DEPENDENCY CLAIMS

S. 7(1) of the CLA states that when a death of a person is occurred due to the wrongful act, neglect or
default provided that if such death had not ensued, the injured party is entitled to bring an action and recover
damages. While the other party who would be liable if death had not ensued, shall be liable to an action for
damages, notwithstanding the death of the person injured, and even the death was caused by any
circumstances that amounted to an offence under the Penal Code.
S. 7(2) of the CLA provided that the person who may bring a dependency claim includes the wife, husband,
parent, child and any person with disabilities under the care 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.
S 7(11) of the CLA defines …
“child” as son, daughter, grandson, granddaughter, stepson and stepdaughter.
“parent” as father, mother, grandfather, grandmother.
S 2 of the CLA interprets “persons with disabilities” as assigned to it in the Persons with Disabilities Act
2008.
Proviso from S 7(11) of the CLA 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.

Child
As in the case of Zulkifli Ayob v Velasini K Madhavan & Anor, the court held that the dependants, for
the purpose of s.7 of the CLA, are wife, husband, parent and child of the deceased. An adopted child cannot
therefore be a dependant unless the child is a legally adopted child.

It is vital to know that a posthumous child is included within the definition of dependant. In Mariyayee &
Anor v Nadarajan, the plaintiffs brought an action on behalf of the estate and dependents of the deceased
who sustained fatal injuries in an accident involving a bicycle ridden by the deceased and a motor car driven
by the defendant. The deceased left a widow and four infant children including a son born posthumously on
whose behalf the plaintiff claimed for special and general damages. It was held that the defendant was
negligent and wholly liable for the collision in which the deceased died, the posthumous child was entitled
to claim relief as a dependent 死者的孩子 and in the circumstances an allowance of $20 a month for his
support was fair and proper and general damages in the sum of $21,600 plus interest at 6% per annum
should be awarded to the deceased's widow and children.

Brothers and Sisters

In Chan Chin Ming v Lim Yok Eng, the Supreme Court held that money spent on the brothers and sisters
of a deceased provider could not be claimed as lost support because they were not dependants within the
meaning of the Act. Section 7 (3)(iv). In this case, out of the RM750 allegedly contributed by the deceased,
the direct benefit derived by the plaintiff, who was the mother of the deceased, was only RM375 as the rest
was used for the benefit of the sister of the deceased who was not a dependant under the Act. It is the actual
loss to the dependant that has to be taken into account. A divorced wife is not a dependant but the wife who
deserts the husband prior to his death can only claim for dependency if she shows a significant prospect of
reconciliation.

Wife
This can be seen in the case of Payne-Collins v Taylor Woodrow, where the deceased’s divorced wife
attempted to pursue a dependency claim under s.7 of CLA upon his death. The court held that a divorced
wife is not entitled to do so under the Fatal Accidents Act 1846.
A divorced wife is not being a dependant as opposed to wife who deserted her husband prior to his death. In
Davis v Taylor, the wife committed adultery and deserted the husband five weeks before his death. All
attempts of reconciliation failed shortly before his death and the deceased instructed his lawyers to institute
legal proceedings. Upon his death, she instituted a claim for dependency. The court decided that since the
plaintiff had failed to establish such a prospect of reconciliation, her claim failed.

In the case of Chong Sin Sen v Janaki a/p Chellamuthu, isteri yang sah kepada Muniappa Pillai a/l
Marith Muthoo, the plaintiff, the widow of the deceased who was killed in a road accident, brought an
action for loss of support against the defendant pursuant to s.7(2) of the CLA. The defendant contended that
plaintiff was not the lawful wife of the deceased because her marriage to the deceased contravened the
provisions of the Law Reform (Marriage and Divorce) Act 1976. The marriage was not solemnised
according to the Act as the deceased and the plaintiff had only undergone a customary marriage. The court
stated that in the absence of express elucidation by the legislature, the word ‘wife’ found in section 7(2) of
the CLA should not be restricted to a woman whose marriage has been solemnised and registered pursuant
to the provisions of any prevailing Act relating to marriages and divorce. The Married Women Act 1957
provides that a ‘married woman’ includes any woman who has undergone a customary marriage and
therefore that term would include a ‘wife’ found in section 7(2). Therefore, the respondent having
undergone a customary marriage with the deceased is a ‘wife’ and therefore has the locus standi to bring the
action on behalf of the deceased’s estate.

In Tan Sai Hong v Joremi bin Kimin & Anor, the plaintiff admitted that she and the deceased went
through a Chinese customary marriage which was never registered and the plaintiff and the deceased had
lived harmoniously as husband and wife and had children out of that union. The court held that s.7(2) of the
CLA, merely states inter alia, that an action under s.7(1) of the Act may be brought for the benefit of a wife
of a deceased. The section does not seek to differentiate nor make any distinction between a lawful and
unlawful wife. S.2 of the Income Tax Act 1967 however defines a ‘wife’, as being a woman who is regarded
by any law or custom, as the wife of a man.

LOSS OF SUPPORT
S 7(3)(iv)(?) of the CLA provides that in assessing the loss of earnings 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 sixty years at the time of his
death, his loss of earnings for any period after his death shall not be taken into consideration; unless it is
proved or admitted that the person deceased was receiving earnings by his own labour or other gainful
activity prior to his death. (60 岁之前死，他的 dependent 才可以 claim)

 (b4 amendment is aged 55) In the case of Lee In Fong v Zahara Bte Johan, the court allowed a
claim by the dependants of the deceased who was 63 years. The court held that if the deceased who
is over 55 years old but in receipt of pensions which he used to support his family, the pension would
not be considered ‘earnings’ for the purpose of dependency under sec 7(3)(iv)(a) and therefore the
age barrier in the sec would not apply). For a deceased, who had attained the age of 55 at the time of
his death, his loss of earnings for any period after his death shall not be taken into account. For a
deceased aged 55 years and above, there is deemed to be no financial support provided to dependants
and therefore there is no dependency, in the eyes of the law.

 ‘Prior’ to his death is synonymous with ‘before’ and it was held in Dirkje Pieternella Halma v
Mohd Nor bin Baharom that ‘before’ means ‘at the time.’ The deceased must therefore be earning
at the time of his death/her death. If the deceased was on no pay leave, temporarily laid off etc at the
time of the accident, his earnings will be treated as nil and therefore, his dependants will not be
entitled to loss of support.
Multiplicand
(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.
 In the case of White v London Transport Executive, ‘living expenses’ includes the cost of his
housing, heating, food, clothing, necessary travelling and insurance and things of that kind…’

 In Saw hau huat, administrator of the estate of soh mee leong deceased v mohd nor bin taya
& anor, an accident happened where a collision between car driven by deceased, aged 30 years
old at time of accident, and oncoming bus driven by first defendant and owned by second
defendant. The deceased is an assistant management accountant who earned RM2,120 per month,
including food allowance. In awarding the loss of earning, the court held that ‘living expenses’ is
the cost of food, the cost of his car petrol and its upkeep and his entertainment and sundry
expenses’ it does not include the deceased contribution to his dependants.

 The plaintiff’s living expenses shall be deducted from the amount awarded as seen in Abdul
Ghani bin Hamid v Abdul Nasir bin Abdul Jabbar & Anor, as per Hj Abdul Malik bin Hj
Ishak J, it is only logical that some part of the plaintiff’s earnings must have been devoted to his
own maintenance, but it can only be deducted if the amount is either admitted by the plaintiff or
proven by the defendant.

 In Chang Chong Foo v Shivanathan, the plaintiff had given evidence that he was a daily rated
worker and that from his income he spent RM60 a month on petrol for his motor-cycle and RM5
per day for meals at his place of work. On appeal, the Supreme Court held that the claimant's
petrol and meal expenses should be deducted. as the disabled claimant would no longer incur those
expenses and that the expenses were directly connected to earning his living. Harun Hashim SCJ
who delivered the judgment of the Supreme Court, said, the same language is used in both section
7(3)(iv)(c) and section 28A(2)(c)(iii). It follows that the legislature intended that the same
principle be applied in both cases. The judges are accordingly of the view that the term `living
expenses' in section 7 and section 28A bear the same meaning.
Multiplier
(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-nine years at the time of his death, the number
of years’ purchase shall be calculated by using the figure 60, minus the age of the person at the time of
death and dividing the remainder by the figure 2.
 Fixed multiplier: 30 years and below: 16

 Ibrahim bin Ismail & Anor v Hasnah bte Puteh, involved a claim under section 7 of the Civil
Law Act 1956. In this case, the trial court, the Sessions Court, had applied the statutory multiplier of
16 years as stated in section 7(3)(iv)(d)(i). On the defendant's appeal to the High Court, the learned
High Court judge reduced the multiplier. Before the Court of Appeal the claimant sought to restore
the trial court's award of the statutory multiplier. The Court of Appeal decided in favour of the
claimant, holding that there was no duty on the High Court judge to reduce the multiplier.

 Not fixed: Age 31 -59: 60 – (deceased age at the time of death)/ 2

Reduction of damages
 In Chan Chin Ming v Lim Yok Eng, in respect of determining the multiplier where the mother
claimed for loss of support as a consequence of the death of her 25 years old son in an accident. By
virtue of section 7(3)(iv)(d), the correct multiplier would be 16 years purchase as was then applied
by the High Court hearing the case. However, when the case went on appeal, the multiplier was
reduced to 7 years purchase by a majority decision of the Supreme Court as the deceased was
unmarried and once married would cease to support the mother. The majority judgement relied on it
to approve the ‘One-Third Deduction Rule’. The ruled is then followed in (Takong Tabari)
 In Takong Tabari v Govt of Sarawak, the deceased in this case was killed in an explosion. The
deceased's widow brought an action against the alleged tortfeasors claiming damages for loss of
support for herself and other dependants. In the High Court, the learned trial judge assessed the
multiplicand for the claim as RM2,500 per month. Since the deceased was 37 years old at the time of
his death the learned judge determined the multiplier to be nine years based on the formula provided
in that provision. Therefore, the total general damages for loss of dependency should be RM270,000.
The Court of Appeal upheld a trial judge's decision to reduce the total award for loss of support
under section 7 of the Civil Law Act 1956 by one-third for contingencies, other vicissitudes of life
and accelerated payment, thereby leaving the balance payable in the sum of RM180,000. Hence, 1/3
of the earnings will be deducted.
 Subsequently, in the case of Muniyandi & Anor v Eric Chew Wai Keat & Anor refused to follow
Chan Chin Ming and Takong Tabari, and allowed a multiplier of 16 years in full.

BEREAVEMENT 丧亲

S. 7(3A) of the CLA states that any 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 thirty thousand ringgits.
S. 7(3B) of the CLA stated that a claim for damages for bereavement shall only be for the benefit…
(a) the spouse of the person deceased;
(b) the child of the person deceased; and
(c) the parents of the person deceased.
S. 7(3C) of the CLA stated that where a claim for damages is made under subsection (3B), the sum awarded
shall be divided equally between them subject to any deduction likely to be made in respect of all costs and
expenses including costs not recovered from the defendant.
 In the case of Noor Famiza bte Zabri & Anor v Awang bin Muda & Anor, the deceased, the first
plaintiff’s husband, was killed in an accident which was found to have been negligently caused by
the defendant. The first plaintiff, as the spouse of the deceased, was granted RM10,000 for
bereavement under section 7(3A) read with section 7(3B)(a).

 In Hazimah Bt Muda & Anor v Ab. Rahim Bin Ab. Rahman & Anor, the court held that
RM10,000 bereavement award was to be shared equitably between two wives recognized under
customary law. The principle in this case is that bereavement is for the spouse, and if there is more
than one spouse recognised by the personal or the customary law, it should be shared equitably.
FUNERAL EXPENSES
S. 7(3)(ii) of the CLA stated that 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. 如果死者
的丧葬费是由提起诉讼的一方当事人承担的，则可以判给其丧葬费
  (*not on CLA) In Schneider v Eisovitch, the plaintiff and her husband were holidaying in France
when, due to the defendant's negligent driving, the plaintiff's husband was killed. There is a need to
arrange to transport her husband's body there. The plaintiff considered that she was under a moral
duty to pay, and undertook to pay out of any damages that she recovered, the expenses incurred by
her brother-in-law and his wife. The court granted the expenses incurred to transport the deceased
body as a special damage.
DEPRIVATION OF SERVICE
S. 7(3)(iii) of the CLA stated that 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. 活着的人不能仅以没有了孩子 or 老婆的
服侍 or 陪伴而 make claims

ESTATE CLAIMS
S. 8(1) of the CLA stated that any person on death, 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. A claim brought by a
representative of the deceased’s estate for a personal injury claim that they would have been entitled to if
they are still alive.
S. 8(5) of the CLA stated that the rights conferred by this section for the benefit of the estate of deceased
persons shall be in addition to and not in derogation of any rights conferred on the dependents of deceased
persons by section 7 and so much of this section as relates to causes of action against the estates of deceased
persons shall apply in relation to causes of action under the said section as it applies in relation to other
causes of action not expressly excepted from the operation of subsection (1).
S. 8(2)(?) of the CLA stated that 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…
(a) shall not include any exemplary damages, any damages for bereavement made under subsection 7(3a),
any damages for loss of expectation of life and any damages for loss of earnings in respect of any period
after that person’s death;
(b) in the case of a breach of promise to marry shall be limited to such damage, if any, to the estate of that
person as flows from the breach of promise to marry; and
(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.
 [S. 8(2)(a)] In Goh Chai Huat v Lee Mui Ping, the claim for loss of earnings is disallowed. The
court held that, where a cause of action survives for the benefit of the estate of the deceased person,
the damage recoverable foe the benefit of the estate of that person shall not include exemplary
damages, any damages for bereavement, damages for loss of expectation of life and any damages for
any loss of earnings for any period after that person’s death.

Since there is no relevant case in regards to this situation after the amendment of civil law act, hence, the
case will be referring here is following the principle before the amendment.
BEFORE CIVIL LAW (AMENDMENT) ACT 2019
LOST OF SUPPORT
Who may claim?
S. 7(2) of the CLA states dependants to include husband, wife, parent, child of the deceased.
 Wife
 Husband
 Parent
 Child

Deceased had attained the age 55 years old

S 7(3)(iv)(a)(i) of the CLA provides that to establish a claim for loss of future earnings, it must be shown
that (the deceased was aged below 55 at the time of accident.)
• Case: JENNIFER ANN HARPER V TIMOTHY THESEIRA [2009] 2 CLJ 499 HC
• The deceased age is 68 years old at the time of death, thus the claim for loss of support was
precluded by virtue of Section 7(3)(iv)(a)
Deceased must be in good health
S 7(3)(iv)(a)(ii) of the CLA it must be proved that or admitted that the deceased was in good health but for
the injury that caused his death.
 In Tan bin Hairuddin v Bayeh a/l Belalat, the plaintiff had attained the age of 59 years at the time
of his injury. It was held that he was not entitled to both pre-trial and post-trial loss of earnings, even
though he could prove such loss of earnings.
 In Osman Effendi v Mohd Noh, KN Segara J, after referring to the requirement of good health in
the new section, said that there was always a presumption that the plaintiff was in good health before
the injury and that the requirement of good health before the injury was fulfilled when there was no
challenge by the defendant either specifically in his pleadings or in his cross-examination of the
plaintiff.
 In Loh Hee Thuan v Mohd Zani bin Abdullah, although there was evidence before the court that
the injured plaintiff had a history of diabetes mellitus also an old infarct in the right basal ganglia of
the brain. The High Court find that the plaintiff was leading a normal life before the accident. The
various doctors' evidence showed that the plaintiff's diabetes was well under control. 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 labour or other gainful activity before he was injured" is sufficient in my view to
satisfy the requirement of proof as stated in s. 28A(2)(c)(i) of the Act.
Multiplier
S 7(3)(iv)(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.
• Age 31 -54: 55 – (deceased age at the time of death) / 2
BEREAVEMENT
S 7(3A) of the CLA provides that 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 ringgits.
Who can claim?
S 7(3A) of the CLA provides that 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 7(3C) of the CLA Where there is a claim for damages under subsection (3B)(b) for the benefit of the
parents of the person deceased, the sum awarded shall be divided equally between them subject to any
deduction likely to be made in respect of all costs and expenses including cost not recovered from the
defendant.

If essays, need to identify the differences between the S.7 of S.28A of CLA
- Compare multiplicand and multiplier between two sections.

Generally, S 7 of CLA is provided for the person who had died while S 28A of CLA is provided for
the person who sustained injuries. For multiplicands, S 28A of CLA had excluded the personal injury occurs
under any contract and any injuries which is payable under SOCSO to be claimable under this section.
Besides, if one injury due to loss of expectation of life is also cannot be claim under this section. Moreover,
it also mentioned that any pension, gratuity or charity which will be paid as a result of the personal injury
cannot be deducted. In other words, these expenses resulted from personal injury can be claimable under this
section. This section also provided damages for one who suffered pain and loss of amenities caused by the
injury. All of this rule is only provided under S28 of CLA as it only relevant to injury, but not to death. It
must also be noted that S 7 of CLA had included claim of bereavement, funeral expenses and deprivation of
service but not under S 28A of CLA as all of these situation is only arising if someone death.

Then, in regards to loss of earning, the person who may claim under S 7 of CLA is the dependency
or survivors of the deceased such as the spouse, children or parents who had been affecting mostly due to the
death of the deceased. While under S 28 of CLA, the person who will claim is most likely the injured party
himself as he was the one who being affected due to the injuries his suffered where he is forced to stop
working and does not have any income. However, it must be noted that both S 7 and S 28 of CLA has
provided the same maximum aged for the claimant to be entitled to claim the damage which is 60 years old.
Besides, only the injured party or the deceased who are working in fact if they didn’t suffer misfortune can
be claim for loss of earning under both of this section.

Further, both S7 of CLA and S28 of CLA had provided that no increase in prospective earnings can
be claim where the claimant can only claim for the loss of the amount the party which earnings at the time
they injured or died. Moreover, both of the section also required the living expenses to be diminutive from
the annual earnings before calculating the amount of damages which can be claim by the claimant under
these section. However, it must be noted that the case of Chan Chin Ming had introduced “One-Third
Deduction Rule’ under S7 of CLA where 1/3 of the amount that can be claim should be deducted.

In regards to the multiplier, as mentioned above, both S7 of CLA and S 28 of CLA has the same
maximum aged for the claimant to be entitled to claim the damage which is 60 years old. Hence, the
calculation under both section is similar where for the person who aged between 31 to 60 will be 60 minus
the age of the person who injure or dies and dividing the remainder by 2 . Then, for the person who was at
the aged of 30 or below at the time when that person injured or died will be 16. The only difference could be
seen for multiplier is S 28 of CLA mentioned the aged of the person who need to be minus is “at the time
when he was injured” while S 7 of CLA mentioned “at the time for one was died.”