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DAMAGES IN

CASES OF
Damages in cases of death

s.8
S. 7
Estate
Dependancy Claim
claim (harta pesaka)
(mumtalakaat)

SPECIAL
GENERAL SPECIAL
DAMAGES
DAMAGES LOSS OF DAMAGES
FINANCIAL GENERAL LOSS OF
FUNERAL
BEREAVEMENT SUPPORT FUNERAL DAMAGES EARNING
MEDICAL
S. 7 (3A & 3B) CITRSR
NURSING
ORS
Dependancy claim (s. 7)
Dependancy claim
S. 7 CLA
COMPENSATION TO FAMILY OF A
PERSON FOR LOSS OCCASSIONED BY
HIS DEATH
To provide dependants a prudent sum to
supply them with the financial support that
would have been provided for them if the
deceased had not been killed
ctd
7(1) Df liable as would have been if death
had not ensued
7(2) wife, husband, parents, child (not
siblings Chan Chin Ming) .. 7(11)
7(5) Limitation period 3 years
What are damages recoverable?

S. 7

Dependancy
claim

GENERAL SPECIAL
DAMAGES LOSS OF DAMAGES
FINANCIAL
BEREAVEMENT SUPPORT FUNERAL
S. 7 (3A & 3B) CITRSR
What are damages recoverable ?
1. General Damages
S. 7 (3A) & (3B) Bereavement
up to RM10,000 only for..
1. spouse of the deceased
2. parents, if the child was a minor and
never married
2. For Loss of Earnings of the
deceased

S. 7 (3) (iv) LOSS OF FINANCIAL


SUPPORT
Cannot make claim for LOFE !!!
However, calculation the same as LOFE
All the rules applicable are in s. 7 (cannot
use s. 28A. (read the act)
Calculation for LOFS
Mcand x Mplier
The only difference in calculation
LOFS
Multilpier -S. 7 (3) (iv) (d)
For Pf aged 31-54,

55 age at the time of death


-------------------------------------
2
Ctd
The other problem with Multiplier in calculating
LOFS
The courts tend to take into account the vissitudes
of life (common law) taxing down the multiplier
Based on;
1. expected working life of the deceased
2. period of support the dependants require
3. marriage of the child / remarriage of the spouse
Ctd
Chan Chin Ming (1994) - Supreme Court
reduces multiplier .
However, see
Ibrahim Ismail (2004) CoA
Chan Chin Ming 7 Anor v Lim
Yok Eng (1994)
Deceased 25 years old
Df Appealed that;
1. LOFS of RM750 should be reduced to
half coz the deceaseds mother spent only
half and used half for the siblings
2. Whether a parents claim should follow
the statutory multiplier?
Held (majority) :
1. Court reduced the sum to RM375
2. reduced the multiplier to 7

Dissenting judgment
Edgar Joseph SCJ :The court has no
discretion to reduce multiplier
Ibrahim Ismail (2004) CoA
Gopal Sri Ram CJ argues that judges are
not allowed to tamper with statute
multiplier has been fixed
At present what is the position of the
courts?
Marimuithu Velapan v Abdullah Ismail (2007) 1
CLJ 436
2 decisions binding on the judge
CoA (Ibrahim) and Supreme Court (Chan Chin
Ming)
Which one to follow?
Court must dutifully observe the repeated
reminders of the Fed Ct without showing any
disrespect for the CoA must follow the doctrine
of binding precedent - Followed Chan Chin Ming
Read (Article)
Civil Claims Involving Motor vehicle
Accidents: Whether Court of Appeal the
Apex Court? 6 MLJ 2008

Anantha Kiruisan PSR v Teoh (2008) 4


MLJ 672
S. 7 Ctd- SPECIAL DAMAGES
3. Funeral expenses s. 7 (3) (ii)
a reasonable sum will be awarded by the
court - Jubil v Sunway Lagoon 2001
Azizah Manan 2014
4. Cost incurred to replace the services
rendered by spouse/child s. 7 (3) (iii)
Hum Peng Sin (Gopal Sri Ram CJ)
(this is not a claim for loss of service by the
spouse/child)
Hum Peng Sin v. Lim Hai Hoon (2001)
COA (Gopal Sri Ram CJ)

Issue : whether the Pf could recover deceaseds


services?
Wife deceased due to negligence of Df
She used to earn RM600.
Services rendered at home were cooking,
washing clothes, kept house.
Husband had to hire house maid and claims
RM400 for maids wages
S 7(3) (iii) no damages .. for loss of service
But Court held;
It is a different matter all together where a
husband not only lost his wife but was also put
to monetary loss which was a direct result of the
negligence employ maid, laundry etc
Therefore the Pf can recover damages for the
cost incurred to replace the services rendered
by his spouse (this is not loss of service)
LIMITATION PERIOD
S. 7(5) dependancy claims must be
brought 3 YEARS after the death of the
deaceased
Kuan Hip Peng v Yap Yin
Claim was brought 4 days late
Claim dismissed
DEPENDANCY CLAIM

S. 7

Dependancy
claim

GENERAL SPECIAL
DAMAGES LOSS OF DAMAGES
FINANCIAL
BEREAVEMENT SUPPORT FUNERAL
S. 7 (3A & 3B) CITRSR
Estate Claim (s. 8 CLA)
Estate Claim
S. 8 Effect of death on certain causes of
action
S. 8 gives the right to claim damages on
behalf of the estate of the deceased ie: the
loss suffered by the deceased before he
died
[ must read and understand s. 8 (1) on
survival of causes of action]
s. 8 Estate Claim

s.8

Estate
claim

SPECIAL
GENERAL
DAMAGES
DAMAGES
LOSS OF
- FUNERAL
-Pain & suffering EARNING
- MEDICAL
- loss of amenities
- NURSING
ORS
1. General Damages
Pain and suffering & Loss of amenities
Thangavelu
Goh Chai Huat
Father of the deceased was awarded RM6,000 for PS
and LOA, as the son was alive 1 hour . In that 1 hour he
was in agonising pain bleeding from nose and mouth
LOFE disallowed as it is not allowed under s. 8 and
besides that there was also no proof of earning (EPF
etc..)
2. Earnings
Only loss of earnings before death
s. 8 (2) (c)
3. Special Damages
Funeral (if it has not been claimed under s.
7)
Medical expenses
Nursing care
Others like property damage etc.
(as incurred before he died)
DAMAGES IN CASES ON
DAMAGE TO PROPERTY
2 CIRCUMSTANCES:

1. TOTAL DESTRUCTION
2. MERE DAMAGE
1. Total destruction
Can recover:
1. Measure of damages is the value the
property at the time of destruction
2. Consequential economic loss
Any loss as a consequence of the
destruction of property
loss of profit (if for business)
LIESBOSCH DREDGER
Court awarded
1. The market price for a new dredger
2. cost of transport of the new dredger
3. Compensation for the Pfs loss of
carrying out the contract with a thrid party
2. Mere Damage 2 choices
Pf can repair the Pf can sell the
damaged item damaged item

Damages ? Damages?
Mere Damage 2 choices
1. If Pf retains the damaged property and
intends to repair it

Pf can recover damages for:


COST OF REPAIR
2. If Pf intends to sell the damaged property,

Pf can recover damages for;


Diminution (reduction) in the value of the property
Eg : Waja 2nd hand RM 30K
After damaged in accident Pf can only sell for
RM 10K
He can claim for 20K (reduction in value)
Case:
Liew Choy Hung v Shah Alam Properties
Appls home damaged
Nuisance and negligence of Resp
Caused flooding and severe water logging
Appl chose to REPAIR the damage
What did the court award the Pf ?????
Federal Court held;
He should be entitled to
1. cost of repair
2. diminution in the value of the ppty
Reason: Because land has a reputation
Mitigation of Damage
Defendant is generally liable for the
damage sustained but on the other hand,
the plaintiff has a corresponding duty to
minimise his loss.
Plaintiff should show the court that he has
tried his best to deal with the injury and his
life after the injury
The failure of a plaintiff to take protective
steps after suffering an injury or loss can
reduce the amount of the plaintiff's
recovery.

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