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Continuation opinion writing

contract/ tort (general)


• Need to be familiar with Law of Contract
• Contracts Act 1950, Specific Relief Act 1950
• Cases (Malaysian cases/ precedents)
• Relevant chapter that needs to be revised:
• Elements of contract- offer, acceptance, consideration, intention to
create legal relation, capacity & certainty
• Terms of contract- express and implied terms
• Exclusion clause
• Voidable contracts- coercion, undue influence, fraud and
misrepresentation
• Void agreements- mistake, sections 24, 26, & 27-31
• Discharge of contracts- by performance, breach, frustration,
agreement
• Remedies- rescission, damages, specific performance and injunctions
• Need to be familiar with Law of Tort
• Cases ( focusing on Malaysian precedents/ cases)
• Relevant chapter that needs to focus on:
• Negligence (DOC, BOD, Damage & Defences)
• Vicarious liability
• Defamation & defences
• Nuisance
• Remedies ( damages/ injunction)
Always be practical, not academic
• Do not give a law lecture/ abstract advice
• Do not set out basic principles of law- dependent on whether the
reader is legally trained or otherwise
• Only cite authorities on point of law- do not make a statement of
fact and then cite a case to support it ( without explanation of the
case- i.e. just citing the name of the case)
• Do not cite all relevant cases that say the same thing
• Only cite statute that is integral part of the reasoning in an opinion-
paraphrase the statutory provision to make it shorter and clearer
but must do it accurately. Can also quote in full and set out your
understanding.
• Must always apply the law to the facts.
• Use ‘we’- don’t use ‘I’ / ‘me’ because you are writing as a firm
• Quote from the passage is allowed- but not over do it- it will become
academic essay..
• No submitting (we humbly submit…- always use in our view/
opinion…
OPINION WRITING IN TORT- running
down/ accident cases
INTRODUCTION
• Divided into – personal injury, property damage and death /
dependency claims
• Practicing lawyers – focusing on this area of litigation
• The trend nowadays, parties are asked to go for mediation-
based on Practice Direction 5/2010 before proceeding to trial
• What is mediation?
• Who is facilitating mediation in Court?
• Does it mandatory in Malaysia to go to mediation?
• Lawyers need to familiarize themselves with different heads of
claim for running down cases
• You need to know your law (cases) and relevant statutes that
can support your opinion/ submissions
Statutes
• Civil Law Act 1956
• Court of Judicature Act 1964
• Limitation Act 1953
• Road Transport Act 1987
• Highway code
• Evidence Act 1950
• Rules of Court 2012
• Subordinates Court Act 1948
Personal Injury Law
• Cause of action- liability in PI action is founded on the COA. It
is a set of facts that give a claimant (P) a right to bring an
action / to have an enforceable claim in Court.
• COA arises when there is an existence of a person who can
sue and be sued
• How to determine COA?
• remedy will be monetary compensation, i.e. damages
awarded by the Court
• Action for PI arise either at common law or based on statutory
provisions
Action for PI
• Need to know the principle of negligence + complied with
statutory requirements
• Leading case- Donoghue v Stevenson (1932) AC 562
• Duty of care
• Breach of duty
• An injury flowing from the breach (link between the breach and
injury vital)
• Proof of negligence: onus of proof is on the claimant (P) – to
show on a balance of probabilities the (D) has breached the
DOC which he owes to the (P)
• Standard of care applied- ‘reasonable man’- there is DOC not
to cause injury to your neighbor
• Unable to proof- action will fail
• For motor accident claim- a high standard of care is imposed
on the road, users/ drivers as laid down in the Highway Code
• Under Section 96 (1) of the RTA 1987- an authorized insurer
(insurance company) is bound to satisfy any judgment
obtained against a person covered by a policy of insurance… in
respect of any liability incurred by him that results in death or
bodily injury to a third party caused by or arising out of the
use of a motor vehicle… on a road
• There is no statutory right to sue an insurer for failure to
satisfy a judgment for damage to property.
• However, several conditions need to be satisfied:

• Judgment must have been obtained by the third party against


the insured person in respect of liability in a claim for damages
• Before the judgment is obtained, the notice of commencement
of action must be given to the insurer before or within 7 days of
the commencement of action pursuant to Section 96 (2) (a) RTA
1987 (if the writ has expired, the NOC is also not valid for the
purpose of the 2nd writ)
• Policy of insurance must be in force at the time of the happening
of the event which caused the death/ bodily injury
Limitation
• What is limitation
• Referred to Civil Procedure subject
Evidence on liability
• The liability of a D, can be agreed between P + D- if not
agreed, then need to be proved by the P
• The D, sometimes raise C/Negligence or makes a
counterclaim- so D must be ready to prove it.
• The evidence in trial- based on oral (witnesses) + documentary
presentation of the facts (police report, medical report etc.)
• The Court will decide based, on – the facts, expert opinion, if
accepted (if any) and any inferences that may be drawn from
the circumstances of the case i.e. refer to sketch plan & key,
nature of injuries
• In accident matters, sometimes the driver can be charged
under section 43 (1) and section 41 RTA 1987- consider
criminal case
Defenses
• Defenses at common law
• No breach of duty
• Cause beyond control of Defendant (inevitable accident)
• Volenti non fit injuria
• Statutory defences
• Contributory negligence- section 12 (1) CLA
• Limitation
Damages
• Damages are awarded as compensation for PI or death claims.
• To put the victim back to the original position as far as the
money can do as if the accident has not occurred
• For PI- monetary compensation is GD and SD
• GD?
• All damages which up to the time of hearing have not yet been
crystallized in actual disbursement but are still prospective
• It is non-pecuniary loss (Es) that cannot be precisely quantified/
to be determined by the Court depend on circumstances of the
cases
• Need not be specifically pleaded in the SOC
• Also include pecuniary losses that P will continue to suffer after
the date of trial
• SD?
• Actual pecuniary loss
• Financial loss that can be quantified and specifically proven by
receipts
• Out of pocket expenses from the date of the accident – the date
of trial/ settlement
• It is quantifiable and can be quantified till the last cents
• Must be strictly pleaded and proved (evidence must be produced
to substantiate the claim) + it is the duty of P to mitigate his loss
• E.g. hospital bills, travelling expenses, loss of earnings, cost of
repairs, funeral expenses, extra nourishing food, etc.
• Mitigation of loss and overlapping must be given due
consideration to avoid over compensation
• Overlapping?
• Scaling down to avoid over compensation
• It arises when injuries sustained are related to the same part /
function of the body- so the award should be only one
• Refer to case Wintsun Durai (2002) 7 MLJ 336
• Pain & suffering and loss of amenities?
• P will receive this award if he/ she is conscious and aware of what
happened
• The more conscious- the greater amount of damages awarded
• Compensation is given for both physical and emotional suffering
• Quantum assessed based on:
• Nature of injuries
• Period of hospitalization
• Awards in previous similar cases
• Age of Plaintiff
• Marital status
• Prospects in life (social & business position)
• Death cases:
• Die instantaneously
• Die shortly after the accident
• P unconscious
• Partially conscious
• The practice of the Court is to award one lump sum for both LOA
and P& S although there is a clear distinction between these two
heads of claim-
• Ramachandran (1997) 4 MLJ 237, Azizi bin Amran (2006) 4 AMR
381 CA, Ahmad Damanhuri Hussein (1990) 3 MLJ 53, Wong Li fatt
(1994) 2 MLJ 497
• Loss of Future Earnings
• Two division of loss of earnings: actual loss (from the date of
accident to the date of trial) and future loss (from the date of trial
to Judgment)
• A claim is made when the Plaintiff’s injuries makes him unable to
work and therefore suffers loss of income
• Loss suffered must be real and not speculative
• Principles of assessment- Section 28A(2)(c ) and (d) CLA
• Conditions precedents to claim LOFE: Section 28A (2) (c)
• Section 28A (2) (c ) (ii)
• Court shall not take into account any claim for prospect of future
increase in earnings ( only amount earned at the time of
accident/ injury is allowed)- Chan Ming Feng (1999) 1 MLJ
• Section 28A (2) (c ) (iii)
• Living expenses ( e.g. petrol, meals at work, bus fare etc.) to be
deducted ( must be proved and admitted in Court to be
deducted)
• Assessment: Multiplicant and Multiplier
• Loss of earnings
• Represent the P’s net annual loss of earnings (salary + allowance +
overtime +employer’s EPF contribution) deduct (-) income tax, living
expenses and contractual benefits e.g. salary period during disablement
period
• Multiplicand
• 12 ( represents 12 months to obtain annual income)
• Multiplier
• number of years purchase – Ibrahim bin Ismail & Anor (2004) 2 AMR 253
CA- the Courts have no authority to reduce the multiplier
• Section 28A(2)(d)(i) & (ii)\
• Below the age of 30 = the multiplier is 16years of purchase
• Between the age of 31-55 = determined by the formula 55 (minus) age of the P
at the date of accident (divide) by 2
• Contingencies of life (COL)
• The present judicial trend is to deduct 1/3 for living expenses- Rohani
Tengkah (2004) 5 MLJ 289, Esah Binti Ishak (2006) 6 MLJ 1
• However in some cases court of the view not to deduct the COL- Noraini
Binti Omar (2006) 3 AMR 185 CA
• ( no final decision / unending problem)
• Loss of earning capacity
• There is real risk that the P might be thrown out of work at some
future date
• Applies to those P who may still work and earn money albeit lower
than they earned before the injury (get a less paid employment
because of the effect of his injuries)
• Possible decrease in present income / risk of losing his present
employment (if no employment and not receiving earning- can’t
claim)
• The capacity to obtain any other work is weakened after the injury.
However loss of promotional prospects is not to be taken into
consideration.
• Requires strict proof- (can’t be speculative): e.g. medical evidence
• Damages may be awarded on a total or partial basis depending on
the evidence (Chong Chee Khong (1997)5 MLJ 786)
• Moliker ( 1977) All ER, Chan San Chuan (1991) 1 CLJ 297at 307 and
Tan Kim Chuan (1991) 1 CLJ 682
• Assessment
• Actual loss and Multiplicant (12) and Multiplier (the appropriate
multiplier by taking into account the age of P at trial, normal age
of retirement or lump sum payment)
• E.g. RM1500 x 10 years (normal period of retirement) x 12=.y
• Earnings from illegal activities
• Whether it is claimable?
• No action will arise from a wrong done in resolving the issue
• Court used this maxim ‘ex turpi cause non oritur actio’ and not
render assistance to a person whose COA is found upon an immoral /
illegal act -Chua Kim Suan (1994) 1 MLJ 394