss of earnings be substituted by an
award for loss of earning capacity in sum of $10,000.00 on the basis of 100%
liability. Half of costs of appeal to appellant. Deposit to appellant.
Lee Ann v Mohamed Sahari [1987] 1 MLJ 252
On October 3, 1982, the plaintiff, then 64 years old, was walking on a street
when she was knocked into from behind by the defendant and his motor-cycle. The
plaintiff sustained spinal injuries, resulting in paralysis from the waist down. She also
suffered a 2 c.m. shortening of a leg. The plaintiff claimed damages while the
defendant disputed liability.
Held:
(1) in the circumstances the defendant is liable to the plaintiff who was not
guilty of any contributory negligence;
(2) General Damages:
(a) fracture of a thoracic vertebra causing paralysis from the waist down:
$70,000;
(b) fracture of tibia and fibula and 2 c.m. shortening: $6,000;
(c) loss of expectation of life: $2,000;
(d) pain and suffering in connecting with bladder washings: $7,000;
(e) laceration of right elbow: $300.
All the sums mentioned above would carry 8% interest per annum from date
of service to date of satisfaction;
Wise v Kaye [1962] 1 QB 638
A young woman, then aged 20, received serious brain injuries in a motor-car
accident caused by the admitted negligence of the defendants. As a result, for three
and a half years she had been in hospital, where she was a state-aided patient,
helpless and unconscious. There was no prospect of her recovery, and she had not
and would never have any knowledge of her condition. In an action in which the sole
issue was damages, the trial judge awarded damages as follows. (1) £15,000
general damages; (2) £879 18s. 11d. special damages for loss of earnings; (3)
£2,000 damages for loss of future
On appeal:-
(Diplock L.J. dissenting), that general damages must be assessed on an
objective basis and should be in the nature of compensation for the injury suffered so
far as money was appropriate; that the facts that a plaintiff would be unable to enjoy
personally any award of damages (post, pp. 649, 650), and (except as an element in
the assessment of damages for pain and suffering) was ignorant of the loss suffered
were irrelevant; and that, in the circumstances, the award of general damages made
by the judge was not excessive.
Per Sellers L.J. The loss of future happiness is not a matter which can be
taken into account in assessing damages since money is a false standard of
assessment of man's inner feelings.
The fact that the plaintiff was unconscious of it did not eliminate the actuality
of deprivation of the ordinary experiences and amenities of life; that, the plaintiff's
loss of the amenities of her good and useful life being total, the award of £20,000
was not excessive; but that, since it was, even in the context of current money
values, a substantial sum, it was not inadequate to compensate for the plaintiff's
substantial loss.

character, was a proper subject of compensation.
Thangavelu v Chia Kok Bin [1981] 2 MLJ 277
In this case the plaintiff's son was killed in a road accident and the plaintiff
sued as administrator of the estate. Liability was agreed at 50/50 and the dispute
was as to quantum of damages. The boy was aged 13 and was working part time for
a Chinese contractor. After the accident he was in a state of coma but not totally
unconscious until he died.
Held:
(1) in this case there was an element of pain and suffering as the patient
was not totally unconscious after the accident and the sum awarded would be
$20,000 for pain and suffering and loss of amenities;
(2) the amount for loss of expectation of life would be assessed at $4,000;
Multiple Injuries
Wee Siaw Hong v Lau Siew Tick [1979] 1 MLJ 232
In this case the appellant aged 5 years had been hit by a car whilst crossing
a road. He sustained (a) multiple abrasions on the face, dorsum of right hand and left
shin; (b) fracture of the mandible left side; (c) fracture of the left tibia. The learned
trial judge awarded $2,500 general damages. The appellant appealed.
Held, allowing the appeal:
In support of the contention that the general damages were too low, various
cases were cited to show the damages awarded in respect of separate injuries.
These injuries were sustained in the same accident. It is not right to assess the
damages separately and then add them up at the end as in such cases there is
bound to be an element of overlapping.
Thus, in Mahamad bin Mahamad Said & Anor v Perianayagam & Anor
[1972] 1 MLJ 67 68 Suffian F.J., as he then was, said:—
"The items are not separate heads of compensation. They are only aids at
arriving at a fair and reasonable compensation … There is an element of overlapping
when two or more injuries are suffered simultaneously."
Muhammad bin Muhammad Said & Anor v Perianayagam & Anor [1972] 1 MLJ 67
"The items are not separate heads of compensation. They are only aids at
arriving at a fair and reasonable compensation … There is an element of overlapping
when two or more injuries are suffered simultaneously."
Yasin bin Wahab v Loo Kok Wai [1980] 2 MLJ 43
The plaintiff in this case was 26 years old and employed as a telegram
messenger at the date of collision caused by the defendant's negligence. He claimed
for damages for personal injuries sustained by him as a result of the said collision.
The plaintiff suffered deep laceration of the left forearm with 3½ inches by ¾ inch
with keloid formation; laceration on lower chin and ventral surface of the tongue;
laceration of buccal mucosa (cheek region), slight ecchymosis of lower eyelids,
fracture of the left mandible (lower jaw), fracture of the maxilla (upper jaw), fracture
of alveolar bone and loss of five teeth. The fractured mandible had united soundly
but the plaintiff still suffered discomfort on side to side movement of the mandible.
Held, allowing the plaintiff's claim:-
General damages were awarded in the sum of $19,000 taking into account
the overlapping factor. General damages were assessed in the following manner:-
deep laceration of the left forearm with 3½ inches by ¾ inch with keloid formation
($1,500); fracture of the left mandible ($7,500); fracture of the maxilla ($7,000);
fracture of alveolar bone ($4,500); loss of five teeth ($5,000).
Lau Ee Ee v Tang King Kwong [1986] 1 MLJ 308
In this case, the plaintiff, aged 19 at the time of accident, claimed against
the defendant damages for personal injuries and loss suffered by her as a result of a
road accident on August 25, 1976 when a car driven by the defendant collided with
her and knocked her down while she was standing on the grass verge of the road.
The defendant admitted full liability for negligence and the sum of $92.00 for special
damages. The only question for determination is on the quantum of general
damages for pain and suffering and loss of amenities. The plaintiff sustained the
following injuries:
She was hospitalised for 40 days, from August 25, 1976 to October 4, 1976,
and she underwent outpatient treatment periodically on 17 occasions over a period
of 3½ months.
Held, allowing the plaintiff's claim:
(1) the total sum of $25,000 as damages with interest at 6% p.a. from date
of service of writ to date of judgment, and costs, under the following heads:
(a) scalp laceration – $500.

(b) fracture of left humerus – $4,000.
(c) fractures of transverse processes and compression fractures of 3rd and
4th lumbar vertebrae – $18,000.
(d) fracture of right mandible – $6,000.
(e) liver laceration – $5,000.
From the above total sum of $33,500, a sum of $8,500 was deducted for
overlapping, giving a net figure of $25,000;
Thirmalai & Anor v Mohamed Masry [1987] 1 MLJ 153
Held:
Taking the all important factor that the global sum assessed for several
injuries should be scaled down by reason of overlapping, the sum of $85,000 is a fair
award for general damages for all the plaintiff's injuries on all counts. $5000 should
be added for proportionate loss of earning capacity. Interest was assessed at 8% per
annum from the date of service of writ up to date of judgment.
Chong Chee Khong & Anor v Ng Yeow Hin [1997] 5 MLJ 786
Held:
It is reasonable to make a global award in cases of claims for injuries.

However, since the first plaintiff had suffered injuries to different parts of the
anatomy, it was justifiable to break up the award to various categories before the
process of overlapping could be applied. With regard to the injuries to the first
plaintiff, he was awarded a total sum of RM56,000 before applying the process of
overlapping.
“At this stage, I must consider Mr Manikam's plea that I award damages for
the scars and osteoarthritis. I make no award for the scars. The scars were as a
result of the operations conducted. They become an integral part of the award that
has already been made. An express award of damages of the scars which arose out
of the need to operate, is a clear example of duplicating awards. I will however make
the conventional award of RM3,000 for the osteoarthritis.”
Tan Cheong Poh & Anor v Teoh Ah Keow [1995] 3 MLJ 89
Held:
Where disabilities stem from one injury, the extent of overlap will be such
that there would be a merger and hence, allowance for overlapping in computing the
award for pain and suffering and loss of amenities is not good enough. In this case,
all the disabilities suffered by the plaintiff stemmed from one injury, ie the brain
damage, and thus, the judge was right in making a lump sum award instead of
making separate assessments for physical and intellectual disabilities, and to allow
for overlap thereafter.
LOSS OF EXPECTATION OF LIFE
S.28A(2)(a) Civil Law Act 1956 (as amended) - post 1984
(2) In assessing damages under this section—

life caused to the plaintiff by the injury.
Flint v Lovell [1935] 1 KB 354 - pre 1984 case
A plaintiff met with an accident through the negligence of the defendant and
sustained serious personal injuries whereby the expectation of his life was materially
shortened. The plaintiff brought an action to recover damages for the injuries he had
sustained:-
Held (by Greer and Slesser L.JJ., Roche L.J. dubitante):
In assessing the damages the judge was entitled to take into consideration as
one of the elements of damage the fact that the plaintiff's normal expectation of life
had been materially shortened.
Lee Ann v Mohamed Sahari [1987] 1 MLJ 252 - pre 1984 case
Held:
(1) in the circumstances the defendant is liable to the plaintiff who was not
guilty of any contributory negligence;
(2) General Damages:
(a) fracture of a thoracic vertebra causing paralysis from the waist down:
$70,000;
(b) fracture of tibia and fibula and 2 c.m. shortening: $6,000;
(c) loss of expectation of life: $2,000;
(d) pain and suffering in connecting with bladder washings: $7,000;
(e) laceration of right elbow: $300.
All the sums mentioned above would carry 8% interest per annum from date of
service to date of satisfaction;
LOSS OF FUTURE EARNINGS
NOTES
S.28A Civil Law Act 1956 (as amended)
(1) In assessing damages recoverable in respect of personal injury which

does not result in death, there shall not be taken into account -
force of this Act;
(b) any pension or gratuity, which has been or will or may be paid as result
of the personal injury; or
personal injury.
(2) In assessing damages under this section -

life caused to the plaintiff by the injury;
(b) if the plaintiff's expectation of life has been reduced by the injury, the
Court, in assessing damages in respect of pain and suffering caused by the injury,
shall take into account any suffering caused or likely to be caused by awareness that
his expectation of life has been so reduced;
account -
(ii) only the amount relating to his earnings as aforesaid at the time when he
was injured and the Court shall not take into account any prospect of the earnings as
aforesaid being increased at some time in the future;
(iii) any diminution of any such amount as aforesaid by such sum as is

proved or admitted to be the living expenses of the plaintiff at the time when he was
injured;
(d) in assessing damages for loss of future earnings the Court shall take
into account that -
time when he was injured, the number of years' purchase shall be 16; and
(ii) in the case of any other person who was of the age range extending
between thirty one years and fifty four years at the time when he was injured, the
number of years' purchase shall be calculated by using the figure 55, minus the age
of the person at the time when he was injured and dividing the remainder by the
figure 2.
Ting Jie Hoo v Lian Soon Hing Shipping Co [1990] 2 MLJ 56
The plaintiff had failed to show that he was unable to work till the date of the
trial. He was in a position to resume work between January and April 1986. There is
a duty on the part of the plaintiff to mitigate loss and as it was not possible to state
with certainty when the plaintiff could resume work, a middle course would be
adopted and August 1985 be taken as the time when the plaintiff could begin work.
Accordingly, loss of earnings would be calculated from the date of the accident to 6
August 1985 and a sum of $14,000 be awarded.
As the plaintiff could resume work, this was not an appropriate case to
award loss of future earnings. However, the plaintiff had suffered a loss of earning
capacity and was entitled to an award of general damages for disability suffered. The
plaintiff was 37 years old in 1985 and taking 55 as the retirement age and allowing
1/3 from this for contingencies of life, the years of purchase would be fixed at 12. A
figure of $21,500 was therefore awarded as loss of earning capacity. But there would
be no interest on this award.
Ward v Malaysian Airlines System Bhd [1991] 3 MLJ 317
In this case the appellant, an Australian national who was employed by the
respondents as a pilot, suffered a head injury and other minor injuries as a result of
an emergency crash landing of the aircraft he was piloting in Sarawak. Liability for
damages was admitted and only the issue of the quantum of damages was before
the High Court. The learned trial judge in his judgment assessed damages for the
appellant in the total sum of $301,250.
The appellant appealed (a) against the findings of fact on quantum of

damages; (b) on the legality of the deduction of $300,000 from the accident
insurance policy taken by the respondents; and (c) against the refusal of the learned
judge to order interest on general damages and costs.
Held, allowing the appeal in part:
(1) The appellant has failed to show that the assessment of damages by the
learned judge in the High Court was wrong in principle and/or wholly unreasonable.
Accordingly, the court confirmed the assessment made by the learned judge. The
award of $60,000 for pain and suffering erred, if at all, on the side of generosity and
whatever residual disability suffered by the appellant which the learned judge might
have omitted, would be sufficiently covered by that award.
(2) In this case, having regard to the nature of the scheme of the insurance
policy, the insurance benefits were not deductible both under s 28A(1)(a) of the Civil
Law Act 1956 and the common law itself. The appeal is allowed to this extent and
judgment should therefore be entered for the appellant on the full assessment sum
of $301,250.
(3) It followed that the appellant should also be entitled to interest at 8% on

the general damages from the date of service of the writ of summons to the date of
judgment as well as costs, both in the High Court and in the Supreme Court, in
addition to interest on special damages ordered in the High Court on the sum of
$1,250.
Dirkje Peiternella Halma v Mohd Noor bin Baharom & Ors [1990] 3 MLJ 103
Since the amendment of the Civil Law Act 1984 on 1 October 1984 there is
no distinction between pre-trial and post-trial loss of earnings so only one figure was
awarded.
N Vijaya Kumar s/o Narayanasamy v Voon Chen Lim [1989] 3 MLJ 225
Section 28A(2)(d) of the Civil Law Act 1956 provided that the multiplier
would be 16 minus the pre-trial period. In view that the plaintiff would not be in a
position to obtain any employment the award of future earnings would be $500 × 12
× 12 = $72,000.
MULTIPLIER
Murtadza bin Mohamed Hassan v Chong Swee Pian [1980] 1 MLJ 216
Held:
(2) in the circumstances it must be assumed that the respondent's useful

working life would usually have ended at 55 years and the sum for loss of future
earnings should be reduced to $15,633
Teh Hwa Seong v Chop Lim Chin Moh [1981] 2 MLJ 341
Held:
The plaintiff was 53 years old when the accident occurred and he is
expected to live until the age of 65 years. The plaintiff's expectancy of life would be
12 years. I would deduct ¼ of it for future contingencies. Hence, the multiplier would
be 8 years' purchase at $300 per month.
(8 × 12 × 300 = $28,800)
Osman Effendi Mahmud & Anor v Mohd Noh Khamis [1998] 5 CLJ 510
Held:
In every accident case, where it had been established that the plaintiff had
been gainfully employed immediately before the accident, there was always the
presumption that the plaintiff was in good health and his claim for loss of future
earnings was directly attributable to the injuries sustained from the accident and no
other cause of ill health prior to the accident.
There was no suggestion in this case that the first plaintiff was suffering
from any ill-health before the accident, and that being so it must be deemed to be
admitted that the plaintiff was in good health but for the injuries. The Sessions Judge
therefore had wrongly invoked section 28A(c)(i) CLA 1956, and had imposed an
unduly high burden of proof of good health on the plaintiff to qualify for an award in
damages for loss of earnings.
Section 28A(2)(c)(i) of the Civil Law Act 1956 stipulates the condition that in
order to be entitled to claim for loss of future earnings, the claimant must be
receiving earnings at the time before his injury happened. As the first appellant was
only a student at the time of the accident, his appeal in respect of prospective
earnings had to be dismissed.
Moores v Co-operative Wholesale Society Ltd (CA) Times, 9 May 1955

The plaintiff, a police officer, had been injured in a previous accident, and as
a result his prospects of continuing in the police force were very slight. The second
accident rendered him unfit for police duty.
The Court of Appeal held that the effect of the second accident was to
deprive the plaintiff of a ‘poor chance’ of continuing in the police force, and they
reduced the damages substantially from £3,000 to £1,000.
Tan bin Hairuddin v Bayeh a/l Belalat [1990] 2 CLJ 773
Ibrahim Ismail & Anor v Hasnah Puteh Imat & Anor and Anor Appeal [2004] 1 MLJ
525
Whether the High Court had the authority to reduce the multiplier below 16
as prescribed by s 7 and 28A CLA based on the Supreme Case of Chan Chin Ming &
Anor v Lim Yoke Eng.
Held:
The majority decision in Chan Chin Ming was wrong. It was the powerful
dissenting decision (of Edgar Joseph Jr SCJ) that stated the law correctly. The
majority in Chan Chin Mingfailed to apply the appropriate guide to statutory
interpretation and hence fell into error. The majority ought to have addressed the
object or purpose of the amendments introduced by Parliament by way of ss 7(3)
and 28A, which was to address the very high award of damages for personal injuries
and death.
(2) It is a cardinal guide of statutory interpretation that when a statute lays

down a specific code or formula to meet a particular mischief of the common law, it is
not open to the courts to treat themselves as at liberty to continue to apply the
common law in disregard of statute. It was this very principle that the majority in
Chan Chin Ming breached when purporting to interfere with the pre-determined
statutory formula applicable in the calculation of loss of earnings in dependency and
personal injury claims.
(3) The majority in Chan Chin Ming also overlooked the point that the
language of the statute is imperative. It says that 'the number of years purchase shall
be 16'. The mandatory tenor of the phrase employed by Parliament to convey its
message excludes any pretended exercise of judicial power to substitute some other
multiplier for that intended. The result may be unfair to insurers of vehicles. But that
is irrelevant
(4) The Court of Appeal was entitled to depart from Chan Chin Ming since it
was wrongly decided by the majority. Chan Chin Ming was decided at a point of time
when the High Court had original jurisdiction over personal injury and fatal accident
claims. Appeals were then preferred to the Supreme Court which stood at the apex
of the judicature. However today, the Court of Appeal stands at the apex of personal
injury and fatal accident claims. Thus if a decision of the former Supreme Court is
obviously wrong, it would be the duty of the Court of Appeal to say so.
(5) In the first case, the courts below were clearly wrong in failing to reduce
the damages for bereavement despite a finding of contributory negligence against
the deceased. The defendant's appeal in this regard was therefore irresistible and
should be allowed. The plaintiff's cross appeal against the reduction of the multiplier
by the High Court was equally irresistible and should be allowed. Chan Chin Ming
(the majority) did not say that there must be a reduction of the multiplier in every
case. All it says is that despite the imperative statutory direction it was still possible in
a given case for a court to substitute a multiplier of less than 16. There was thus no
duty on the High Court to reverse and reduce the multiplier in any event.
Chan Chin Ming & Anor v Lim Yoke Eng [1994] 3 MLJ 233
Held by a majority, allowing the appeal and reducing the award to

RM24,375 (Edgar Joseph Jr SCJ dissenting in part):
(1) Under s 7 of the Act, the persons entitled to claim loss of support in
respect of a deceased person are the wife, husband, parent and child only, not
including a brother or a sister. The only person entitled to claim in the instant appeal
would, therefore, be the plaintiff. Therefore, the sum of RM750 per month as the
monthly net loss of support was reduced to RM375 per month.
(2) (Per Peh Swee Chin SCJ) The state of the general system of law
relating to a parent's claim as a dependant for loss of support in respect of an
unmarried child before the enactment of sub-para (d) was that such loss of support
would either cease or be reduced considerably on the almost invariable contingency
of the subsequent marriage of the unmarried child. If the judge was right in holding
that the possibility of marriage of the deceased had he lived was one of the factors
which had been taken into account as having been built into the statutory formula of
16 years' purchase, it would mean that this aspect of the law was swept away or
changed. It was highly improbable that Parliament would depart from the general
system of law without expressing its intention with irresistible clearness which was
missing in this case.
(3) (Per Peh Swee Chin SCJ) The numbers of years' purchase was reduced
to seven years and from that, the court deducted pre-trial loss of support up to the
date of trial which would ordinarily have been awarded. The future loss of support
was thereby reduced to RM24,375.
(4) (Per Edgar Joseph Jr SCJ (dissenting in part)) In enacting the detailed
provisions of s 7(3)(iv)(d), Parliament had intended to take away the discretion of the
court to select the appropriate multiplier in assessing loss of earnings of a deceased
person for purposes of a claim for loss of support under s 7(1). Otherwise, the court
could rewrite the statute or brush aside explicit statutory provisions and select, in the
exercise of its discretion, a suitable multiplier.
(5) (Per Edgar Joseph Jr SCJ) Contingencies such as the probability of the
deceased marrying had he not died in the accident and, as a result, his contributions
for the support of his mother ceasing or being considerably reduced, have been built
into the statutory formula of 16 years.
(6) (Per Edgar Joseph Jr SCJ)The court is not at liberty to reduce the
number of years' purchase from 16 years to seven years, or at all. For the same
reason, the court has no discretion to make any deductions from the number of
years' purchase, the period for which the court might have awarded pre-trial loss of
support up to the date of trial.
(7) (Per Edgar Joseph Jr SCJ) As the court has no discretion to alter the
statutory multiplier, then equally, it cannot indirectly do so by reducing the
multiplicand.
(2) (Per Peh Swee Chin SCJ) The duration of loss of support sustained by a
parent in respect of an unmarried child ordinarily and simply cannot be ever so long
as the duration of the loss of support sustained by a widow and her children in
respect of her husband, for example.
(3) (Per Edgar Joseph Jr SCJ) The fact that the deceased had provided his
mother with funds not only to maintain herself but also to enable her to carry out the
duty imposed upon her by ss 3 and 6 of the Guardianship of Infants Act 1961, being
responsible for the support, health and education of her school-going children, would
afford no grounds to justify the court in expanding the class of person specified
under s 7(2) of the Act as being entitled to make a claim for loss of support.
Additionally, a claim to increase the value of the loss of support based upon the
consideration of such obligations of the mother would not have been reasonably
foreseeable by the defendant tortfeasors and would, therefore, be bad for
remoteness.
Pickett (Administratrix of the Estate of Ralph Henry Pickett Decd) v British Rail
Engineering Ltd [1980] AC 136
The injuries suffered by the plaintiff may be such that his life expectancy
would have been reduced thus reducing the balance of the plaintiff’s working life.
This loss of working year is known as lost years.
The claimant, suffering from mesothelioma, had claimed against his

employers and won, but his claim for loss of earnings consequent upon his
anticipated premature death was not allowed. He began an appeal, but then died.
His personal representatives appealed.
Held:
The House assumed that, because the claimant had brought a successful
claim for his personal injury, a claim by his dependants under the Fatal Accidents Act
was precluded, although Lord Salmon emphasised that he expressed no concluded
opinion about the correctness of that assumption.
Damages could be recovered for loss of earnings in the claimant’s lost
years. Only in this way could provision be made for the loss to be suffered by the
dependants.
Referring to Skelton: ‘The judgments, further, bring out an important

ingredient, which I would accept, namely that the amount to be recovered in respect
of the earnings in the ‘lost’ years should be that amount after deduction of an
estimated sum to represent the victim’s probable living expenses during those years.
There is the additional merit of bringing awards under this head into line
with what could be recovered under the Fatal Accidents Acts.’
S.28A(2)(c)(i) Civil Law Act 1956 (as amended)
account -
S.28A(2)(d)(i) Civil Law Act 1956 (as amended)
(d) in assessing damages for loss of future earnings the Court shall take
into account that -
time when he was injured, the number of years' purchase shall be 16;
MULTIPLICAND
NOTES
Issue of part-time earnings.
Held:
As reflected by the job held by the first plaintiff, he was not a highly
educated man and his physical strength was his only asset to pep up his monthly
income. The first plaintiff's own evidence, which were not contradicted, established
that he could not walk normally or carry heavy work. With the first plaintiff now
physically weakened through no fault of his, he should not be deprived of the income
of his part-time job and suffer an uncertain future, just because the defendant had
canvassed that the first plaintiff could seek out some other part-time job. After
pondering the matter to its extremity, this court was unable to pinpoint any job which
the first plaintiff could take up that did not require physical strength. With the weight
of evidence against the view of the conclusions of the learned sessions court judge,
the order pertaining to the pre-judgment loss of income was accordingly varied. The
pre-judgment period was three years and four months. On the premise of the
accepted RM4,200 per year multiplied by three years (ie RM12,600), and adding to it
a sum of RM1,200 (ie RM300 4 month), the pre-judgment loss of earning of
RM13,800 was awarded. As for the future earnings and adverting to the formula in s
28A of the Civil Law Act 1956, the multiplier arrived at was 5.5 years (that is, 55
minus his age of 44, and thereafter dividing the difference by 2). Accordingly, a sum
of RM23,000 (or 5.5 years multiplied by RM4,200) for loss of future earnings.
PROSPECTIVE INCREASE
Lai Chi Kay v Lee Kuo Shin [1981] 2 MLJ 167
The first plaintiff, Lai, was 24 years old and a fourth year medical student
at the University of Singapore, at the time of the accident. Lai was from Hong Kong
on a Singapore Government Scholarship. As a result of the accident he suffered
extensive brain injuries, crushing all his hopes of being a doctor. He was discharged
from hospital in April 1978 and resumed medical studies for some time. In January
1980, the Medical Board convened for his case and was of the view that it was most
probable that he would never be able to complete the medical course as a result of
the injuries sustained by him in the said accident. In May, 1980, Lai on the
recommendation of the Board, took up Radiography. Four months later he had to
abandon it as he could make no headway. Lai was subsequently not gainfully
employed.
Held:
The reasonable and fair basis to ascertain his loss of future earnings
would be a sum of representing the mean between the maximum and minimum
salaries in the Hong Kong Medical Service. That would be in the region of
HK$10,000 per month equivalent to S$5,000 per month. Based on a multiplier of 15,
the figure for loss of future earning arrived at S$622,800.
The first plaintiff was awarded S$727,514 and costs and the second
plaintiff was awarded S$8,500 and costs.
Mohamed Ibrahim & Anor v Christopher Piff & Anor [1981] 1 MLJ 221
The second respondent, a school girl aged 7 years was involved in an

accident whilst being driven in her father's car with a bus driven by the 1st appellant.
The accident resulted in brain damage. Liability was admitted and the appeal was
only on the quantum of damages. It was argued (a) that special damages for air
passages to London and back for the whole family should be reduced; (b) that the
sum of$65,000 awarded for the expenses of special schooling was far too much.
Held:
(1) in the special circumstances of this case the special damages

awarded for air passages for the family should remain unaltered;
(2) the sum awarded for the expenses of special schooling was justified.
Nordin bin Hj Abdul Wahab v Mohamed Saleeh [1986] 2 MLJ 294
In this case the respondent, a Lance-Corporal in the army, was injured in

a road accident. As a result of the accident he sustained the following injuries –
a) compound comminuted fracture of the upper 1/3 left tibia and fibula;
b) fracture of the lower 1/3 radius and segmental fracture of left ulna.
The learned trial judge considered that the respondent had a good
chance of promotion eventually to Warrant Officer II and he computed the losses up
to September 30, 1990 at $58,137.66. He also computed the reduction of future
earnings at $25,588. The appellant appealed.
Held:
In this case the trial judge was not realistic in considering the promotion
prospects of the respondent, in that in real life an officer does not get promoted
every three years in clockwork precision. Considering the whole of the evidence the
respondent would have been promoted at the most to full Sergeant by the end of his
military career.
The pre-trial and post-trial losses of earnings would therefore be

assessed at $27,022 and the reduction in future earnings at $12,800.
Marappan v Siti Rahmah [1990] 1 MLJ 99
Allowance = earnings
In this case, the respondent was involved in an accident whilst she was
riding a bicycle. She was knocked down by a motor car driven by the first appellant
who was a servant of the second appellant. She suffered severe head injuries with
contusion of the brain and fracture of the skull resulting in complete paralysis of all
her four limbs. Liability for the accident was agreed to by the parties at 35% against
the respondents and 65% against the appellant.
Held, dismissing the appeal:
Chan Ming Feng & Anor v Jackson Lim @ Jackson ak Bajut [1999] 1 MLJ 1
Actual increase in salary
The respondent met with an accident and sustained serious injuries

which the appellants were held by the sessions court to be wholly liable. When the
respondent resumed work, he could only perform light duties and was not able to do
offshore work anymore as an offshore production technician. The appellants
appealed against the quantum of damages awarded to the respondent in the
sessions court.
In respect of the second appeal, counsel submitted that the sessions

court judge, when assessing the loss of the respondent's future earnings, had failed
to take into account the increase in his basic salary at the date of the trial. Counsel
for the respondent, relying on s 28(2)(c)(ii) of the Civil Law Act 1956 ('the Act'),
argued that the increase in the basic pay should not be taken into account and that
the respondent's losses were his offshore allowances which were separate from his
salary.
Held, allowing the second appeal:
The trial judge had erred in assessing the loss of future earnings of the
respondent by failing to take into account the increase in the basic salary of the
respondent at the date of the trial. Section 28A(2)(c)(ii) of the Act does not prevent
the court from taking into account the actual increase in the basic salary which the
respondent was earning at the date of the trial. The overall earnings must be
considered to see whether there was any loss and this would also include the
respondent's allowances. As such, the sessions court's award of RM61,500 for loss
of future earnings is set aside and substituted by the award of RM10,872.
(c) in awarding damages for loss of future earnings the Court shall take
into account -
(i) that in the case of a plaintiff who has attained the age of fifty five years
or above at the time when he was injured, no damages for such loss shall be
awarded; and in any other case, damages for such loss shall not be awarded unless
it is proved or admitted that the plaintiff was in good health but for the injury and was
S.28A(2)(c)(ii) Civil Law Act 1956 (as amended)
(ii) only the amount relating to his earnings as aforesaid at the time when
he was injured and the Court shall not take into account any prospect of the earnings
as aforesaid being increased at some time in the future;
DEDUCTION OF LIVING EXPENSES
S.28A(2)(c)(iii) Civil Law Act 1956 (as amended)
(iii) any diminution of any such amount as aforesaid by such sum as is

proved or admitted to be the living expenses of the plaintiff at the time when he was
injured;
Marappan & Anor v Siti Rahmah bte Ibrahim [1990] 1 MLJ 99
Held:
There was no proof or admission as to what was the actual living

expenses of the respondent at the time she was injured and therefore the learned
judge rightly did not make any deduction for living expenses.
Harcharan Singh a/l Saudagar Singh v Hassan bin Ariffin [1990] 2 CLJ 393
The court did not make any deductions to take into account the plaintiff’s
living expenses since it was not proven or admitted to.
Chan Sau Chuan v Choi Kong Chaw & Yap Yun Chan [1991] 1 CLJ 297
“Bearing in mind that at the date of the trial the plaintiff had reached the
age of 50 years I think 2 years' purchase is the proper multiplier to be used for
assessing the loss of future earnings. Out of his monthly earning I have held that his
living expenses amount to RM1000. Therefore he would have only RM2500 which
he could use to give to his family. The award for loss of future earnings is therefore
RM2500 x 12 x 2 = RM60,000.”
Chang Chong Foo v Shivanathan [1992] 2 MLJ 473
Held:
Section 28A(2)(c)(iii) applied to this case as s 28A is intended for a living

plaintiff. In assessing the damages for loss of future earnings, the learned judge
should have made a deduction for living expenses of the plaintiff which is comprised
of the amount spent on petrol for his motor cycle and the cost of his meals at work.
The loss of future earnings should be reduced to $20,640.
Tan Kim Chuan & Anor v Chandu Nair [1991] 2 MLJ 42
The Supreme Court had opined that in personal injury cases, in respect
of personal injury which does not result in death, the assessment of damages is
governed by section 28A.
Tey Chan & Anor v SEA Insurance Bhd [1993] 3 MLJ 760
Held:
As to loss of earnings, the living expenses to be deducted under s 28A(1)

(c) of the Civil Law Act 1956 were not the whole of the plaintiffs' expenses of living
but the expenses reasonably incurred by them in earning their living, such as the
extra cost of having meals and refreshment while at work, which cost would not
ordinarily have been incurred had they stayed at home. Accordingly the first plaintiff's
deductible living expenses were RM200 while the second plaintiff's were RM100 per
month.
Abdul Ghani bin Hamid v Abdul Nasir bin Abdul Jabbar & Anor [1995] 4 MLJ 182
Held:
A deduction from the plaintiff's earnings for maintenance could only be

made if the amount was either admitted by the plaintiff or proved by the defendant.
REDUCED WORKING ABILITY
Lim Eng Kay v Jaafar bin Mohamed Said [1982] 2 MLJ 156
He was a teacher on no-pay leave in order to enable him to obtain a

higher qualification. He had more than a secured job because by an agreement
which he signed on December 18, 1972 he was under an obligation to serve the
government for seven years after completing his studies at the university.
Thus irrespective of success or failure of his university studies, he

definitely had a secured job waiting for him. Now because of the accident he has
become unemployed. We have no evidence whether his service as a teacher was
terminated by the government but in view of the undisputed fact that the respondent
is unemployed we assume that because of his injuries he could not be taken back
into teaching service and so his service was terminated.
Therefore it is clear that the accident has not only robbed him of the
chance — a very good chance — of graduating which would have led him to earn a
bigger salary but also deprived him altogether of the job which he once had. This is a
very real and substantial loss and indeed a total loss of earning as far as teaching is
concerned because he could not even give private tuitions which his father had
arranged for him.
The learned judge was right in holding that the respondent was capable
of doing certain work. This is definitely confirmed by Dr. Bala Ratnam who said in his
report that the respondent's "ability to learn a self-supporting trade is guarded". It is
of course a matter of conjecture as to what that self-supporting trade is.
YOUNG CHILDREN
Held:
In upholding the right of the second respondent to damages for loss of

future earnings capacity, the Federal Court accepted and applied the correct
principles. If damages were to be a fair and adequate compensation for a plaintiff
who is expected to live for many years during which time he will be unemployed or
his earning capacity substantially reduced, it will be necessary to assess his future
loss, difficult though the task may be in cases where the victim is a child. Though
difficult, the court must do the best it can upon the evidence.
Yang Yap Fong v Leong Pek Hoon [1987] 2 MLJ 201
In this case the first appellant was injured when the motorcycle on which
he was a pillion rider met with an accident with a motor car which was driven by the
first respondent as the servant or agent of the second defendant. The first appellant
was 13 years old at the time of the accident and the suit was filed by his father and
next friend the second appellant.
According to the medical expert evidence the changes in the right ankle
joint will be likely to aggravate in the next 5 or 10 years. The learned judge held that
the appellant was not entitled to any future loss of earning capacity, but he awarded
out of a desire to assist him the sum of $1,800/- as loss of prospective earnings
during hospitalization and recuperation and not as loss of future earnings or loss of
earning capacity. He assessed the award at $200/a month for a period of nine
months.
(1) the award of $1,800/- appeared to be pre-trial loss of earnings which

the appellant was not entitled to claim being unemployed at the material time;
(2) the learned Judge erred in refusing to make any award for future loss
of earning capacity. There was more than sufficient evidence of the likelihood that
the appellant will be able to obtain employment and that in five or ten years the injury
to his right ankle will aggravate with osteoarthritis setting in and increasing as he
grows older and will thereby affect his earning capacity;
(3) the Court awarded him $12,000 for future loss of earning capacity
based on a loss of income of about $100 a month for fourteen years;
(4) the award of $1800/- should be set aside.

Tan Kim Chua & Anor v Chandu Nair [1991] 1 MLJ 42
In this case the plaintiff-respondent was 12 years old when he was

injured in a road accident. He was then a student and not earning anything. He
claimed damages for his injuries and the learned judge awarded him a sum of
$67,200 as general damages for prospective loss of future earnings. The appeallants
against whom the award was made appealed. It was argued that s 28A(2)(c)(i) and
(ii) of the Civil Law Act 1956 precluded and barred the making in this case of an
award in general damages for prospective loss of future earnings or loss of earning
capacity.
It is abundantly clear that the legislature in enacting s 28A(2)(c) of the

Civil Law Act 1956, has decided that an injured person ought not to get any damages
either for loss of future earnings or loss of earning capacity unless before the
accident (at the date of the accident) he was in fact receiving earnings. The award
for loss of earning capacity in this case must be quashed.
S.28A(2)(c)(i) Civil LAw Act 1956 (as amended)
into account -
UNEMPLOYED VICTIM
Lai Chi Kay v Lee Kuo Shin [1981] 1 MLJ 167
The first plaintiff, Lai, was 24 years old and a fourth year medical student
at the University of Singapore, at the time of the accident. Lai was from Hong Kong
on a Singapore Government Scholarship. As a result of the accident he suffered
extensive brain injuries, crushing all his hopes of being a doctor. He was discharged
from hospital in April 1978 and resumed medical studies for some time. In January
1980, the Medical Board convened for his case and was of the view that it was most
probable that he would never be able to complete the medical course as a result of
the injuries sustained by him in the said accident. In May, 1980, Lai on the
recommendation of the Board, took up Radiography. Four months later he had to
abandon it as he could make no headway. Lai was subsequently not gainfully
employed.
Held:
The reasonable and fair basis to ascertain his loss of future earnings
would be a sum of representing the mean between the maximum and minimum
salaries in the Hong Kong Medical Service. That would be in the region of
HK$10,000 per month equivalent to S$5,000 per month. Based on a multiplier of 15,
the figure for loss of future earning arrived at S$622,800.
The first plaintiff was awarded S$727,514 and costs and the second
plaintiff was awarded S$8,500 and costs.
into account -
ASSESSMENT OF DAMAGES
pre-amendment 1984 : multiplicand x multiplier (lost years) = future loss of

earnings
post-amendment 1984 : S.28A(2)(d)(i) & (ii) : multiplicand x fixed multiplier = future

loss of earnings
Lai Wee Lian v Singapore Bus Service [1984] 1 MLJ 325
Held:
(1) the award for future loss of earnings in the present case which was used
by taking a multiplier of 10 and using the tables was completely inadequate. The
appropriate figure for the multiplicand should be $600 per month or $7,200 per
annum and the appropriate multiplier to be directly applied according to the English
practice should be 15 years, to allow for discounting the initial figure of 28 in respect
both of future contingencies and advance payment.
(2) the total for loss of future earnings should therefore be $108,000 which
should be rounded off to $100,000.
Marappan & Anor v Siti Rahmah bte Ibrahim
Held:
In view of the provisions of s 28A(2)(d) of the Civil Law Act 1956, the
learned judge was right in awarding a multiplier of 16 in this case.
The learned judge had not misdirected himself in applying the direct
multiplier rather than using the annuity tables in calculating the award of damages for
the cost of future care and loss of future earnings in this case.
LOSS OF EARNING CAPACITY
Azizi Amran v Hizzam Che Hassan [2003] 7 CLJ 509
Able to resume job - give up job due to effect of injuries in the future - find
easier or give up job.
Held:
The question of loss of earning capacity should only be raised if there is a

substantial or real risk that the plaintiff will lose his present employment at some time
before the estimated end of his working life. In this case, the plaintiff not only did not
on his own free will return to his former employment despite the employer's
willingness to consider giving him a sedentary job, but chose instead to be a
labourer, whereby he has to do all those functions that the specialist said he would
find difficulty in doing, namely squatting, going up and down the stairs and carrying
heavy loads. Clearly, this is a fanciful case of the plaintiff losing his employment.
Chan Sau Chuan v Choi Kong Chaw & Yap Yun Chan [1991] 1 CLJ 297
Held:
C is not entitled to loss of earning capacity - the principle in Ngooi Ku Siong &
Anor. V. Aidi Abdullah [1984] 1 CLJ 294, does not apply as since C had already lost
his job the injuries sustained by him disabled him from working and in respect of that
disability he has been compensated by loss of future earnings.
Moeliker v Reyrolle & Co Ltd [1977] 1 All ER 9
The court considered the principles for the award of damages for future loss of
earning capacity.
Held:
The court distinguished between an award for loss of earnings and

compensation for loss of earning capacity. The latter head of damage arose where a
plaintiff was at the time of trial in employment but there was a risk that he might lose
that employment at some time in the future and by then, as a result of his injury, be
at a disadvantage in getting another job or an equally well paid job. That was a
different head of damage from an actual loss of future earnings which could be
proved at the time of the trial.
Pengarah Institut Penyelidikan Perubatan v Inthra Devi [1988] 1 MLJ 19
Held:
There is no evidence that the first respondent would lose her job as a dental
surgery assistant and therefore the award for loss of earning capacity should be
quashed.
Krishnan & Anor v Chow Wing Khuan [1987] 2 MLJ 691
Held:
In the circumstances there was substantial or real risk that the respondent will
be unable to carry on his work as a tractor driver but would get a less paid
employment or source of earning because of the effect of the injuries sustained. He
should therefore be awarded damages for loss of earning capacity instead of loss of
future earnings. The sum of $32,000 would be fair and reasonable compensation
assessed at $300 p.m. for a period of twelve months' purchase. The sum of $62,000
awarded is manifestly excessive and is set aside and substituted with the sum of
$32,000.
Yang Yap Fong v Leong Pek Hoon [1987] 1 MLJ 201
Held:
The learned Judge erred in refusing to make any award for future loss of
earning capacity. There was more than sufficient evidence of the likelihood that the
appellant will be able to obtain employment and that in five or ten years the injury to
his right ankle will aggravate with osteoarthritis setting in and increasing as he grows
older and will thereby affect his earning capacity;
Mohd Yusof bin Abdul Ghani v Tee Song Kee & Anor [1995] 3 CLJ 738
Held:
Translating the principle enunciated in Moeliker v. R. Reyrolle & Co. Ltd. to the
facts of the present case, there was not an iota of evidence to show that there is a
substantial, let alone a real risk, that the plaintiff would lose his Government job as a
teacher at some time before the estimated end of his working life. Bereft of this kind
of evidence and based on the available evidence, the plaintiff has not proved his
entitlement to loss of earning capacity and no award could therefore be made under
this head.
Chai Yee Chong v Lew Thai [2004] 2 MLJ 465
Held:
As to loss of future earnings, the evidence showed that the plaintiff's injuries
did not affect his work as a tractor driver and after his recovery, he was earning more
as a tractor driver than he had been earning in the mine where he was injured. As
such, there should have been no award for loss of future earnings.
Dirkje Paiternella Halma v Mohd Noor bin Baharom & Ors [1990] 3 MLJ 103
Lost of earning capacity after amendments - silent - decided case - not

affected
Held:
The appellant is entitled to be compensated for her loss of earning capacity.

There was evidence that she was earning $1,270 per month and there was also
evidence that after the accident she was practically a vegetable and would have to
be nursed for the rest of her working life.
The appellant has suffered total loss of earning capacity. Such loss in her case
would last for the rest of her working life which is roughly another 30 years. Taking
into account all past and future contingencies, the fact that the appellant was earning
$1,270 per month, her age at the time of the accident and the multiplier fixed by the
legislature in the case of loss of future earnings, the court held that the appellant is
entitled to a sum of $200,000 for loss of earning capacity, which together with the
$80,000 already awarded for pain and suffering as agreed by the parties, would
make a total of $280,000 as a fair and reasonable award under general damages.
Tan Kim Chuan & Anor v Chandu Nair [1991] 1 MLJ 42
It is abundantly clear that the legislature in enacting s 28A(2)(c) of the Civil

Law Act 1956, has decided that an injured person ought not to get any damages
either for loss of future earnings or loss of earning capacity unless before the
accident (at the date of the accident) he was in fact receiving earnings. The award
for loss of earning capacity in this case must be quashed.
FUTURE CARE EXPENSES
Udhaya Kumar Karuppusamy & Anor v Penguasa Hospital Daerah Pontian & Ors
[2004] 2 MLJ 661
Held:
The court awarded RM200,000 for loss of amenities due to severe mental
retardation and although no evidence was led it must stand to reason that the first
plaintiff would need constant care. That would involve expense. The sum sought was
moreover not unreasonable. The award was a sum of RM600 per month towards
pre-trial and post trial nursing care for 35 years.
Bujang Mat & Anor v Lai Tzen Hai & Anor [2004] 6 MLJ 376
“Was the learned sessions court judge wrong in adopting a multiplier of 47

years?
Counsel for the defendants says that she should have accepted a life
expectancy of 40 years and not 47 in this case. I regret I cannot agree with this
submission. In my view the learned sessions court judge was entitled to accept the
evidence of Dr Ching Hing San that the first plaintiff's injuries would not shorten his
life and that the average Malaysian male's life expectancy is 69.4 years. There was
also evidence before the court that the first plaintiff was being well cared for and had
shown marked progress in his condition and so there is every reason to believe that
what Dr Ching said will be borne out. In the circumstances, it was not unreasonable
for the learned sessions court judge to accept 47 years as the multiplier.
I next consider whether the learned sessions court judge had applied the
wrong multiplicand. On this question, I would like to deal first with the first plaintiff's
cross-appeal. The amounts which he says he should have been awarded for cost of
future nursing care, ie RM2,488,320 or alternatively RMl,555,200 are calculated
using a multiplicand of RM6,480 per month which is cost if the first plaintiff is
professionally cared for by Dr Johnical (PW7) and thereafter applying a 100%
contingency for increase of future costs. In fact, the main thrust of the first plaintiff's
submissions on this point is that the learned sessions court judge should have found
that the first plaintiff should be placed under the care of Dr Johnical.
Now, a reading of the learned sessions court judge's judgment shows that
despite the submissions made to her on the point by counsel for the first plaintiff, she
came to a finding that it was not necessary for the first plaintiff to be provided
professional nursing care by Dr Johnical because 'based on the tremendous
progress the first plaintiff had made and his appearance in court the loving care
lavished on the first plaintiff by his parents was definitely beneficial to his well-being'.
And the learned sessions court judge went on to say that it was not necessary
for the first plaintiff to be placed in the full time care of Dr Johnical because 'it
appears to me that they (his parents) were able to nurse and care for him... despite
their lack of formal nursing training'. In the circumstances the learned sessions court
judge came to a finding that it would be more reasonable to allow for the cost of
hiring a domestic help to assist the first plaintiff's parents.
In my judgment, there was sufficient evidence before the learned sessions

court judge to enable her to arrive at her finding on the point. She was entitled to rely
on the evidence given by Dr Lim Ming Ann (PW1) about the significant improvement
to the first plaintiff's physical condition. Dr Lim said that this is what he found from his
brief examination of the first plaintiff just before he gave evidence in court. There was
also the evidence of Dr Ching Hing San regarding the first plaintiff's improved
condition, and all this while under the loving care of the first plaintiff's parents,
particularly the mother. There was also the learned sessions court judge's own
observation of the first plaintiff in court from which she was able to arrive at her
finding. I accordingly find no merit in the first plaintiff's contention that he should have
been awarded RM2,488,320 or alternatively RM1,555,200 for cost of future nursing
care.
With regard to the first plaintiff's submissions that the learned sessions court
judge should have allowed a 100% contingency to cater for increase in future costs
as was done in Asainar's case, it is my view that each case must be decided on its
own facts and that Asainar's case was not trying to lay down any principle of general
application. It should not be overlooked that in that case the court was there dealing
with a very young plaintiff and trying to do justice as best it could in the
circumstances of that case.”
Asainar Sainudin & Anor v Mohamad Salam Sidik [2005] 5 MLJ 104
Held:
For the estimation of contingency, the court would take the following
considerations. The 16 years formula under s 28A of the Act assumes that the lump
sum is invested at 6.25%pa, and thus generating indefinitely the intended monthly
payment. In seeking to estimate a contingency to account for future cost increases of
nursing care, diapers and wheelchairs, an assumption of cost increases of up to that
magnitude was not unreasonable. An assumption that the respondent could expect
to live to 60 years of age was neither too optimistic nor too pessimistic. Considering
that the respondent may be expected to live for another 46 years, a contingency of
100%, ie to double the present day costs was to be applied.
Held:
The appellant accepts that this is an element in damages for personal injury
provided always that there is evidence that care will be necessary. Their Lordships
need say no more than that the findings of the trial judge, fully justified as they were
by the medical evidence, strongly support the inference drawn by the Federal Court
that there would be a continuing need for care, including nursing services. The
Federal Court, using its local knowledge, estimated a reasonable figure in terms of
current money; they applied an appropriate multiplier and gave effect to all
necessary discounts. Their Lordships, therefore, reject the criticisms made of the
Federal Court's judgment.
Teoh Suan Eng v Lew Meng Shin & Anor [1982] 2 MLJ 289
Held:
The plaintiff was awarded agreed special damages services of a maid up to

date of judgment: $9,000.
Donnelly v Joyce [1974] QB 454
A minor, aged six years, having sustained leg injuries in a road accident,
included in his claim for damages (i) the travelling expenses of his parents to and
from hospital on visits; (ii) the cost of special socks and surgical boots; and (iii) two
years loss of wages incurred by his mother who had to give up her job in order to
nurse and look after him. Items (i) and (ii) were not contested by the defendant but
(iii) was disputed on the basis that as there was no legal obligation to reimburse his
mother such a claim could not succeed.
The trial court awarded the plaintiff £147 representing the mother's loss of
wages for six months. On appeal it was held that since the loss to the plaintiff caused
by the defendant's wrongdoing included the existence of the need for the nursing
services provided by his mother he was entitled to recover her loss of wages of £147
as the proper and reasonable cost of supplying that need.
Croke v Wiseman [1981] 3 All ER 852
Held:
Although the mother had no separate cause of action and could not herself
claim for any loss of her pension rights, the judge had been entitled to add a further
sum of £7,000 for the loss of her pension rights to the damages awarded to the
infant for the future cost of parental nursing care since it was an element to take into
consideration in deciding the fair sum to award for that cost and it should form part of
the sum available to pay the parents for their future nursing care
Ahmad Daman Huri bin Hussen v Koo Chin Yau [1990] 3 MLJ 53
Held, awarding damages to the plaintiff as follows:
(1) The plaintiff was completely helpless in that his mental faculties were so
reduced that he was unable to attend to his own needs. From a normal healthy
person he has now been reduced to a living body without a spirit. Apart from the pain
suffered, he has been deprived of any enjoyment of life. In the circumstances, he
was awarded $90,000 in general damages.
(2) The plaintiff is entitled to claim compensation for the value of services that
his wife rendered. Taking into consideration the distressing work which a person has
to do to attend to the needs of the plaintiff, the value of nursing care was assessed at
$400 per month. For the pre-trial period of 47 months, the sum awarded was
$18,800. For the post-trial period of 60 months, the sum awarded was $24,000.
(3) Agreed special damages, pre-trial loss of earnings and the award on the
cost of pre-trial nursing care to carry interest at 4% pa from the date of the accident
to the date of trial. The award for general damages to carry interest at the rate of 8%
pa from the date of service of the writ to the date of judgment. No interest was
awarded in respect of agreed damages for loss of future earnings and on the cost of
post-nursing care. The plaintiff was also awarded costs of the proceedings.
Wong Li Fatt (an infant) v Haidawati bte Bolden [1994] 2 MLJ 497
Held:
As for the cost of past nursing care, the court awarded the sum of RM260 per
month for 12 months (ie the period for which the infant plaintiff's father had helpers
working for him) and subsequently, RM300 per month until the date of judgment for
services rendered by the infant plaintiff's mother in looking after him, taking into
account the fact that she would still have had to take care of him even if he had not
been injured. As for the cost of future nursing care, the sum of RM300 per month
was awarded and, adopting a multiplier of 10, this amounted to RM36,000.
LOSS OF CONSORTIUM
Bas Mini Muhibbah Sdn Bhd v Abdullah bin Salim [1983] 2 MLJ 405
The plaintiff's wife was run down by a bus resulting in injuries to her left leg
which had to be amputated. She remained in hospital for 6 weeks. She had sued the
bus company and recovered damages. The husband then brought an action against
the bus company for loss of consortium. He said that as a result of the accident, his
wife had resiled from his physical and moral companionship. She was by her
physical and mental state no longer in a position to give him the comfort and care
she once gave as a wife. The psychiatrist's report had certified that she was suffering
from a schizophrenia simplex with a secondary depression following the amputation.
It was also stated that she was now a changed person. She was sensitive and
irritable. She hated the husband and denied him completely all sexual relationship.
The present appeal was against the award by the Sessions Court of $3,000 for
general damages for the loss of her consortium.
The learned President had considered the matter carefully and fairly and given
a proper award of $3,000. There was no reason for disturbing his finding. In making
the award he had not only considered the loss to the plaintiff of her consortium but
the loss to him of her companionship in his social commitment to society which the
state of her mental health had occasioned.

Held:
The general damages awarded to the second respondent should not be

interfered with looking at the injuries sustained and the fact that the husband has to
do most of the household work is not denied;
The appeal on the loss of two weeks' wages and the payment to the nephew
to look after the children should be allowed as they are special damages but not
proved.
Held:
At common law, a husband could recover damages, inter alia, for the loss of
the services provided by his wife. But an amendment to s 7 of the Civil Law Act 1956
('the Act') changed all that. What proviso (iii) to s 7(3) of the Act prohibits is an award
for the loss of consortium or services where that is the sole head of claim. The third
proviso does not prohibit an award for the loss of the services provided by a wife
when such a claim is coupled with another head of claim for either actually engaging
a housekeeper, as was the case in Neo Kim Soon (Administrator of the estate of
Phanna Mannechuang, deceased) v Subramaniam a/l Ramanaidu [1995] 3 MLJ 435
(folld). Neither did it apply here where it was proved that such a housekeeper had to
be engaged but was not because the plaintiff husband could not afford it due to his
impecuniosity.
INTERESTS
S.11 Civil Law Act 1956 (as amended)
Power of Courts to award interest on debts and damages
11. In any proceedings tried in any Court for the recovery of any debt or
damages, the Court may, if it thinks fit, order that there shall be included in the sum
for which judgment is given interest as such rate as it thinks fit on the whole or any
part of the debt or damages for the whole or any part of the period between the date
when the cause of action arose and the date of the judgment:
Provided that nothing in this section—
(a) shall authorize the giving of interest upon interest;(b) shall apply in relation
to any debt upon which interestis payable as of right whether by virtue of
anyagreement or otherwise; or(c) shall affect the damages recoverable for the
dishonourof a bill of exchange.
Murtadza bte Mohamed Hassan v Chong Swee Pian [1980] 1 MLJ 216
Held:
Interest at 3% would be awarded on the special damages from the date of

accident to date of trial and at 6% on the general damages for pain and suffering and
loss of amenities from date of service of the writ. No interest should be allowed for
the damages for loss of future earnings.
DEDUCTIONS
S.28A(1)(a) CLA 1956
(1) In assessing damages recoverable in respect of personal injury which does

not result in death, there shall not be taken into account -
force of this Act;
Ward v Malaysian Airlines System [1991] 3 MLJ 317
In this case, having regard to the nature of the scheme of the insurance
policy, the insurance benefits were not deductible both under s 28A(1)(a) of the Civil
Law Act 1956 and the common law itself. The appeal is allowed to this extent and
judgment should therefore be entered for the appellant on the full assessment sum
of $301,250.
Tai Siat Fah (The Lawful Widow and Dependant of Chang Keng Looy, Decd) &
Ors v The Lawful Personal Representative of Badrul Hisham Hashim [1995] 2 CLJ
649
Counsel for the respondent/defendant raised a preliminary objection and

argued that since the appellants/plaintiffs have received compensation under s. 8(a)
of the Workmen's Compensation Act 1952, they should be barred from making
another claim under the Act. Counsel for the appellants, relying on the case of Ward
v. Malaysian Airlines System Berhad [1991] 1 CLJ 117 argued to the contrary and
further said that the respondent should call the Labour Office to prove that the
compensation had been paid.
The learned Sessions Court Judge found in favour of the respondent on the
preliminary issue and the appellants appealed.
Held:
[1] It is evident from the agreed supplementary bundle that the appellants/
plaintiffs received RM14,400 as compensation under s. 8(a) of the Workmen's
Compensation Act 1952. The authorities show that once a document forms part of an
agreed bundle of documents it stands automatically proved as to its existence, due
execution and contents without having to be proved and no evidence need or had to
be produced to formally put in the document in question. Put simply, agreed
documents are receivable in evidence.
[2] The basic principle in the interpretation of statutes is to apply the words
and phrases of a statute in their ordinary meaning and to construe the phrases and
sentences according to the rules of grammar. Where a statutory provision is couched
in clear and unequivocal terms tantamount to and capable of only one meaning, that
meaning must be adhered to and enforced no matter how harsh the result may be.
[3] Applying Ward's case to the present appeal, the compensation paid to
the appellants/ plaintiffs are not deductible and they are caught under proviso (i)(d)
of s. 7(3) of the Act which clearly lays down that any sum which has been paid under
written law relating to the payment of any compensation shall not be taken into
account in assessing damages.
[4] The plain language of s. 7(3)(i)(d) of the Act would give rise to only one
conclusion and it is that compensation under the Workmen's Compensation Act 1952
will not bar a dependency claim under s. 7 of the Act in respect of loss of support and
damages for bereavement under s. 7(3A) of the Act, nor will such compensation be
said to be deductible. In the circumstances, the learned Sessions Court Judge was
wrong to have allowed the respondent's preliminary objection.
[Appeal allowed with costs. Case remitted to Sessions Court for trial of the
main action].
S.28A(1)(b) Civil Law Act 1956 (as amended)
(b) any pension or gratuity, which has been or will or may be paid as result
of the personal injury; or
S.28A(1)(c) Civil Law Act 1956 (as amended)
personal injury.
INCOME TAX
Lim Eng Kay v Jaafar bin Mohamed Said [1982] 2 MLJ 156
Held:
The finding that the respondent's pre-trial loss of earning amounted to
$65,945.00 was correct in principle but his income tax liability should be taken into
consideration. The sum which could be awarded as a reasonable estimate of the
respondent's loss of income is therefore ($65,945.00 − $9,892.00) = $56,053.00. The
award of the sum in addition to the agreed sum, of $2,300 as special damages was
not wrong in principle because the damages under this heading was in fact pleaded
although it was incorrectly pleaded as general damages.
EX-GRATIA PAYMENTS
Lim Kiat Boon & Ors v Lim Seu Kong [1980] 2 MLJ 39
Held:
(1) the 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 is res inter alios acta and not something from which the
wrongdoer should reap the benefit; where, however, the injured plaintiff receives the
money as of right from the employer, either under statutory or contractual
obligations, the money received is deductible;
(2) the plaintiff should be awarded $13,500 as general damages: $7,500 for
pain and suffering and loss of amenities and $6,000 for loss of earnings on
brokerage; $24,742.32 as special damages on condition that out of $24,742.32, the
sum of $24,331.82 should be paid to HCB Company.
ILLEGAL EARNINGS
Kang Bark Teng & Anor v Lee Kwee Lim [1952] MLJ 27
Held, on the facts both the car and lorry drivers were equally liable for
damages. Having regard to the fact that the deceased was an unlicensed hawker it
was not possible to say what his prospects were and damages were assessed under
section 8 of the Civil Law Ordinance and for loss of expectation of life.
Tai Chooi Thin & Anor v Teo Whee Hong [1953] MLJ 203
The deceased was a member of the crew of a motor-junk and apart from his
wages as such, he derived some income from private trading by importing and
exporting what was alleged to be precious stones in contravention of the Customs
legislation. Defendant's counsel submitted that this part of the deceased's earnings
should not be taken into account.
Held:
Even if there was reliable evidence as to the nature of this business, the profits
made therefrom cannot be excluded in reckoning the deceased's earnings which the
Court fixed at $295 per month. Damages were accordingly awarded under section 8
at $15,000 and for loss of expectation of life under section 7 at $3,000.
Yaakub Foong v Lai Mun Keong & Ors [1986] 2 MLJ 317
On July 26, 1982, the plaintiff, then 51 years old, was on his motor-cycle when
he was run into by the first defendant. He suffered hip injuries. Liability was admitted
and the only dispute was the quantum of the plaintiff's earnings. The plaintiff, a
Malaysian citizen, claimed that he worked in Singapore and admitted that he did not
pay any income tax and even performed additional work in contravention of his work
permit.
Held:
(1) it must be a matter of concern for a Malaysian Court that Malaysian

nationals should be discouraged from abusing the privileges of host countries when
they go abroad. The proximity of Singapore to the Federation must make this
observation doubly significant. Consequently, if there had been cogent evidence as
to the precise amount of tax payable by the plaintiff and of the amount which he had
illegally earned in contravention of his work permit, the Court would have discounted
the damages arithmetically due to the
plaintiff on both counts;
(2) the plaintiff was awarded damages for pain and suffering and loss of
amenities: $25,000; cost of total hip replacement and two-month rehabilitation
period: $10,000; pre-trial to date of judgment loss of earnings: $14,700; future loss of
earnings: $2,100; special damages: $1,560. Interest was awarded at 4% p.a. on the
special damages of $16,260 from date of service of writ to date of judgment, and at
8% p.a. on the general damages of $37,100 from date of service of writ. As from the
date of judgment up to realization, interest will run at 8% p.a. on the global sum.
Chua Kim Suan (Administratrix of the Estate of Teoh Tek Lee, Decd) v Government
of Malaysia [1994] 1 MLJ 394
Held:
Any claim for loss of earnings from an illegal source should not be allowed on
the ground that it is against public policy. Therefore, the decision of the SAR and of
the judge in this case that the claim for that part of the damages as related to the
illegal operation of the taxi should not be allowed, was upheld.
A court should regard a figure from any notice of assessment of income tax as
res inter alios and consider the evidence with an open mind. The income of RM898
per month as found and assessed by the SAR was income not illegally earned and
should be adopted and accepted.
Nazori bin Teh & Anor v Tay Lye Seng & Anor [1998] 3 MLJ 873
Held:
Based on authorities, could be said that whilst public policy would defeat any
claim based on illegality, a balance has to be drawn based on the peculiar facts and
circumstances of each case. The authorities showed that where there is the element
of culpability on the part of the plaintiff who claims for loss of earnings or that the
claim flowed directly from the wrongdoing, the claim would fail. Where he is without
fault, he may recover according to the usual principles of measure of damages.
In the present case, the fact that the respondent had no valid work permit per
se could not affect his claim for loss of earnings. This is so as the respondent was
initially working legally in Singapore. He had a valid work permit issued by the
Singapore authorities which expired four months before the accident. The obligation
to renew the work permit lies with the respondent's employer and since there was no
evidence that they had done so, the respondent had not been culpably responsible
for the predicament that he had found himself to be in. Under these circumstances,
the maxim ex turpi causa non oritur actio lacked moral justification and to that end
was not applicable.
The maxim has a limited application in tort. Its principal role lies mainly and
most exclusively in actions on contract.
Wakil Diri bagi Harta Pusaka atas Rosli Md Nor (simati) & Ors v TP Saffeer & Anor
[1998] 4 CLJ 241
The second respondent housewife in this case had lost her husband ('the
deceased') when the latter died in a road accident at the age of 27. At the material
time the deceased was gainfully employed at a restaurant and was earning some
RM1,250 a month. In the court below liability was denied on the pleadings but was
admitted in the course of the trial. Evidence was also adduced that the deceased
had led a frugal life, and that, out of his said earnings, he had remitted a sum of
RM1,000 to the second respondent and their son in India for their upkeep. The
learned trial judge, however, was not prepared to accept the second respondent's
assertion as to her loss of dependency aforesaid, and so reduced her loss of
earnings by taking the figure of RM700 per month. Upon a multiplier of 16, the sum
of RM134,000 for loss of earnings was awarded to the second respondent. The
appellants appealed and contended inter alia that the learned trial judge was wrong
in making the award as the deceased's earnings were based on fabricated salary
vouchers, and that his earnings, in any case, were illegal. It was not disputed that
this point, which was raised before the instant court, was never taken before the trial
court. It was also not disputed that the deceased was an Indian national, had no
work permit and did not contribute either to the EPF or SOCSO.
Held:
[1] A question of fact, not taken at the trial court, may not be presented for the
first time in an appellate court. In any case, the trial court herein had concluded that
the vouchers which were alleged to be fabricated were in fact not a sham. Thus,
there was no ground for this court to interfere with that specific finding of fact.
[2] The earnings of the deceased could in law be legitimised and that being so
the earnings derived were not illegal. Those earnings could be computed for
purposes of loss of earnings sustained.
[3] The earnings of the deceased were strictly proved and the respondents
must succeed on that score.
[4] There should not be any deduction for the living expenses of the deceased
as the same were not admitted or proved. This court was however unable to
disagree with the trial court's assessment of the loss of earnings. The quantum as
arrived at by the trial court was sufficient to fairly compensate the widow and her
retarded son for the rest of their lives in India.
CONTRIBUTORY NEGLIGENCE
Loh Chee Keong v Sykta Bee Huat Bhd [1982] 2 MLJ 184
Held:
Mohd Zukhairi Abd Ghapar & Anor v Quek Chiam Kee [2004] 5 MLJ 6
Held:
The test of contributory negligence is based entirely on the conduct of the

plaintiff in that particular accident or case and is the same as in the case of a child as
of an adult, modified only to the extent that the degree of care to be expected must
be proportionate to the age of the child. Where the issue is purely a question of
deciding what is the right apportionment, if any, of blame on two persons when they
are suddenly involved in a traffic emergency, it would not be possible for the
appellate court to intervene and substitute a fresh finding instead of that which was
found by the learned trial judge. On the facts and the law, the High Court judge was
of the view that the conclusion arrived at by the trial court on the evidence adduced
before it pertaining to the apportionment of liability was fair, reasonable, justified and
correct.
Mohamad Safuan bin Wasidin & Anor v Mohd Ridhuan bin Ahmad (an infant)
[1994] 2 MLJ 187
The respondent, a four-year-old boy ('the child'), was knocked down by a

motor cycle ridden by the first appellant, a postman. He sustained injuries and sued
by his father and next friend, Ahmad bin Yusof. The first appellant admitted that he
did not see the child at all and while giving evidence, deviated from his pleaded
defence. Counsel for the appellants contended that the child, though an infant,
should be held partially liable. The sessions court judge brushed aside the question
of contributory negligence on the part of the child and found the appellants solely
liable. The appellants appealed.
(1) The degree of care attached to a child should be different from that of an
adult. That degree of care must be proportionate to the age of the child. The younger
the child is, the lesser the degree of care attributable to the child. This must,
however, be dependent on the facts of each case
Wong Li Fatt William (an infant) v Haidawati bte Bolden & Anor [1984] 2 MLJ 497
Held:
No contributory negligence or blame was attributable to the infant plaintiff. As

he had been only two years and eleven months old at the time, no duty to take care
of his own safety was imposed upon him. The defendants had also not proved that
the infant plaintiff had shown a culpable want of care for his own safety.
DUTY TO MITIGATE LOSS
Yoong Leok Kee Corp Sdn Bhd v Chin Thong Thai [1985] 2 MLJ 21
The respondent was awarded damages for injuries sustained by him in the
course of loading logs on to a conveyor belt upon a finding of negligence on the part
of the employers. A sum of $42,000 was awarded for future loss of earning. The
appellant appealed on two grounds alleging that the learned trial judge erred (a) in
allowing an amendment to be made to the statement of claim after the respondent
had closed his case and after the appellant had closed his case and made the
submission and (b) in his award of future loss of earnings to the respondent against
the weight of the medical reports and in particular the learned judge's failure to
consider the duty placed upon the respondent to mitigate the damage. It appeared
on the facts that the respondent left the hospital against medical advice.
Held:
(1) the learned judge had properly exercised his discretion under Order 20 rule
5 of the Rules of the High Court, 1980 when he allowed the amendment to the
statement of claim in the interest of justice;
(3) in the circumstances the award for loss of future earnings should be
reduced to $21,000.
GOVERNMENT OR PRIVATE HOSPITAL?

Yaakub Foong v Lai Mun Keong & Ors [1986] 2 MLJ 317
“Defence counsel is insistent that the plaintiff should get himself treated in the
Government Hospital in Johore Bahru because it is cheaper by half. As to this, it is
my view that a claimant is entitled to have himself treated in a private hospital if in all
the circumstances that is not an unreasonable thing for him to do.”
“The judge's figure is necessarily out of date. The history of Dr. Lim's care is as
follows. On February 2, 1974, she was flown to her mother's home in Penang,
Malaysia, where she still was at the date of trial. A major issue at trial was whether
she would remain in Malaysia or return to England, where her married sister and
family live. The judge made his award upon the basis that Dr. Lim's mother, who was
71 at the date of the trial, could be expected to care for her in Malaysia for about
seven years, after which time Dr. Lim would come to England to be cared for in an
institution within range of her sister. When the case reached the Court of Appeal in
June 1978, it was already known to the family that the mother's health had
deteriorated to the extent that she could not expect to be able to look after her
daughter for very long. In fact, as the House now knows, Dr. Lim came to England on
September 4, 1978 (two months after judgment in the Court of Appeal).
Accommodation has now been found for her in a private nursing home not far from
where her sister lives.
The position, therefore, is that damages have to be awarded in respect of: (a)
cost of care in Malaysia from February 2, 1974, to September 4, 1978, a period of 55
months; (b) travelling expenses, Penang to London: and (c) cost of care in England
from September 4, 1978, to date of judgment in this House. The judge assessed the
cost of care in Malaysia at £200 per month. He, specifically and correctly. excluded
"the domestic element" from his calculation. Mr. French was, however, able to
demonstrate - and I did not understand Mr. Davies to challenge the accuracy of his
figures - that the judge erred in his calculation of $850 a month for this period, and
that the true monthly figure should have been $1,286, which at the prevailing rate of
exchange is about £300 per month. The sum, therefore, for care in Malaysia is
£16,500 (55 X £300) with interest at 4½ per cent. per annum from date of accident
(March 1, 1973).
The travelling expenses are not in dispute. The sum is £1,923. Interest should
run at 10 per cent. from September 4, 1978.
For reasons which I shall develop when dealing with cost of future care, which
we now know will be in England, the cost of care from Dr. Lim's arrival here until date
of judgment in this House is to be calculated at the rate of £6,400 per annum
(£533.33 per month). Interest will run at 4½ per cent. per annum from date of
accident, March 1, 1973.
Cost of care to date of judgment in this House is, therefore: (a) £16,500, (b)
£1,923, (c) to be calculated from September 4, 1978, to date of judgment in this
House at the rate of £6,400 per annum, to each of which sums must be added
interest at the appropriate rate for the appropriate period.”
Held:
The awards in respect of plastic surgery and psychiatric therapy should be

disallowed as the treatment is available in any government hospital and they should
be regarded as absorbed in the award for general damages.
Chong Chee Khong & Anor v Ng Yeow Hin [1997] 5 MLJ 786
Held:
Chai Yee Chong v Lew Thai [2004] 2 MLJ 465
If the treatment was sought at a government hospital, the full amount

expended and paid by the person should be awarded. However, if the plaintiff had
sought treatment at a private hospital, he had to first prove that he was justified in
seeking treatment at the private hospital.
In this regard, he must prove that: (a) the particular treatment was not
available at the government hospital either due to the unavailability of the necessary
equipment, qualified doctors or other sufficient reasons; or (b) although the treatment
was available at a general hospital, it was not available within a reasonable period
considering the urgency of the treatment; or (c) the treatment at the government
hospital, though available, was grossly inadequate. If the court was not satisfied that
the plaintiff was justified in seeking treatment at a private hospital, then, depending
on the facts and the circumstances of each case, the court should either dismiss the
claim altogether or award an amount not exceeding one-third of the expenses.
This one-third amount was not fixed by any written law but was arrived at as a
matter of practice. If it was shown that even one-third was excessive, considering the
expenses that otherwise would have been incurred in a government hospital, an
amount less than one-third may be awarded.
Secondly, the plaintiff had to prove that the amount incurred was reasonable
taking into consideration normal charges at other local private hospitals. The court
may award what it considered to be a reasonable amount which may even be the full
amount claimed.
In the instant case, there was ample evidence to show that the plaintiff was
justified in obtaining medical treatment at the private hospital. During his stay at the
Ipoh General Hospital, no operation was done to his leg. Instead, he was discharged
to follow up weekly at the clinic only for wound inspection. In the circumstances, had
liability been found in the plaintiff's favour, he would have been awarded the full
amount of RM15,028 for medical expenses (see paras 66–68).
Held:
The reason supplied by the learned sessions court judge in reducing the
medical expenses bill by one-third from the original sum of RM742.25 to RM250 was
that the first plaintiff could have continued with his treatment at the government
hospital instead of a private hospital.
The view of the learned session court judge, unless qualified, would mean that
a government servant was not worthy of treatment at a private hospital and that it
was incumbent for a government servant to be admitted into a government hospital.
Whether a successful litigant had obtained medical attention from a private hospital
or not, the bottom line was that his attempts to recover those expenses was not an
exercise to enrich himself, but was merely an attempt to recover the exact sum of
out-of-pocket expenses as per the bill tendered in court. He would not get one sen
more than what he has spent. The necessity of having to be admitted in a private
hospital, be it by choice or circumstances, was purely a question of self-preservation
at that crucial moment.
On that construction, the emphasis that the first plaintiff must not seek medical
assistance from a private hospital, but seek recourse from a government hospital
primarily to suppress expenses should be abhorred. Putting things in perspective,
not only did the defendant take away the life, health and happiness of the first
plaintiff, but now the learned sessions court judge had taken away his right of choice
of selection of hospital
In the instant case, the first plaintiff said that his initial treatment was at the
General Hospital of Klang ('Klang GH'), which was an act of mitigation by itself.
There, a metal plate was inserted onto his leg. The first plaintiff was informed that he
had to wait three to four years to remove the metal plate at the Klang GH. The first
plaintiff was advised by a doctor at the Klang GH to have the metal plate removed at
a private hospital and it was pursuant to that advice that the first plaintiff went to the
private hospital. It was quite obvious that the first plaintiff had done everything to
mitigate the expenses, and only proceeded to the private hospital after acceding to
the advice of the government doctor. His actions therefore were justifiable and
reasonable. As such, there was no reason why the learned sessions court judge
should have rejected the actual claim of RM742.75. Even the formula of the one-third
deduction was without any foundation. On that score, the order of the lower court
was accordingly varied and the claim for special damages for the full sum of
RM742.75 was allowed.
TRADITIONAL MEDICINE
Seah Yit Chen v Singapore Bus Service (1978) Ltd & Ors [1990] 3 MLJ 144
Held:
As to the claim for the cost of treatment by a Chinese physician, the test must
be whether it was reasonable for the plaintiff to seek such traditional medicine and
incur the expenses, and the answer as to whether it was reasonable must depend on
the facts of each case. There should be some evidence before the court that the
traditional treatment was undergone on reliable advice, with a reasonable
expectation of benefit, and not just on the impulse of the plaintiff. In this case, a
proper claim under this head had not been proved as the plaintiff had already started
with conventional physiotherapy and there was no evidence that she had received
any reliable advice before she changed her mind and went to a Chinese physician
on her own. There was also no evidence that she benefited in any way from this
alternative treatment which she was readily persuaded to stop.
MARRIED WOMAN
S.4A Married Women Act 1957
4A Capacity of husband and wife to sue each other for personal injuries
A husband or a wife shall be entitled to sue each other in tort for damages in
respect of injuries to his or her person, as the case may be, in the like manner as
any other two separate individuals.
S.9(2) Married Women Act 1957
9 Remedies of married women for protection and security of separate

property
(1) Every married woman shall have in her own name against her husband,
the same remedies and redress for the protection and security of her property as if
such property belonged to her as a feme sole.
(2) A husband or a wife shall be entitled to sue each other in tort for the
protection or security of his or her property, as the case may be.
S.2(1) Married Women Act 1957
2 Interpretation
(1) In this Act-
"married woman" includes any woman married in accordance with the rites
and ceremonies required by her religion, manners or customs;
Adnan Mat Jidin & Anor v Irwan Wee Abdullah & Anor [1997] 2 MLJ 775
The plaintiffs sought to make the second defendant vicariously liable for the
first defendant's negligence. The defendants, in answer to the second plaintiff's
action, pleaded s 9(2) of the Married Women Act 1957 which, prior to its amendment
in 1994, states that 'except for the protection or security of his or her property, no
husband or wife shall be entitled to sue the other for a tort'. The judge held the
subsection to be an absolute bar to the second plaintiff's claim against her husband,
the first defendant. The judge also held both the first plaintiff and the first defendant
equally to blame for the collision. The plaintiffs appealed.
Further, the judge held that the second defendant was vicariously liable for the
first defendant's negligence. The defendants appealed arguing that the formula
applied by the judge was not in accordance with the relevant provisions of the Civil
Law Act 1956 and asked that the award for loss of future earnings be reduced. The
defendants suggested a multiplier of 111 3 and a multiplicand of RM400. It was also
argued that the evidence demonstrated that the facts of the present case did not
admit the operation of the vicarious liability doctrine.
Held, allowing the first appeal and dismissing the second appeal:
(1) The language of s 9(2) of the Act ought to receive an interpretation which is
plain on its face. It was beyond argument that the second plaintiff's claim in her
action was based on the tort of negligence. The learned judge was therefore entirely
right in dismissing her claim against her husband as well as against the second
defendant.
Union Insurance (M) Sdn Bhd v Chan You Young [1999] 1 MLJ 593
Held, dismissing the appeal with costs:
(1) The respondent was entitled to recover from the insurance company as
she was travelling in the car belonging to her husband, who was the insured, and
driven by her son, who was the authorized driver, under the relevant policy by reason
of or in pursuance of a contract of employment not with the insured.
(2) The respondent had sued the husband not in tort but only as regards the
vicarious liability for the action in tort against her son (see p 612B–C). The first suit
was one of vicarious liability to protect the wife's 'property' which was defined under s
2(1) of the MWA to include a thing in action (see p 601C–D). The first suit was
against the son for the tort of negligence and the husband was roped in only to
establish the vicarious liability aspect. As the husband was not the tortfeasor, the
MWA was not applicable.
OVERSEAS OPERATION
Dharam Singh Dhillon v Ibrahim bin Shaaban & Anor [1995] 4 CLJ 207
Held:
The trip to the United States for the operation was not necessary as such
operations were available locally. The Court disallows the plaintiff's claim for this item
but allows a claim of RM6,000 as cost for a local operation. The Court further allows
special damages of RM1,993 as admitted by the defendants. The remaining items
are disallowed for lack of proof.
Chong Kam Siong v Herman bin Baharuddin [1995] 2 CLJ 413
The issue was whether the plaintiff was entitled to medical treatment in a
private hospital and if in the affirmative, whether he was entitled to treatment in a
Singapore hospital.
Held:
(a) brachial plexus - RM25,000
(b) fracture of the ulna and radius - RM15,000
(c) fracture of the metacarpal and phalanges - RM10,000
The Court also awarded RM30,000 for fracture of the left acetabular with
central dislocation of the hip joint and as agreed by the parties, RM12,000 for
fracture of the right femur bringing the total to RM92,000 and an agreed sum of
RM27,030 for loss of future earnings.
[2] The yardstick to determine whether a claimant was entitled to medical

expenses expended by him in a private hospital of his choice rather than seeking
treatment from a government hospital where it is practically free, is not on whether
the government hospital at that material time could or could not provide adequate
care and attention to him. It is most unfair for this Court to determine which hospital
is more efficient. In the Court's opinion any ordinary citizen of this country has a right
to choose medical treatment for his injuries and illness from whoever and from
wherever. The only limitations to this freedom are economic and availability factors.
Accordingly, the plaintiff in this case is entitled to seek medical treatment other than
in a government hospital.
[3] Because of the proximity and the linkage to Singapore, any person who
suffers injuries as a result of a road accident in the State of Johor is not
unreasonable in seeking medical treatment in Singapore. The hospitals in Singapore
should be treated like any other private hospital in Malaysia and therefore if the
patient has a choice to go to any other private hospital in Malaysia, similarly he
should be entitled to seek treatment at a hospital in Singapore. Based on the
aforesaid the plaintiff's claim for medical expenses amounting to RM43,037 is
allowed.
[Defendant 100% liable. Plaintiff granted general damages of RM119,030 and

special damages of RM59,608 with costs].
-------------------------------------------------------------
4. FATAL ACCIDENT CLAIM
-------------------------------------------------------------
INTRODUCTION
S.7(1) Civil Law Act 1956 (as amended)
7 Compensation to the family of a person for loss occasioned by his death
(1) Whenever the death of a person is caused by wrongful act, neglect or

default, and the act, neglect or default is such as would, if death had not ensued,
have entitled the party injured to maintain an action and recover damages in respect
thereof, the party who would have been liable if death had not ensued shall be liable
to an action for damages, notwithstanding the death of the person injured, and
although the death has been caused under such circumstances as amount in law to
an offence under the Penal Code [Act 574].
8 Effect of death on certain causes of action
(1) Subject to this section, on death of any person all causes of action
subsisting against or vested in him shall survive against, or, as the case may be, for
the benefit of, his estate:
Provided that this subsection shall not apply to causes of action for defamation
or seduction or for inducing one spouse to leave or remain apart from the other or to
any claim for damages on the ground of adultery.
Loh Khoo Chin and Loo An Mooi & Anor v Tan Cheng Hang & Ors [1997] 1 CLJ 109
Held:
[1] By virtue of s. 8 of the Civil Law Act 1956, the estate of a deceased can
claim for lost future earnings in the lost working years.
[2] The plaintiffs, apart from having succeeded in establishing a prima facie
case of negligence on the part of the motorcyclist, have also succeeded in
establishing a prima facie case of negligence against the lorry driver. Further, the
Court finds that the defendants failed to negate any negligence on their part.
Therefore, on the facts, the Court finds that the lorry driver and the motorcyclist were
joint tortfeasors guilty of the tort of negligence and 100% liable towards the first and
second deceased.
[5] The claim against the deceased motorcyclist is barred by s. 8(3)(b) of the
Act which provides that proceedings against the estate of a deceased person must
be instituted not later than six months after his personal representative took out
representation. In this case there was a time lapse of more than six months and
thus, despite the finding of guilt against the deceased motorcyclist, the plaintiffs'
claims against his estate is dismissed.
Per curiam:
[1] After 1 October 1984, an estate cannot claim for lost future earnings in the
lost working years. This follows from the amendment made to s. 8 of the Act by s. 3
of the Civil Law (Amendment) Act 1984.
[2] With regards the question as to whether the child is entitled to the
dependency claim in addition to the estate claim, our Courts have always relied on
the decision in Davies v. Powell Duffryn Asso- ciated Collieries Ltd. [1942] AC 601
where it was held that dependants must reduce their award by whatever amount
they receive as beneficiaries of the estate. Be that as it may, with the coming into
force in 1975 of the Civil Law (Amendment) Act 1975 (Act A308), and by applying a
literal construction to s. 7(3)(i)(d) therein, any assessment of damages for the
dependants should not take into account any sum received from the estate.
[Estate claim against first and second defendants allowed; Dependency claim
disallowed; All claims against third defendant disallowed]
Davies v Powell Duffryn Associated Collieries Ltd [1942] AC 601
It was held that dependants must reduce their award by whatever amount they
receive as beneficiaries of the estate.
DEPENDENCY CLAIM
WHO ARE DEPENDANTS?
(2) Every such action shall be for the benefit of the wife, husband, parent,
and child, if any, of the person whose death has been so caused and shall be
brought by and in the name of the executor of the person deceased.
(11) In this section unless the context otherwise requires -
"child" includes son, daughter, grandson, granddaughter, stepson and

stepdaughter;
"parent" includes father, mother, grandfather and grandmother;
"pension" includes a return of contributions and any payment of a lump sum

in respect of a person's employment:
Provided that in deducing any relationship referred to in this subsection any

illegitimate person or any person who has been adopted, or whose adoption has
been registered, in accordance with any written law shall be treated as being or as
having been the legitimate offspring of his mother and reputed father or, as the case
may be, of his adopters.
Muhammad bin Hashim (Bapa Noor Azlan bin Muhammad (Simati) Bertindak bagi
Pihak Tanggunggan) v Teow Teik Chai & Anor [1996] 4 MLJ 7
(1) To succeed in his claim for loss of support, the appellant had to prove
the financial loss sustained by him as a dependant under s 7(2) of the Act.
(2) The appellant must be the direct beneficiary of the financial support and
the test is the direct, and not vicarious, benefit to the appellant. However, the
appellant need not prove that he was dependent on the financial support. The proof
of indigent circumstances, and therefore a greater likelihood of dependence on the
deceased, will nevertheless give much truth to a claim for the support that was lost.
(3) Therefore, the finding by the trial judge that the 'loss of support' was not
proved because the appellant was not dependent on the deceased could not be
supported. The RM700 given by the deceased to the appellant was for family
expenses and the appellant as a member of that family must have derived some
direct benefit. Considering that the deceased was 21 years old and single, and was
drawing a salary of at least RM565 per month, the trial court's provisional
assessment of RM250 per month on a multiplier of eight years as the loss of support
suffered by the appellant was reasonable.
The multiplier of 16 years in s 7(3)(iv)(d) of the Act is neither strict nor rigid.
The court can take into account contingencies such as the future marriage of an
unmarried child.
In the context of s 7, 'support' means the pecuniary provision which

furnishes a livelihood, a source of means of living, subsistence, sustenance,
maintenance or living, and the 'loss of support' means the pecuniary benefit lost, a
consequence of the death of the provider.
This was said plainly by Peh Swee Chin SCJ in Chan Chin Ming at p 240
thus:
loss of support is for all practical purposes translated into financial loss
sustained by a dependant …
after his Lordship at p 240 had explained that '… the introduction of the
words "loss of support" has not added anything new to the state of the law, but only
incorporated what the courts had always decided before such addition that such
damages were in fact loss of support'.
Zulkifli Ayob v Vesalini K Madhavan & Anor [200] 1 MLJ 593
(1) Under s 7 of the Act, only legally adopted children qualified as

dependants. As no evidence was led that the adopted child of the family was a
legally adopted child of the deceased, the sum of RM200 per month spent on the
child ought to be deducted from the amount expended by the deceased towards her
maintenance was to be deducted together with RM100 being the expenses of the
deceased in the household during his lifetime.
Payne-Collins v Taylor Woodrow [1975] QB 300
The deceased’s divorced wife attempted to pursue a dependency claim

upon his death. The court held that a divorced wife is not entitled to do so under the
Fatal Accidents Act 1846.
K v JMP Co Ltd [1975] 1 All ER 1030
The deceased had cohabited with a woman and they had three children.
Since the deceased and the woman were never married, the children were
considered illegitimate.
In a dependency action by the woman and her children arising out of the
deceased’s death, the court held that the woman was not entitled to pursue a
dependency claim since she was not married to the deceased. However, the three
children, though illegitimate, were held to be entitled to pursue the dependency
claim.
Chan Chin Ming & Anor v Lim Yok Eng [1994]
The plaintiff claimed for loss of support as a result of a fatal accident in

which her unmarried 25-year-old son was involved. The High Court judge awarded
her RM144,000 on the basis of the datum figure or basis figure of RM750 per month,
not involving a claim for 'lost years'. The said sum was found by the trial judge to be
the average monthly sum of money the deceased had given to the plaintiff prior to
his death. The defendants appealed.
The issues before the court were:

(1) whether the sum of RM750 should be reduced by about half because
the plaintiff spent only half of this sum on herself and the other half was spent on
three other school-going children of hers; and
(2) whether in a claim by a parent for loss of support in respect of an

unmarried son, the statutorily-fixed number of years' purchase as set out in s 7(3)(iv)
(d) of the Civil Law Act 1956 ('the Act') was applicable.

multiplicand.
remoteness.
METHOD OF ASSESSMENT
Pre 1984
Post 1984 - S.7(3) Civil Law Act 1956 (as amended)
(1) Whenever the death of a person is caused by wrongful act, neglect or

default, and the act, neglect or default is such as would, if death had not ensued,
have entitled the party injured to maintain an action and recover damages in respect
thereof, the party who would have been liable if death had not ensued shall be liable
to an action for damages, notwithstanding the death of the person injured, and
although the death has been caused under such circumstances as amount in law to
an offence under the Penal Code"
(3) The damages which the party who shall be liable under subsection (1) to
pay to the party for whom and for whose benefit the action is brought shall, subject to
this section, be such as will compensate the party for whom and for whose benefit
the action is brought for any loss of support suffered together with any reasonable
expenses incurred as a result of the wrongful act, neglect or default of the party
liable under subsection (1):
Provided that -
(i) in assessing the damages there shall not be taken into account -
(a) any sum paid or payable on the death of the person deceased under any
force of this Act;
(b) any sum payable, as a result of the death, under any written law relating
to employees' provident fund;
(c) any pension or gratuity, which has been or will or may be paid as a result
of the death; or
(d) 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;
(ii) damages may be awarded in respect of the funeral expenses of the

person deceased if such expenses have been incurred by the party for whose
benefit the action is brought;
(iii) no damages shall be awarded to a parent on the ground only of his

having been deprived of the services of a child; and no damages shall be awarded to
a husband on the ground only of his having been deprived of the services or society
of his wife; and
(iv) 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 -
(a) take into account that where the person deceased has attained the age
of fifty five years at the time of his death, his loss of earnings for any period after his
death shall not be taken into consideration; and in the case of any other person
deceased, his loss of earnings for any period after his death shall be taken into
consideration if it is proved or admitted that the person deceased was in good health
but for the injury that caused his death and was receiving earnings by his own labour
or other gainful activity prior to his death;
(b) take into account only the amount relating to the earnings as aforesaid
and the Court shall not take into account any prospect of the earnings as aforesaid
being increased at any period after the person's death;
(c) take into account any diminution of any such amount as aforesaid by
such sum as is proved or admitted to be the living expenses of the person deceased
at the time of his death;
(d) take into account that 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 fifty four years at the time of his death, the number of
years' purchase shall be calculated by using the figure 55, minus the age of the
person at the time of death and dividing the remainder by the figure 2.
Chan Chin Ming & Anor v Lim Yoke Eng (Lawful Mother of Gan Swee Hock, Decd)
[1994] 3 MLJ 233



multiplicand.
remoteness.
Takong Tabari v Govt of Sarawak & Ors & Another Appeal [1998] 4 MLJ 512
Held:
The common law practice of making deductions for contingencies, other

vicissitudes of life and accelerated payment continues to be in force as Parliament
had not expressed its intention to depart from the general system of law. Under such
circumstances, the trial judge made no error of law when he made the ⅓ deduction
Rohani Said v Noraini Omar & Anor [2002] 2 MLJ 725

Based on the doctrine of stare decisis, the court was bound by the decision
of the Court of Appeal in Takong Tabari and the Supreme Court case of Chan Ching
Ming that the common law practice of making deductions for contingencies, other
vicissitudes of life and accelerated payment was not ousted by Parliament's
introduction of proviso (d) to s 7(3)(iv) on 1 October 1984.
Therefore, the learned sessions court judge was in error in failing to make
the said deduction from the respondent's damages for loss of support which was
calculated at RM52,800. From that amount, there shall be a deduction of RM17,600
leaving a balance of RM35,200 as damages for loss of support.
Sivakumaran a/l Selvaraj & 2 Ors (Suing Through Their Mother and Next Friend,
Selvi a/p Muthusamy) & Anor v Yu Pan & Anor [1995] 1 MLJ 12
Accident die due to other causes
Held, dismissing the claim:
(1) The rule in The Wagon Moundthat a defendant is liable if the damage to
the plaintiff was of such a kind as a reasonable man would have foreseen, does not
abrogate the rule that a tortfeasor takes his victim as he finds him. Therefore,
provided that the need for treatment for an injury is foreseeable, the question of
foreseeability of the type of consequences does not arise.
(2) In this case, the deceased's suicide was not a normal reaction to his
injuries and was not foreseeable, as evidenced by the fourth plaintiff's statement that
she did not expect him to commit suicide. There was no evidence whatsoever that
the deceased had suffered from a psychological predisposition towards depression
and in fact, the evidence was that he was a perfectly healthy man before the
accident.
PECUNIARY LOSS
ACTUAL LOSS OF DEPENDENCY
Yap Ami v Tan Hui Pang [1982] 2 MLJ 316
Dependants have to show that they have suffered pecuniary loss due to
the deceased’s death - despite death, family still continue to receive income
In this case the deceased died in a wild boar hunting accident. Hie widow
and another as representatives of his estate sued for damages on behalf of the
deceased's dependants under section 7 and on behalf of his estate under section 8
of the Civil Law Act, 1956. Liability to the extent of 70% was admitted and the only
question for the learned trial judge was damages. He awarded $2,800 for loss of
expectation of life, $959 special damages and costs. He made no award for loss of
dependency because on the agreed facts the deceased before his death was an
active partner in a firm and as such partner was drawing $1450 per month and after
this death that very sum was paid to the dependants as the deceased's share of the
profits. He held therefore that the dependants suffered no loss. The appellants
appealed.
Held: the plaintiffs were entitled to damages for loss of future earnings
but in this case as the estate and the dependants had lost nothing, the learned trial
judge was correct in making no award for loss of dependency.
Chan Chin Ming v Lim Yok Eng [1994] 3 MLJ 233
Dependant must prove that he has suffered loss of support in personal

capacity
Held:
Under s 7 of the Act, the persons entitled to claim loss of support in

MONEY + SERVICES
Mehmet v Perry [1977] 2 All ER 529
Held –
(i) In view of the medical evidence, the plaintiff had acted reasonably, on
the wife's death, in giving up full-time employment to care for the family and
furthermore it was reasonable that he should not take up full-time employment until S
had attained the age of 15. In those circumstances, the damages for loss of the
wife's housekeeping services should be assessed by reference to the plaintiff's loss
of wages, and not by reference to the reasonable cost of employing a housekeeper,
since his loss of wages represented the cost of providing the services of a full-time
housekeeper in substitution for the wife(
(ii) The children were entitled to recover as part of their damages for loss
of the wife's services, a sum for the loss of her personal attention to them as a
mother, as distinct from her services to them as a housekeeper, but that sum should
be kept within modest limits as the plaintiff was at home all the time.
(iv) The sum received by the plaintiff as supplementary benefit, although

not required by s 2 of the Fatal Accidents Act 1959 to be excluded in the assessment
of the damages, should nevertheless be deducted from the damages awarded to the
plaintiff because the damages were to be calculated by reference to the plaintiff's
loss of wages and he had received the supplementary benefit because he had given
up work and lost his wages; the benefit could not, therefore, be regarded as a
collateral payment not flowing from the wife's death.
Chong Pik Sing v Ng Mun Bee [1985] 1 MLJ 433
In this case the first respondent had claimed damages for loss of
consortium of his wife who was killed in a motor accident caused by the negligence
of the appellant. The learned trial judge awarded the sum of $3000.00 under this
head. The first respondent and the other respondents, the children, also claimed
damages for loss of services suffered by them. The appellant appealed against the
award for loss of consortium and also the amount of the award for loss of services.
Held:
(1) the learned judge was wrong to make an award for damages for loss
of consortium to the husband. Such an award would appear to be contrary to the
authorities and the law;
(2) it has been held that the loss need not be a monetary loss: a loss of
services rendered by the wife and capable of being valued in pecuniary terms will
suffice such as housekeeping. The learned judge was therefore right to make an
award of damages for loss of services;
(3) the amount claimed in the statement of claim was $500 per month
and the learned judge erred in allowing a pecuniary loss, that is $800 per month,
very much in excess of the sum claimed;
(4) the multiplier of three years in assessing post-trial loss adopted by the
learned judge was reasonable;
(5) on the other hand the multiplier adopted by the learned Judge for the
children was too high and a multiplier of 8 should be adopted for the purpose of
calculating the post-trial loss of the three children;
(6) the amount of damages awarded for the husband and the children
should therefore be modified accordingly.
Hay v Hughes [1975] 1 All ER 257
The parents of two boys were killed in a motor accident on January 10,
1970. The maternal grandmother took the two children, then aged 4½and 2½, into
her home and cared for them as an unpaid mother-substitute and she intended to
continue to care for them whether she was paid or not. The plaintiff administrators
brought an action on behalf of the parents' estates and their sons' dependency under
the Fatal Accidents Acts 1846 to 1959 and the Law Reform (Miscellaneous
Provisions) Act 1934 against the defendant, who admitted liability for the accident.
Held , dismissing the appeal and the cross-notice:
The children were entitled to damages, under section 2 of the Fatal

Accidents Act 1846, for the pecuniary loss of their mother's services but the
grandmother's voluntary service in looking after them as a substitute for their mother
was not a service resulting from the mother's death within the meaning of the section
and, accordingly, that service was not to be taken into account in assessing the
pecuniary loss to the children of their mother's services.
Regan v Williamson [1976] 2 All ER 241
The plaintiff, the father of four children, was sitting in a stationary motor
car with his wife when the defendant, driving another car, veered off the road and
collided into the plaintiff's car. The plaintiff suffered injuries and his wife was killed. In
a claim under the Fatal Accidents Acts 1846 to 1959, the plaintiff sought damages,
inter alia, for the cost of employing a housekeeper to look after the children.
On the question of the damages to be recovered for the loss of the wife's
services: —
Held , that in determining the pecuniary value to be put on the services

rendered by the deceased for the purposes of the Fatal Accidents Acts,
acknowledgment should be given to the constant attendance of a mother on her
children; that the value placed upon such services should not be limited to a mere
computation of the cost of the services of a housekeeper minus an estimate of the
cost of maintaining the deceased wife.
K v JMP Co Ltd [1975] 1 All ER 1030
Held:
The court has to look for the dependent’ net loss and compensate them
for this loss. For this purpose the court will have to balance the gain in money or
money’s worth resulting to the deceased’s death against the gross loss which they
have suffered from the death.
S.7(3) proviso (iii) Civil Law Act 1956 (as amended)
COMPUTATION OF LOSS
Rebecca Mathews v Sykt Kerjasama Serbaguna Gema Wong Siong Bhd [1990]
1 MLJ 443
The issue before the court was the calculation of the quantum on
damages by reference to the loss suffered by the first and the third plaintiffs as a
result of the death of the deceased.
Held:
Low Suit (MW) & Tan Mee Kiau v Lim Sun Hiang & Anor [1992] 2 CLJ 1035
Held:
The Court agreed with Rebecca Mathew & Ors. v. Syarikat Kerjasama
Serbaguna Gema Wong Siong Bhd. & Anor. [1989] 1 LNS 136. [1990] 1 MLJ 443
that "the approach of deducting a percentage leaving the remainder as surplus
income for the defendants is a modern trend for both estate and dependency
claims".
PROSPECTIVE INCREASE
Parvathy v Liew Yoke Khoon [1984] 1 MLJ 183
Held:
Loss of dependency was awarded when the deceased would have been
promoted to Superscale E from Superscale F with segmental increase in salary.
S.7(3) proviso (iv)(b) Civil Law Act 1956 (as amended)
(iv) 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 -
(b) take into account only the amount relating to the earnings as
aforesaid and the Court shall not take into account any prospect of the earnings as
aforesaid being increased at any period after the person's death;
LOSS OF CONSORTIUM
Chong Pik Sing v Ng Mun Bee [1985] 1 MLJ 433
Held:
(1) the learned judge was wrong to make an award for damages for loss
of consortium to the husband. Such an award would appear to be contrary to the
authorities and the law;
Neo Kim Soon v Subramaniam [1995] 3 MLJ 435
On 1 May 1986, the plaintiff's wife was killed in a motor accident, leaving
behind their infant son. The accident was caused solely by the negligence of the first
defendant. The plaintiff filed a suit in the sessions court. In the statement of claim, it
was specifically pleaded that the action was brought in his capacity as the
administrator of the deceased's estate under s 7 of the Civil Law Act 1956, on his
own behalf as the deceased's lawful husband and on behalf of his son. At the trial,
the plaintiff gave evidence that by reason of the death of the deceased, he had to
and would have to continue to employ a housekeeper to look after his son at a
monthly wage of RM500. The sessions court judge found that a monthly expenditure
of RM250 was reasonable for a period of 111/2 years.
However, the defendants appealed to the High Court on the grounds that:
(i) no award could be made by reason of the deprivation of the services or society of
a wife under the amended s 7(3) of the Act, unless the claimant could show actual
dependency in the sense of receiving a financial contribution from the deceased; and
(ii) the plaintiff and the son had to sue independently in their personal capacity for
the housekeeper's wages as it was a claim for personal loss and not a claim for loss
of support.
(1) (Per Mahadev Shankar JCA) What has been done away by the
amended s 7(3) is an award of damages to a husband on the ground only that he
has been deprived of the services or society of his wife. However, where a husband
has not only lost his wife, but has also been put to monetary loss as a direct result of
the negligence, such loss is recoverable even if the wife did not make any direct
financial contribution to the husband. This is because s 7(3) provides that the
negligent party should compensate the claimant not only for any loss of support, but
also any reasonable expenses incurred as a result of the wrongful act.
Held, partially allowing the appeal:
(1) At common law, a husband could recover damages, inter alia, for the
loss of the services provided by his wife. But an amendment to s 7 of the Civil Law
Act 1956 changed all that. What proviso (iii) to s 7(3) of the Act prohibits is an award
for the loss of consortium or services where that is the sole head of claim. The third
proviso does not prohibit an award for the loss of the services provided by a wife
when such a claim is coupled with another head of claim for either actually engaging
a housekeeper, as was the case in Neo Kim Soon (Administrator of the estate of
Phanna Mannechuang, deceased) v Subramaniam a/l Ramanaidu [1995] 3 MLJ 435
(folld). Neither did it apply here where it was proved that such a housekeeper had to
be engaged but was not because the plaintiff husband could not afford it due to his
impecuniosity.
SUPPORT FROM DECEASED’S PENSION
S.7(3)(i)(c) Civil Law Act 1956 (as amended)
(c) any pension or gratuity, which has been or will or may be paid as a
result of the death; or
S.7(3)(iv)(a) Civil Law Act 1956 (as amended)
(a) take into account that where the person deceased has attained the
age of fifty five years at the time of his death, his loss of earnings for any period after
his death shall not be taken into consideration; and in the case of any other person
Lee In Fong v Zaharah bte Johan [1992] 4 CLJ 2108
Simati berusia 63 tahun dan menerima pencen S$440 sebulan bila ia

meninggal dunia dalam kemalangan maut yang melibatkan kedua-dua perayu. Pada
masa hayatnya simati menanggung segala perbelanjaan rumah dan selepas tragedi
tersebut balu simati kehilangan sara hidup.
Perayu tidak mempertikaikan pendapat Majistret yang memutuskan

bahawa perayu pertama adalah bertanggungjawab 100% ataupun amaun yang
ditetapkan olehnya.
Perayu menghujah bahawa mengikut s. 7(3)(iv)(a) Akta Undang-Undang

Sivil 1956, responden tidak berhak diberi sebarang pampasan atas kehilangan sara
hidup oleh sebab simati telah berumur lebih 55 tahun pada tarikh kematian. Oleh
sebab penetapan amaun tersebut diasaskan atas pencen simati, keputusan Majistret
itu adalah salah.
Diputuskan:
[3] Seksyen 7(vi)(a) juga tidak terpakai kerana tuntutan gantirugi itu
bukan diasaskan atas kehilangan pendapatan akan tetapi diasaskan atas pencen
yang sedia ujud pada tarikh kematian yang menjadi sumber sara hidup responden
sebelum kematian simati. Juga pencen tersebut tidak boleh disifatkan sebagai
pendapatan.
[4] Amaun pampasan hendaklah diasaskan atas sumber sara hidup yang
dinikmati oleh responden ketika hayat simati dahulu, iaitu pencen tersebut.
MULTIPLIER
S.7(3)(iv)(d) Civil Law Act 1956
(d) take into account that 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 fifty four years at the time of his death, the number of
years' purchase shall be calculated by using the figure 55, minus the age of the
person at the time of death and dividing the remainder by the figure 2.
Lee Ban Hoo v S Veeriah [1982] 2 MLJ 188
Held:
As to the loss of dependency, the deceased having been 35 years of age at

the time of her death would have had a life expectancy of say, 20 years, but
considering the ages of the dependent child and the dependent father of the
deceased, dependency has to be calculated on the basis of the child attaining 18
years of age.
Chong Khee Sang v Pang Ah Chee [1984] 1 MLJ 377
Held:
Dependency loss was reduced to $75/- p.m. from the $100/- p.m. assessed
by the learned President while the number of years purchase was reduced from 17
years to 7 years as the prospect of the deceased, a bachelor of 33 years, getting
married was so much on the cards that the plaintiff could expect continued support
for a further 7 years only at the very most.
Parvathy v Liew Yoke Khoon [1984] 1 MLJ 183
The High Court awarded damages of RM95,100 based upon the actual
salary plus the specialist allowance which was a pensionable allowance and which
formed an integral part of a specialist’s salary.
The deceased, in view of the youth of his 3 children, would have continued
working until the age of 60 when I think it would, in normal circumstances, have been
quite difficult for him to continue his arduous physical duties as a dental surgeon. I
would accordingly, taking into account contingencies, give the plaintiffs 5 years'
purchase of the multiplicand of $2,100/-.
It is undisputed that people live longer these days and the law on pensions
now is that a wife is entitled to the full pension of her husband after his death if she
does not remarry. I think a period of 12 years, taking the wife's age into account and
allowing for contingencies, from the date the deceased would have retired is a fair
and reasonable period for the enjoyment of the pension. I accordingly award 12
years' purchase of the multiplicand derived from the difference between what the
deceased would have drawn had he survived and what the wife now draws.
Chong Sow Ying v Official Administrator [1984] 1 MLJ 185
Held:
Merely producing an income tax assessment could not show the actual
earning without more details of deductions, etc. The widow's evidence on the amount
she used to receive from her late husband had not been disproved. In the
circumstances a dependency of $500 was a fair and reasonable figure to arrive at.
Having regard to the accused's age of 61, a multiplier of 6 years would be
reasonable.
Choh Nyee Ngah v Syarikat Beruntong Sdn Bhd [1989] 3 MLJ 112
As regards quantum of damages, the funeral expenses had been agreed to

at $2,000. On the evidence I fined that the deceased was earning an average of
$800 per month. He took meals in the house whenever he was not in the jungle
loading logs on his lorry, when he had to sleep there overnight. His wife's (PW3)
evidence shows that he needed about $300 to $400 per month for his own
expenses. He used to give his wife for household expenses between $400 to $500
per month. PW4, deceased's fellow driver with five children, used to give his wife for
household expenses between $300 to $700 per month. I would assess that the
deceased's contribution to his wife and family per month be $450. Pre-trial loss of
dependency between date of death of deceased to date of trial is 65 months × $450
= $29,250. Deceased was 42 years old when he died on 17 June 1983. I would give
five years multiplier (55 ⁕ 47 × ⅔) and on the annuity table this gives $23,380 as
future loss of dependency.



multiplicand.
remoteness.
Latif Che Ngah & Anor v Maimumah Zakaria [2002] 4 MLJ 266
This is the appellants' appeal against the quantum of damages only from
the judgment of the sessions court judge in a road accident in which the respondent,
a housewife with six children, had lost her 33 year old husband, upon whom they
were dependants for support. The respondent's claim was for loss of dependency
pursuant to s 7 of the Civil Law Act 1956 ('the Act'). The learned sessions court judge
awarded the respondent damages for loss of support based on a multiplicand of
RM1,500 per month with a multiplier of 11. The appellants appealed against the
award contending that the deceased's income was not supported by any
documentary evidence and that the total sum awarded should be subjected to a
further cut of ⅓ for contingencies.
(1) In the circumstances of this case, though the deceased's income was
not substantiated, the court still found the amount of RM1,500 per month as loss of
support to the deceased's wife and six children as fair and reasonable. There was no
basis for the appellants' fear that the respondent could have exaggerated the
amount. The learned judge, who heard and saw the respondent, obviously had
accepted the evidence of the respondent and had taken into consideration the fact
that she had six children to support, in awarding the amount. The award was
justifiable in the circumstances.
(2) The obvious difference between Chan Chin Ming and the claimant in this
case was that under Chan Chin Ming, the claimant was the deceased's mother
whereas the claimant in the case under consideration was the deceased's widow.
Therefore, since Chan Chin Ming can be distinguished from the present case, the
ratio decidendi pertaining to the number of years' purchase in Chan Chin Ming did
not apply to the present case (see p 275A-B);Chan Chin Ming v Lim Yok Eng [1994]
3 MLJ 233 distinguished.
(3) Accordingly, for the purpose of the present case and following the later
decision of the Court of Appeal in Ng Soo Ang, the court held that the learned judge
of the sessions court made no error of law when he relied on the Supreme Court
case of Marappan & Anor v Siti Rahmah bte Ibrahim [1990] 1 MLJ 99 (refd) for the
interpretation of s 7(3)(iv)(d) of the Act as the authority for not allowing a further cut
of ⅓ from a total sum of RM198,000 which he awarded for loss of dependency based
on the multiplier of 11 years' purchase and the multiplicand of RM1,500 per month
(see p 275F-G); Ng Soo Ang v Chai Chuan Seng (Rayuan Sivil No P-04-18 tahun
1998) followed.
Muniyandi a/l Periyan & Anor v Eric Chew Wai Keat & Anor [2003] 1 LNS 241
Held:
Although the Court of Appeal case of Takong Tabari v Government of

Sarawak & Ors and another appeal [1998] 4 MLJ 512 (refd) which enunciated a ⅓
deduction on damages for loss of support, was still binding on the High Court based
on the doctrine of stare decisis, nevertheless, as the ⅓ deduction was a matter of
discretion based on the evidence, the High Court had a choice between Takong
Tabari and the decision of another panel of the Court of Appeal in Tan Phaik See (Ibu
kepada Tan Hock San (si mati)) dan Tan Cheng Gek (Ibu Kepada Ng Chin Chai (si
mati)) lwn Chuah Seng Boon Civil Appeal No P04-14 of 1996 where the Court of
Appeal did not make the ⅓ deduction but decided for a multiplier of 16 years. In the
instant case, the High Court took the liberty to follow the decision of the Court of
Appeal in Tan Phaik See and accordingly, the ⅓ deduction on damages for loss of
support was not made (see p 569E–H); Tan Phaik See (Ibu kepada Tan Hock San (si
mati)) dan Tan Cheng Gek (Ibu Kepada Ng Chin Chai (si mati)) lwn Chuah Seng
Boon Civil Appeal No P04-14 of 1996 followed.
Tan Phaik See (Ibu kepada Tan Hock Sam (simati) & Tan Cheng Gek (Ibu kepada
Ng Chin Chai (simati) v Chuah Seng Boon, Civil Appeal No P04-14-96
Held:
The Court of Appeal did not make the ⅓ deduction but decided for a
multiplier of 16 years.
Kanan Subramaniam & Satu Lagi v Aman Syah Abadzyuid [2002] 7 MLJ 561
Ibrahim Ismail & Anor v Hasnah Puteh Imat & Anor and Another Appeal [2004] 1
MLJ 525
Held:
The majority decision in Chan Chin Ming was wrong. It was the powerful
dissenting decision (of Edgar Joseph Jr SCJ) that stated the law correctly. The
majority in Chan Chin Mingfailed to apply the appropriate guide to statutory
interpretation and hence fell into error. What the majority addressed was the practice
of making multiplier deductions prevalent in respect of dependency claims made by
parents prior to the amendments. However, the correct position is that there was no
mandatory rule for deductions of the extent referred to by the majority. More
importantly, this was not the target of parliamentary intervention. The majority ought
to have addressed the object or purpose of the amendments introduced by
Parliament by way of ss 7(3) and 28A, which was to address the very high award of
damages for personal injuries and death (see paras 4, 7, 8 and 9); Chan Chin Ming v
Lim Yoke Eng [1994] 3 MLJ 233 (majority not followed).
The Court of Appeal was entitled to depart from Chan Chin Ming since it
was wrongly decided by the majority. Chan Chin Ming was decided at a point of time
when the High Court had original jurisdiction over personal injury and fatal accident
claims. Appeals were then preferred to the Supreme Court which stood at the apex
of the judicature. However today, the Court of Appeal stands at the apex of personal
injury and fatal accident claims. Thus if a decision of the former Supreme Court is
obviously wrong, it would be the duty of the Court of Appeal to say so (see para 16);
Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd [2002] 4 All ER 689
followed; Solle v Butcher [1949] 2 All ER 1107 (refd) and Young v Bristol Aeroplane
Co Ltd [1944] 2 All ER 293 referred.
SUPPORT FROM DECEASED AFTER 55
Chong Sow Ying v Official Administrator [1984] 1 MLJ 185
Although deceased was 61 years old, the photograph of his body showed
that he was a robust 61 year-old and I believe he has to be especially in the kind of
business he was engaged in when he had to travel almost daily to his work site. On
this consideration I am of the view that a multiplier of 6 years is fair and reasonable
Lee In Fong v Zaharah bt Johan [1992] 4 CLJ 2108
Simati berusia 63 tahun dan menerima pencen S$440 sebulan bila ia

meninggal dunia dalam kemalangan maut yang melibatkan kedua-dua perayu. Pada
masa hayatnya simati menanggung segala perbelanjaan rumah dan selepas tragedi
tersebut balu simati kehilangan sara hidup.
Perayu tidak mempertikaikan pendapat Majistret yang memutuskan
bahawa perayu pertama adalah bertanggungjawab 100% ataupun amaun yang
ditetapkan olehnya.
Perayu menghujah bahawa mengikut s. 7(3)(iv)(a) Akta Undang-Undang

Sivil 1956, responden tidak berhak diberi sebarang pampasan atas kehilangan sara
hidup oleh sebab simati telah berumur lebih 55 tahun pada tarikh kematian. Oleh
sebab penetapan amaun tersebut diasaskan atas pencen simati, keputusan Majistret
itu adalah salah.
Diputuskan:
[3] Seksyen 7(vi)(a) juga tidak terpakai kerana tuntutan gantirugi itu
bukan diasaskan atas kehilangan pendapatan akan tetapi diasaskan atas pencen
yang sedia ujud pada tarikh kematian yang menjadi sumber sara hidup responden
sebelum kematian simati. Juga pencen tersebut tidak boleh disifatkan sebagai
pendapatan.
[4] Amaun pampasan hendaklah diasaskan atas sumber sara hidup yang
dinikmati oleh responden ketika hayat simati dahulu, iaitu pencen tersebut.
S.7(3)(iv)(a) Civil Law Act 1956
S.7(3)(1)(c) Civil Law Act 1956
(c) any pension or gratuity, which has been or will or may be paid as a
result of the death;
LOSS MUST BE REAL
PROSPECTIVE DEPENDENCY

Barnett v Cohen [1921] 2 KB 461
A child under four years of age through the negligence of the defendants
was killed and his father brought an action under the Fatal Accidents Act, 1846 to
recover damages for the death of his son.
The facts found by the Court were: the deceased child was a bright and
healthy boy. He had gone to school when only two years of age. The plaintiff (his
father) had two other children, both boys aged 9 and 13. The plaintiff was retail and
wholesale trading engineer and had a good business. He earned about £1000 a
year, his age was 40 and his health was not good. His wife was aged 33 years and
her health was also not good. The plaintiff meant to give the deceased child good
education by sending him to an ordinary school till about 14 years, then to a
secondary school, and then, to a University.
The question before the Court was whether the plaintiff had proved the
pecuniary loss requisite to establish a cause of action.
It was held that the plaintiff had not satisfied the Court that he had a
reasonable expectation of pecuniary benefit.
Hassam bin Mohamad & Anor v Teoh Kim Seng [1987] 1 MLJ 328
In this case the plaintiffs sought to recover damages for the death of their
son, Mohammed Nazri, a boy of 12 years of age who was killed in a road accident
on November 28, 1981. The cause of the accident was the negligent driving of a
motor lorry by the defendant. Liability was admitted. The plaintiffs claimed for loss of
benefits under section 7 of the Civil Law Act, 1956 and also under section 8 of the
Act as administrator and co-administratrix of the estate of the deceased.
Held:
(1) although the deceased helped his father in the running of the father's
business the so-called services rendered by the deceased to both plaintiffs were not
reducible to money value. The plaintiffs also failed to prove that they had a
reasonable expectation of pecuniary benefit if the deceased had lived. Therefore, the
claims under section 7 of the Act failed;
Taff Vale Rly Co v Jenkins [1913] AC 1
Held:
It is not a condition precedent to the maintenance of an action under the

Fatal Accidents Act 1846 that the deceased should have been actually earning
money or money’s worth or contributing to the support of the plaintiff at or before the
date of the death. However, it must be shown that the plaintiff had a reasonable
expectation of pecuniary benefit from the continuance of her life.
Chiang Boon Fatt v Lembaga Kemajuan Negeri Pahang [1983] 1 MLJ 89
Held:
It has always been the practice in Malaysia to make an award, in a fatal

accident claim, of not only an amount under section of the Civil Law Act for the loss
of expectation of life but also under section 7 of the Act by way of loss of
dependency if on a balance of probability the court could find for such a loss;
On the probabilities there was a loss of dependency assessed on the

moderate figure of $200 per month which gave $4,000 for 1980 and 1981 and for a
period of 5 years at $200 per month which applying the annuity tables gives $10,200
to make a total of $15,000 by way of loss of dependency.
Latiff Che Ngah & Anor v Maimunah Zakaria [2002] 4 MLJ 266
This is the appellants' appeal against the quantum of damages only from
the judgment of the sessions court judge in a road accident in which the respondent,
a housewife with six children, had lost her 33 year old husband, upon whom they
were dependants for support. The respondent's claim was for loss of dependency
pursuant to s 7 of the Civil Law Act 1956. The learned sessions court judge awarded
the respondent damages for loss of support based on a multiplicand of RM1,500 per
month with a multiplier of 11. The appellants appealed against the award contending
that the deceased's income was not supported by any documentary evidence and
that the total sum awarded should be subjected to a further cut of ⅓ for
contingencies.
(1) In the circumstances of this case, though the deceased's income was
not substantiated, the court still found the amount of RM1,500 per month as loss of
support to the deceased's wife and six children as fair and reasonable. There was no
basis for the appellants' fear that the respondent could have exaggerated the
amount. The learned judge, who heard and saw the respondent, obviously had
accepted the evidence of the respondent and had taken into consideration the fact
that she had six children to support, in awarding the amount. The award was
justifiable in the circumstances.
(2) The obvious difference between Chan Chin Ming and the claimant in
this case was that under Chan Chin Ming, the claimant was the deceased's mother
whereas the claimant in the case under consideration was the deceased's widow.
Therefore, since Chan Chin Ming can be distinguished from the present case, the
ratio decidendi pertaining to the number of years' purchase in Chan Chin Ming did
not apply to the present case.
(3) Accordingly, for the purpose of the present case and following the
later decision of the Court of Appeal in Ng Soo Ang, the court held that the learned
judge of the sessions court made no error of law when he relied on the Supreme
Court case of Marappan & Anor v Siti Rahmah bte Ibrahim [1990] 1 MLJ 99 (refd) for
the interpretation
2002 4 MLJ 266 at 267 of s 7(3)(iv)(d) of the Act as the authority for not
allowing a further cut of ⅓ from a total sum of RM198,000 which he awarded for loss
of dependency based on the multiplier of 11 years' purchase and the multiplicand of
RM1,500 per month (see p 275F-G); Ng Soo Ang v Chai Chuan Seng (Rayuan Sivil
No P-04-18 tahun 1998) followed.
ILLEGAL EARNINGS AND SPECULATIVE LOSS
Burns v Edman [1970] 2 QB 541
The widow of a man killed in an accident claimed damages for the loss of
dependency. The deceased’s entire earnings came from proceeds of crime
committed by him, i.e. from thefts. The court held that she could not succeed in
claiming such damages, even as a dependant and that ex turnip cause non orator
actio applied.
Chua Kim Suan (Administratix of the Estate of Teoh Teik Lee, Decd) v Govt of
Malaysia [1994] 1 MLJ 394
Held:
Any claim for loss of earnings from an illegal source should not be
allowed on the ground that it is against public policy. Therefore, the decision of the
SAR and of the judge in this case that the claim for that part of the damages as
related to the illegal operation of the taxi should not be allowed, was upheld.
A court should regard a figure from any notice of assessment of income

tax as res inter alios and consider the evidence with an open mind. The income of
RM898 per month as found and assessed by the SAR was income not illegally
earned and should be adopted and accepted.
LOSS DUE TO RELATIONSHIP
Sykes v North Eastern Railway Co (1875) 44 LJCP 191
Where the deceased son was prior to his death working for his father who
fully paid the deceased;
The court held when claiming for loss of support, that the father though
normally entitled to claim such loss of support, could not claim it as what the father
lost was the benefit of fully paid services in his capacity as employer and not as
dependant to his son.
Burgress v Florence Nightingale Hospital for Gentlewoman [1955] 1 QB 349
Held,
(1) that the benefit, to qualify under the Act, had to be one which arose from
the relationship between the parties, and although the relationship of husband and
wife was a convenient and usual incident of such a dancing partnership, in essence
the partnership was a business one, with the marriage relationship superimposed on
the dancing partnership; accordingly, there were no services rendered by the wife to
the husband and no benefit arising in the dancing partnership that could properly be
attributed to the relationship of husband and wife; Sykes v. North Eastern Railway
Co. (1875) 44 L.J.C.P. 191; 32 L.T. 199 applied; but
(2) when a husband and wife with either separate incomes or a joint income
were living, together and sharing their expenses, then each, by the fact of the
sharing, was conferring a benefit on the other which arose from the relationship of
husband and wife; and, accordingly, there was a benefit which came within the Fatal
Accidents Act, and was therefore recoverable by the husband.
Malyon v Plummer [1963] 2 All ER 344
Held:
The actual value of the services rendered by the plaintiff to the company
was only about £200 per annum. However, she was paid £600 to £800 per annum as
a salary. The court held that a substantial part of her salary arose from the husband
and wife relationship and this was a convenient machinery through which she
received money form her husband for her household expenses. Therefore, only £200
per annum could be said to be the plaintiff’s actual benefit arising out of an
employer-employee relationship. This £200 was ordered to be left out in assessing
the loss of dependency since this was not a benefit lost by the plaintiff due to her
husband’s death.
PROSPECTIVE REMARRIAGE
Chan Yoke May v Lian Seng Co Ltd [1962] MLJ 243
In the assessment of general damages under section 7 of the Civil Law

Ordinance, 1956 it is necessary, in view of the principles enunciated in Nance v
British Columbia Electric Rly Co Ltd [1951] AC 601 615at 615, to estimate (a) the
deceased's expectation of life if he had not been killed when he was; (b) what sums
during these years he would probably have applied to the support of his wife and
children, bearing in mind the allowances to be made for the acceleration of the
accrual of interest, the possibility that some of the beneficiaries might have
predeceased the deceased had he lived and that the deceased's wife might remarry.
Further there should be added to the above what the deceased would have saved
during the estimated expectation of life and what of these additional savings his
family would have been likely to inherit.
APPORTIONMENT
(4) The amount, other than the amount awarded under proviso (iii) to
subsection (3) and the amount recovered under subsection (3B)(b), so recovered
after deducting all costs and expenses, including the costs not recovered from the
defendant, shall be divided amongst the before-mentioned parties, or any of them in
such shares as the Court by its judgment or decree directs.
Ahmad Nordin bin Haji Maslan & Anor v Eng Ngak Hua & Ors [1985] 2 MLJ 431
The court apportioned individual sum to the dependants. The apportionment

to the widow about two-thirds of the amount because she has to look after and
support the three children and provide them with education and other necessities
until they reach the age of majority.
HEALTH OF THE DECEASED
Moores v Co-operative Wholesale Society Ltd (CA) Times, 9 May 1955
The plaintiff, a police officer, had been injured in a previous accident, and as
a result his prospects of continuing in the police force were very slight. The second
accident rendered him unfit for police duty.
The Court of Appeal held that the effect of the second accident was to
deprive the plaintiff of a ‘poor chance’ of continuing in the police force, and they
reduced the damages substantially from £3,000 to £1,000.

(a) take into account that where the person deceased has attained the age
of fifty five years at the time of his death, his loss of earnings for any period after his
death shall not be taken into consideration; and in the case of any other person
DIRECT MULTIPLICATION OR ANNUITY TABLES
In converting the basic figure of monthly net loss into a lump sum by taking
a number of years' purchase, whether such number of years' purchase is arrived at
by assessment in each individual case, or is fixed statutorily with effect from 1
October 1984 for assessing a man's loss of earnings, should annuity tables be used
because of the word 'purchase' or should such number of years' purchase be treated
as a direct mathematical multiplier?
This court in Dirkje Peiternella Halma v Mohd Noor bin Baharom & Ors
[1990] 3 MLJ 103 when applying the statutorily fixed number of 16 years' purchase,
treated it as a direct multiplier, and for the sake of uniformity, I would follow suit. The
future loss of support would be RM375 x 65 (months) = RM24,375.
Dirkje Peiternella v Mohd Noor bin Baharom & Ors [1990] 3 MLJ 103
PRE-TRIAL & POST-TRIAL
Zulkifli Ayob v Vesalini K Madhavan & Anor [2000] 1 CLJ 117
Held:
Taking into account the retiring age of 55 years, and that six years ought to
be deducted for contingencies, the number of years' purchase ought to be varied to
13 years. It follows that the total amount for loss of support would be RM195,000,
based on the formula RM1,250 per month x 12 months x 13 years. This global figure,
however, should be distributed between the future loss of support and the pre-trial
loss.
It is common ground that the pre-trial period was 141 months. In the
circumstances, that amount arrived at for loss of support should be deducted from
the global figure, because item (a) and item (b) represent the total loss of support
from the date of death of the deceased due to the dependants under s. 7 of the Civil
law Act 1956. This has not been done by the learned judge below.
Consequently, the true figure for item (a), being future loss of support,
should be RM18,750 only being for a period of 15 months (ie 13 years minus 141
months pre-trial period) instead of RM270,000. For item (b), being the pre-trial loss,
RM176,250 should be awarded instead of RM211,500, on the basis of RM1,250 per
month x 141 months.
BEREAVEMENT
S.7(3A) Civil Law Act 1956 (as amended)
(3A) An action under this section may consist of or include a claim for
damages for bereavement and, subject to subsection (3D), the sum to be awarded
as damages under this subsection shall be ten thousand ringgit.
S.7(3B) Civil Law Act 1956 (as amended)
(3B) A claim for damages for bereavement shall only be for the benefit -
(a) of the spouse of the person deceased; and
(b) where the person deceased was a minor and never married, of his
parents.
S.10 Law Reform (Marriage and Divorce) Act 1976
Avoidance of marriages where either party is under minimum age for

marriage
10. Any marriage purported to be solemnized in Malaysia shall be void if at

the date of the marriage either party is under the age of eighteen years unless, for a
female who has completed her sixteenth year, the solemnization of such marriage
was authorized by a licence granted by the Chief Minister under subsection 21(2).
Noor Famiza bte Zabri & Anor v Awang bin Muda & Anor [1994] 1 MLJ 599
Held:
The first plaintiff, as the spouse of the deceased, was granted RM10,000 for
bereavement under s 7(3A) read with s 7(3B)(a) of the Civil Law Act 1956
Santhanaletchumy a/p Subramaniam v Zainab bin Saad & Anor [1994] 4 CLJ 192
Held:
In regard to bereavement, since it is not part and parcel of general

damages, there is no interest imposed on it.
Hooi Seong (The Beneficiary of Hooi Teck Wen, Decd) v Ooi Pay Yeong (The
Legal Representative of the Estate of Ooi Kok Teong, Decd) [1995] 4 MLJ 670
The appellant claimed damages for bereavement under ss 7 and 7(3B) of

the Civil Law Act 1956 as the specified beneficiary of the deceased, Hooi Teck
Weng, who at the time of death was a minor. The sessions court judge held that the
deceased was 40% negligent and the defendant 60% negligent but disallowed the
claim for bereavement as it was never proven that the deceased was not married.
The appellant appealed to the High Court contending that it was not necessary to
prove that the deceased was not married since it could be presumed by virtue of s
10 of the Law Reform (Marriage and Divorce) Act 1976 that a minor had never been
married.
Before a claim for damages under s 7(3B) of the 1956 Act can be allowed, it
must be proved that the deceased was a minor and that he was never married.
Section 10 of the Law Reform (Marriage and Divorce) Act 1976 cannot assist as it
also implies that, a male who is under 18 years of age and a female between 16 and
18 years of age could be married by a licence granted by the Chief Minister under s
21(2) of the same Act. In any event, s 10 only concerns marriages solemnized in
Malaysia; it does not concern marriages solemnized overseas which may permit
marriages between minors.
The word 'and' interposed between the words 'was a minor' and 'never
married' in s 7(3B)(b) the 1956 Act would entail the same to be read disjunctively to
mean that before a claim for bereavement by the parents can be allowed, two
ingredients would need to be proved namely, that the deceased is a minor and that
he was never married, only upon being satisfied as to the marital status of the
deceased can the trial court allow such a claim.
Appeal dismissed.
Ibrahim Ismail & Anor v Hasnah Puteh Imat & Anor and Another Appeal [2004] 1
MLJ 525
There is an appeal and a cross appeal.
The appeal is by the defendant in the subordinate court. It is directed

against the failure by the trial and intermediate appellate courts to reduce the
damages for bereavement despite a finding of contributory negligence against the
deceased. It is trite that the effect of a finding of contributory negligence is to entitle a
defendant to a proportionate reduction of the damages awarded to a plaintiff. The
courts below were therefore plainly wrong. The appeal is irresistible. Counsel for the
respondent (plaintiff at first instance) did not resist it. We therefore allowed it.
The plaintiff's cross appeal relates to the Chan Chin Ming point. The trial
court applied the multiplier of 16 years prescribed by s 7(3)(iv)(d). On appeal by the
defendant the High Court reversed and reduced the multiplier. The plaintiff now
seeks a restoration of the original award.
CONTRIBUTORY NEGLIGENCE
Veronica Joseph (f) and infant & Anor v Tu Kon Lin & Anor [1987] 1 CLJ 81
Held:
The Court should not make any finding of contributory negligence on the
part of the deceased as she was neither a claimant, defendant nor a third party, in
accordance with s. 12(1) of the Act, which provides that damages should only be
reduced by the Court after considering the claimant's share for the responsibility of
the damage. In the present case the claimants are the children and the contributory
negligence was that of their mother.
Lim Chai Onn v Normah bte Ismail [1994] 3 MLJ 105
Held:
Section 12(4) of the Act clearly states that in actions brought under ss 7 and
8, the damages recoverable shall be reduced proportionately to the extent of the
deceased's fault. There is no requirement that the deceased's estate must be heard
or made a party before apportionment of damages as indicated in Veronica Joseph's
case. As the beneficiaries of the estate are usually also the dependency claimants,
the practice stated in Veronica Joseph's case should not be encouraged so as to
avoid a multiplicity of suits on the same subject matter. The damages were therefore
reduced by 50%.
Balachandran a/l Samy & Anor v Chew Man Chan @ Chew Ah Yeow & Anor
[1996] 1 CLJ 169
On appeal to the High Court, Vincent Ng J., on accepting the ratio in

Veronica's case, went on further to say that "s.12(4) of the (Act) is merely a provision
of substantive law that gives power and jurisdiction to the court to reduce the
damages proportionate to any contributory negligence on the part of the deceased.
And, it is only when relevant procedural law had been complied with... that the court
can be moved to invoke the power to reduce the damages".
Rubaidah Dirin v Ahmad Ariffin [1997] 1 MLJ 677
Held:
Section 12(4) of the Act made it clear that if the deceased was contributorily
negligent, the dependant plaintiff in a s 7 action could only recover from the
defendant the proportion of the damage attributed to the defendant's share of the
blame. The reduction for proven contributory negligence in a s 7 action was
automatic. Section 7(5) only contemplated one action to be brought, thus the
proportionate reduction in s 12(4) must take place in that action, and hence reduced
the damages recoverable by the dependant plaintiff. The suggestion that the
defendant had to look to the deceased's estate for contribution for the failure to take
care of himself was misconceived, because contribution was something that
tortfeasors claim from one another, and contributory negligence was a defence set
up against the dependant plaintiff. The plaintiff had an independent right of action
and was no way associated with the tortfeasor (see pp 686B and 687I); Lim Chai
Oon & Anor v Normah bte Ismail & Anor [1994] 3 MLJ 488 followed, Veronica Joseph
(f), An Infant & Anor v Tu Kon Lin & Anor [1987] 1 CLJ 81 not followed and Maxfield v
Llewellyn & Ors [1961] 1 WLR 1119 distinguished.
ECOONOMIC LOSS
Teh Khem On v Yeoh & Wu Development Sdn Bhd [1995] 2 MLJ 663
Held:
In an action for negligence between parties who have no contractual

relationship, claims for pure economic loss would not be allowed. Thus, the plaintiff's
claims against the architect and the engineer in respect of the defective condition of
the house which were purely economic loss would fail.
Allan Bryan v Judith Anne Maloney [1998] 2 CLJ 503
Held:
Per Mason CJ, Deane and Gaudron JJ: [1]
A clear relationship of proximity existed between the appellant and the first
owner with respect to ordinary physical injury to her or her property and the appellant
was under a duty to exercise reasonable care in the building work to avoid a
foreseeable risk of such injury. That relationship of proximity and consequent duty of
care extended to mere economic loss sustained by the first owner when the
inadequacy of the footings became manifest.
Sunrise Bhd & Anor v L&M Agencies Sdn Bhd [1999] 3 MLJ 544
Held:
(1) A defendant must know the case he has to face. By merely pleading
'general damages to be assessed in respect of loss and damages suffered by the
first plaintiff company' did not entitle the first plaintiff to launch a claim for pure
economic loss, by way of submission. The only plea in negligence as found in the
pleadings was a claim in the alternative made on behalf of the second plaintiff in
negligence/breach of duty as against the defendant. There was no plea in
negligence made by the first plaintiff as against the defendant. In its submission, the
first plaintiff relied on 'breach of the duty by the defendant' but there was nothing
pleaded as against the defendant in respect of this alleged breach of duty. On this
ground alone, this claim by the first plaintiff must fail.
(2) The first plaintiff's claim also failed on the principle of remoteness. There
was no evidence that the first plaintiff suffered any loss. There was no claim
instituted against the second plaintiff by the first plaintiff for late delivery and there
was no way in which the court can consider the eligibility of the first plaintiff to launch
this claim by way of economic loss. Therefore, the first plaintiff's claim against the
defendant was dismissed
LIMITATION
(5) Not more than one action shall be brought for and in respect of the same
subject matter of complaint, and every such action shall be brought within three
years after the death of the person deceased.
S.8(3)(b) Civil Law Act 1956 (as amended)
(b) are taken not later than six months after his personal representative took
out representation.
Loo Khoo Chin and Loo An Mooi & Anor v Tan Cheng Hang & Ors [1997] 1 CLJ
109
Held:
The claim against the deceased motorcyclist is barred by s. 8(3)(b) of the

Act which provides that proceedings against the estate of a deceased person must
be instituted not later than six months after his personal representative took out
representation. In this case there was a time lapse of more than six months and
thus, despite the finding of guilt against the deceased motorcyclist, the plaintiffs'
claims against his estate is dismissed.
Lee Cheng Yee v Tiu Soon Siang & Anor [2004] 1 MLJ 670
Held, dismissing the appeal with no order as to costs:
(1) A plea of limitation need only be pleaded where limitation is not absolute,
such as under the Limitation Act 1953. It would not apply to a statute of limitation
which is absolute and without exception.
(2) In this case, s 7(5) of the Civil Law Act 1956, and equally s 7(5) of the
Civil Law Act (as amended in 1984) are absolute in nature. Accordingly, there was no
necessity to plead limitation.
PERSONAL REPRESENTATIVE ACTION
(8) If there is no executor of the person deceased or there being an

executor no action as in this section mentioned has, within six calendar months after
the death of the person deceased, been brought by the executor, the action may be
brought by all or any of the person, if more than one, for whose benefit the action
would have been brought if it had been brought by the executor, and every action so
to be brought shall be for the benefit of the same person or persons and shall be
subject to the same procedure as nearly as may be as if it was brought by the
executor.
FACTORS NOT TO BE TAKEN INTO ACCOUNT
(3) The damages which the party who shall be liable under subsection (1) to
pay to the party for whom and for whose benefit the action is brought shall, subject to
this section, be such as will compensate the party for whom and for whose benefit
the action is brought for any loss of support suffered together with any reasonable
expenses incurred as a result of the wrongful act, neglect or default of the party
liable under subsection (1):
Provided that -
(a) any sum paid or payable on the death of the person deceased under any
force of this Act;
(b) any sum payable, as a result of the death, under any written law relating
to employees' provident fund;
(c) any pension or gratuity, which has been or will or may be paid as a result
of the death; or
(d) 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;
KR Taxi Service Ltd & Anor v Zaharah & Ors [1969] 1 MLJ 49
Per Raja Azlan Shah J. in the court below: " 'Gratuity' in the proviso [to
section 7(3) of the Civil Law Ordinance, 1956] must be construed as apt to include all
direct payments of money by third parties to the dependants as a measure of
assistance. Such benefit is not deductible."
Pushpa a/p Meenasundarom & Ors v Awai bin Hassan & Ord [1995] 1 MLJ 510
Held, allowing the plaintiffs' claim:
Section 7(3)(i)(d) of the Act provides that in assessing damages, 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, shall not be
taken into account. It would seem that under the Socso Act, the payment of benefits
is confined to an employer/employee relationship as opposed to damages which flow
from tortious wrongdoing. In the circumstances, s 42 of the Act did not provide a bar
to the plaintiffs' claim.
INTERESTS
See: New provision under the Rules of Court 2012
ESTATE CLAIM
NOTES
8 Effect of death on certain causes of action
(1) Subject to this section, on death of any person all causes of action
subsisting against or vested in him shall survive against, or, as the case may be, for
the benefit of, his estate:
Provided that this subsection shall not apply to causes of action for
defamation or seduction or for inducing one spouse to leave or remain apart from the
other or to any claim for damages on the ground of adultery.
(a) were pending at the date of his death; or
(b) are taken not later than six months after his personal representative took
out representation.
PROPERTY LOST STOLEN OR DAMAGED
The estate may claim damages for this as special damages.
MEDICAL NURSING OR TRANSPORTATION EXPENSES
The estate may claim damages for this as special damages.
LOSS OF EARNINGS
Pickett v British Rail Engineering Ltd [1980] AC 136
Held:
Damages may be awarded for post-death loss of earnings.
Kandalla v British Airways Board [1980] 1 All ER 341
A claim by the administrator, a father, on behalf of the estate of each of his

two deceased daughters who died in an air crash. The plaintiff's claim, among other
listed heads for damages, was that each of the estates was entitled to recovery of a
substantial sum in respect of the earnings which his deceased daughters might have
been expected to earn during their working lives if they had not been prematurely
killed. It was contended by the defendant that such a claim did not survive for the
benefit of the deceased's estate as it was only where a victim brought an action in
his own lifetime that he could be awarded damages in respect of "lost years".
It was held in Kandalla's case that on principle a claim for "lost years" could
survive for the benefit of a deceased estate.
Gammell v Wilson [1982] AC 27
In that case, the plaintiff's 15 year old son was killed in a road accident by
the defendant's negligence and the trial judge awarded damages for his son's loss of
future earnings during the years of life lost to him on the basis of what the deceased
would have earned, less deduction of his living expenses. The defendant being
dissatisfied with the award appealed to the Court of Appeal.
It was held by the Court of Appeal that where a person died in consequence
of a defendant's negligence before he himself could bring an action for damages or
prosecute it to judgment, his estate was entitled to recover damages under section 1
of the Law Reform Act, 1934, for lost earnings in the lost years, for the recovery of
such damages was not excluded by section 1(2)(c) of that Act. It was also held that
since the right of recovery for the lost earnings in the lost years vested in the son
immediately before his death, the plaintiff as administrator of his estate was entitled
to recover damages for the benefit of the estate.
Thangavelu v Chia Kok Bin [1981] 2 MLJ 277
Held:
There was loss of dependency in this case and the amount would be
assessed at $14,185.60;
Noorianti v Tang Lei Nge [1990] 2 MLJ 242
Held:
It has been judicially accepted that a claim for damages for the lost years
can only succeed if the following two conditions have been satisfactorily established:
(i) there must exist on the evidence presented to the court a pre-accident
income of the deceased; and
(ii) from this income there must be a monetary sum which the deceased
would have been able to save after the deduction of an estimated sum to represent
his probable living expenses.
Lita Maddox v Calito C Guinto & Anor [1987] 2 MLJ 757
No claim is made in respect of pain and suffering and the sole issue before
me is what is recoverable in respect of the lost years. The damages recoverable
under this head were described by Lord Scarman in Gammell v Wilson [1981] 1 All
ER 578 593 in the following words:
"The loss to the estate is what the deceased would have been likely to have
available to save, spend or distribute after meeting the cost of his living at a standard
which his job and career prospects at time of death would suggest he was
reasonably likely to achieve."
In The Personal Representatives of the Estate of Wong Sai-Chuen

deceased v Tam Mei-Chuen & Ors [1983] HKLR 331 CA, the Court of Appeal of
Hong Kong (Roberts C.J., Yang and Barker JJ. A.; on May 12, 1982) considered the
correct approach of a judge in the face of Gammell v. Wilson in assessing the free
balance. They considered this to be that
(a) he assesses the net income (that is, the income after tax) which the
deceased would have been expected to receive during his lost years;
(b) he deducts from this figure only "the cost of maintaining

himself" (otherwise described as 'personal expenses');
(c) these personal expenses will include the cost of housing, food, clothing,
travelling, insurance, a holiday, entertainment, social activities and perhaps a car;
(d) the 'personal expenses' should reflect the deceased's own pattern of
expenditure when alive and the general standards of reasonable expectation of
persons of his background, status and income;
(e) the contributions which the deceased would have made to his family do
not form part of the cost of maintaining himself. Nor do his savings, if any.
The post-trial loss should be calculated at $41,640 × 12.25 × 25% =

$127,522.50.
Loo Khoo Chin and Loo An Mooi & Anor v Tan Cheng Hang & Ors [1997] 1 CLJ
109
Held:
Per curiam:
After 1 October 1984, an estate cannot claim for lost future earnings in the
lost working years. This follows from the amendment made to s. 8 of the Act by s. 3
of the Civil Law (Amendment) Act 1984.
S.8(2)(a) Civil Law Act 1956 (as amended)
(2) Where a cause of action survives as aforesaid for the benefit of the
estate of a deceased person, the damages recoverable for the benefit of the estate
of that person -
FUNERAL EXPENSES
S.8(2)(c) Civil Law Act 1956 (as amended)
(c) where the death of that person has been caused by the act or omission
which gives rise to the cause of action, shall be calculated without reference to any
loss or gain to his estate consequent on his death, except that a sum in respect of
funeral expenses may be included.
PAIN & SUFFERING
LOSS OF EXPECTATION OF LIFE
Teoh Kim Seng v Hassan [1987] 2 MLJ 209
The Civil Law Act was amended in 1984 and the amendment to section 8 of
the Act excluded from the application of that section damages for bereavement
under the dependency claim, damages for loss of expectation of life and damages
for loss of earnings in respect of any period after the person's death. Since the
deceased died in 1981 the amendment does not apply to this case.
Held:
The award for loss of expectation of life should be increased to $6,000.00

which would be a more reasonable figure.
of that person -
BEREAVEMENT
of that person -
MISCELLANEOUS ISSUES
INTERESTS
See: New provisions of Rules of Court 2012
-------------------------------------------------------------
5. PROPERTY DAMAGE CLAIM
-------------------------------------------------------------
WHAT IS PD CLAIM?
Abdul Hamid v Tan Chu Kim [1969] 2 MLJ 215
As regards the claim of $406.75 for repairs to his motor-cycle, I consider this to
be on the high side. According to the police officer who investigated this accident the
parts of the motor-cycle which were damaged were the handle bar, the front
mudguard, the number plate and both the front forks. Even if all these parts were
replaced by new parts I do not think that their cost would amount to $406.75. I agree
with counsel for the defendant that the first plaintiff's claim for the cost of the repairs
to the motor-cycle is grossly exaggerated. Although a receipted bill for $406.75 has
been produced, thee person who carried out the repairs was not called as a witness
and therefore counsel for the defendant has been denied the opportunity of cross
examining him to ascertain why the repairs cost as much as $406.75. I do not think
that the repairs to the motor-cycle would have cost more than $150 and accordingly I
award $150 for this item of the claim. In the result I award general damages to the
first plaintiff in the sum of $3,000 and another $205 as special damages.
Motor & General Insurance Sdn Bhd v Pok Siong Kok and Ors [1988] 3 MLJ 318
(1) When a car is destroyed in an accident, the normal measure of damages is

the market value of the car, ie what it would have cost to replace it, at the date of the
accident.
(2) There was no evidence of the market value of the car before the chief
magistrate. The fact that the plaintiff's insurers had been content to accept this
estimate of the car's value was not evidence of its market value at the time of the
accident. The plaintiff could only have succeeded in his claim by proving that the
market value of the car at the date of the accident exceeded $15,000 (the insured
value less depreciation). This he did not do.
(3) The order of the trial judge must be varied so as to give the plaintiff $1,200
instead of $6,200 by way of damages.
Chip Fong (Kuala Lumpur) Sdn Bhd & Ors v Guardian Royal Exchange Assurance
(Malaysia) Sdn Bhd [1992] 1 MLJ 598
The defendant issued a fire policy in respect of a building owned by the first
plaintiff. While the policy was in force, part of the first plaintiff's building was
destroyed by fire. The first to third plaintiffs claimed for the cost of reinstatement of
the building amounting to $133,000. The defendant agreed to indemnify the plaintiffs
but however contended that allowance for depreciation or betterment of the building
should be made. The defendant therefore alleged that applying the depreciating
factor of about 1.5% pa for the unexpired life of the building, the sum to be paid
under the policy should be $53,706. The senior assistant registrar gave judgment to
the plaintiffs for the sum of $133,000. The defendant appealed.
Held, allowing the appeal in part:
(1) In considering the cost of reinstatement, the court has to consider either
depreciation or betterment. In this case, the relevant factor is the principle of
betterment which is to make an allowance so that the insured is not getting
something new for something old.
(2) Considering the evidence in this case, the proper deduction was one-
quarter of $133,000. The senior assistant registrar's order was varied accordingly.
Lim Seong Choon & Anor v R Rayaratnam [1990] 3 MLJ 252
The plaintiff (respondent) claimed damages against the defendants for

negligence arising out of a motor accident. One item of special damages was a claim
for depreciation of the plaintiff's car in the sum of $1,000. At first instance, the
magistrate allowed this claim and further awarded interest on special damages at 8%
pa from the date of accident to the date of realization. The defendants (appellants)
appealed against this award.
Held, allowing the defendants' appeal:
(1) The plaintiff can recover under special damages for diminution in value of
his car but it is essential that appropriate evidence be called to prove it.
(2) In the present case, there was scanty and insufficient evidence for the
learned magistrate to make such a finding. First, there was no evidence whether the
car was a fairly new or an old car. Secondly, it was not enough to rely on the
adjuster's report, which was submitted to the insurance company for the purpose of
assessing the estimated cost of repair of the vehicle as a basis for arriving at the loss
of the market value of the car. Further, it was sheer guess work to award $1,000 as
compensation for the reduction in value of the car.
(3) Special damages may be fairly averaged out at half the usual rate of
interest from the date of the accident to the date of judgment. As the conventional
rate of interest permitted by the courts is 8% pa, the correct rate payable on special
damages must be at 4% and not 8% pa from the date of accident until the date of
judgment, and only thereafter would he be entitled to 8% pa.

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S.28A Civil Law Act 1956 (as amended)

28A Damages in respect of personal injury

(1) In assessing damages recoverable in respect of personal injury which does

(2) In assessing damages under this section -

(a) no damages shall be recoverable in respect of any loss of expectation of

APPLICATION OF ENGLISH LAW

Jamil bin Harun v Yang Kamsiah [1984] 1 MLJ 217

(1) Pain, suffering and loss of amenities $ 70,000

(1) that as a matter of Malaysian law it was wrong to itemise an award of

(2) though no statutory requirement exists in Malaysia for the itemization of

Bristow J., on December 7, 1977, awarded the plaintiff damages totalling

On the appeal, the plaintiff by a respondent's notice contended that £20,000

On appeal by the defendants and cross-appeal by the plaintiff: -

That, since a genuine deprivation, whether pecuniary or non-pecuniary in

(2) in the circumstances it must be assumed that the respondent's useful

Yang Salbiah v Jamil bin Harun [1981] 1 MLJ 292

(5) on principle there should be no interest on an award for future loss of

Jag Singh v Toong Fong Omnibus Co Ltd [1964] 1 WLR 1382

Ong Ah Long v Dr S Underwood [1983] 2 MLJ 324

(2) it is a well established principle that special damages in contrast to general

Fitter v Veal (1701) 12 Mod Rep 542

The Plaintiff recovered a small award of damages for an assault.

Brunsden v Humphrey (1884) 14 QBD 141

Duty to mitigate loss

The respondent was a pillion rider on a motorcycle which was involved in an

There are two judicial views on a plaintiff's entitlement to claim costs of

Loh Hee Thuan v Mohd Zaini Abdullah [2003] 1 MLJ 213

Represent the loss to the plaintiff that cannot be precisely quantified.

Sam Wun Hoong v Kader Ibramshah [1981] 1 MLJ 295

Yang Salbiah v Jamil bin Harun [1981] 1 MLJ 292

That, since a genuine deprivation, whether pecuniary or non-pecuniary in

Ratnasingam v Kow Ah Dek [1983] 2 MLJ 297

(b) Loss of future earnings prior to retirement @ Nil

(c) Loss of future earnings after retirement @ $31,172.23

(d) Loss of gratuity @ Nil

(e) Special damages @$500.00

Zuffre Haji Zakaria v Nurazmi Hj Layeb [1998] 5 CLJ 824

Claims for loss of future earnings in dependency claims

The common law practice of making deductions for contingencies, other

PAIN & SUFFERING + LOSS OF AMENITIES

Thirmalai & Anor v Mohamed Masry [1987] 1 MLJ 153

(a) fracture mid shaft right femur;

Liability was admitted.

Ong Teik Seng v Ho Swee Chee [1987] 2 MLJ 650

(2) liability should therefore be apportioned at 80% on the defendant and at

(3) damages were assessed as follows:

(b) Special damages (agreed) @ $435.00

(c) Loss of earnings: Post-trial @ $38,400.00; Pre-trial @ $16,260.00

Lee Ann v Mohamed Sahari [1987] 1 MLJ 252

(2) General Damages:

Wise v Kaye [1962] 1 QB 638

That, since a genuine deprivation, whether pecuniary or non-pecuniary in

Thangavelu v Chia Kok Bin [1981] 2 MLJ 277

Wee Siaw Hong v Lau Siew Tick [1979] 1 MLJ 232

Held, allowing the appeal:

Yasin bin Wahab v Loo Kok Wai [1980] 2 MLJ 43

Held, allowing the plaintiff's claim:-

Lau Ee Ee v Tang King Kwong [1986] 1 MLJ 308

Held, allowing the plaintiff's claim:

(a) scalp laceration – $500.