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PERSONAL INJURY CLAIMS
- There must be a duty of care, which refers to the legal and
moral obligation to act in a reasonable and responsible
manner to avoid causing harm or injury to others
- When the person fails to meet the expected standard of
care, he has breached that duty of care, which allows the
injured party to be entitled to compensation for the damages
they have suffered.
- Damages in personal injury claims are also classified under
general and special damages.
- General damages - a sum of money granted by the court
as monetary compensation for harms that cannot be
quantified in terms of a specific monetary value.
- Special damages - the plaintiff’s actual pecuniary loss
incurred between the date of accident until the date of the
trial, which is the pre-trial expenses that is capable of
precise and exact quantification.
- The interest rate for special damages is 4% per annum on
damages awarded from the date of accident to the date of
trial while for general damages, it is awarded on loss at 8%
per annum from date of service of writ to date of judgement.
- GENERAL DAMAGES
- This type of damage is typically divided into two categories,
namely, pain and suffering and loss of amenities.
- Pain and suffering (Sec 28A(2)(b))
- Pain - physical pain caused by or due to injury
- Suffering - mental element of anxiety, fear, embarrassment,
depression, etc
- Must refer to the Bar Council’s Compendium as guideline
Lim Poh Choo v Camden and Islington Area Health
Authority
- Plaintiff suffered a heart attack and is in a coma. However,
the court rejected the claim for pain and suffering as he
must be conscious and aware of his condition
- Loss of amenities
- Damages are awarded for the deprivation of the plaintiff’s
normal enjoyment of life regardless of whether Plaintiff is
aware of it or not.
Ichard v Frangoulus
- Plaintiff was compensated for loss/impairment of the
enjoyment of a holiday as a result of personal injuries
Saniah v Abdul Hamid
- Plaintiff suffered loss of marriage prospects.The incident
happened when she was 19 years old and due to the
accident, her leg shortened by 1 inch and got scar on her
jaw and left side of the face.
- SPECIAL DAMAGES
- The plaintiff may only claim for necessary and reasonable
expenses incurred between the two periods.
- Medical expenses
➔ Traditional treatment
Seah Yit Chen v Singapore Bus Co. Ltd
- Whether it was reasonable for the plaintiff to seek such
traditional treatment and incur the expenses, there should
be evidence from the plaintiff that the traditional treatment
was undergone on reliable advice, with a reasonable
expectation of benefit
➔ Treatment in private hospital
- GR: the plaintiff can claim for treatment undergone in a
private hospital provided it is reasonable for him to do so.
- 3 requirements to show necessity:
Chai Yee Chong v Lew Thai
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1. there was not any treatment accessible in the
government hospital due to a lack of the essential
instruments, qualified medical personnel, or other
compelling factors.
2. despite the fact that the treatment was available at the
government hospital, it was not available in a
reasonable period given the urgency of the situation
3. The treatment at the government hospital was, despite
being available, severely insufficient.
- If the court is not satisfied that the plaintiff was justified in
seeking treatment at a private hospital, the court should
either dismiss the claim or award:
1/3 x hospital expenses
➔ Treatment in government hospital
Chai Yee Chong v Lew Thai
- The court emphasised that if treatment is sought at a
government hospital, the amount expended and paid by the
person should be awarded in full.
➔ Treatment in overseas
- The basis for awarding expenses for overseas treatment is
whether the medical expenses had been reasonably
incurred for the medical treatment.
Dharam Singh v Ibrahim Shaaban
- P went to the USA to seek treatment, the court refused the
claim for expenses and airfares as at the material time since
similar operations were available locally
➔ Medical bill paid by others
Lim Kiat Boon v Lim Seu Kong
- There should be no reduction where the money is given
gratuitously or advanced by a sympathetic employer. Here,
there was an undertaking statement that if P succeed in
getting the claim, he would return the money to the
employer
➔ Medical bill paid by insurance
Sin Hock Soon Transport Sdn Bhd
- In the assessment of damages, insurance is non-deductible.
- Sec 28A(1)(a) CLA - medical expenses, though paid for
under the plaintiff’s insurance, can be claimed
- Extra nourishing food
Yeap Cheng Hock v Kajima-Taisei Joint Venture
- In the absence of medical evidence that they were
necessary in the light of hospital food and nourishment
provided, court would be reluctant to allow such claim
- Travel expenses
Wong Kong v Yee Hup
- Since it was necessary for the wife to be there at the
hospital to help the nurses to take care of plaintiff, the Court
allowed the claim considering the psychological effect to the
plaintiff
- Vehicular damage
Darbishire v Warren
- Only allowed if in the circumstances it is reasonable for the
plaintiff to effect repair by mitigating the damage
Performance Cars v Abraham
- The cost of repairs on damage which already existed at time
of accident is not recoverable
- Loss of personal belongings
Parvathy v Liew Yoke Khoon
- An Indian woman, who, as a result of an accident, was
injured and her husband killed while on the way to a
wedding, was allowed to recover for loss of jewellery and
other items stolen from her at the scene of the accident.
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- Nursing care
Liong Thoo v Sawiyah
- Court decided that RM 200 per month shall be awarded to
the caregiver, which is plaintiff’s mother in law for taking
care of her
Lim Poh Choo v Islington Area Health Authority,
- The court may award cost for the care at a private
institution, but must ensure that there are special
circumstances to make it reasonable for the plaintiff
- Multiplicand = cost of care x 12 months
- Multiplier =
base age - age at time of accident = 𝑥 - (⅓ x 𝑥)
- Prosthesis
Azman Kasri v Md. Isa Endut
- The court awarded compensation for the cost of fitting
artificial limbs as well as for travelling expenses for servicing
of artificial limbs.
Multiplier x price of item / lifespan
- Miscellaneous claims
1. Cost of training and education of the caregiver
Inas Faiqah binti Mohd Helmi v Kerajaan Malaysia
- Although the plaintiff’s mother is a kindergarten teacher, the
Federal Court held that a kindergarten teacher is not well
trained to take care of a child with special needs, thus the
court awarded a sum for training and education to take care
of her child.
2. Disposable diapers
Inas Faiqah binti Mohd Helmi v Kerajaan Malaysia
- Court allowed the claim for disposable diapers for the daily
use of the child.
(Cost of item x 12 months) x Multiplier
- Loss of Earnings
- Include wages, salary, allowances, EPF, profits, overtime,
part-time
- Exclude living expenses and income tax.
Marappan v Siti Rahmah (definition of earnings)
- Allowance, even if it was incidental to earnings, falls within
the definition of earnings as a teacher undergoing training
could be considered to be engaged in gainful activity
- Earnings from the date of accident until date of trial
- Only if Plaintiff can work after discharged from hospital, if
not loss of future earnings
- Pre-trial loss:
months of not working x net income per month
➔ Loss of future earnings (Sec 28A(2)(c) CLA)
- Plaintiff works before accident and as a result he lost job
and cannot work anymore
- Sec 28A(2)(c)(i) - 2 factors in assessing damages:
1. Age limit – below 60 at the time of accident
Tan Bin Hairuddin
- cannot claim once reached the retirement age
2. Receiving earnings before injury by his own
labour/gainful activity
Dirkje Pieternella Halma
- The plaintiff did not qualify for any award of damages for
loss of future earnings at that point of time when she was
not receiving any earnings.
Chua Kim Suan v Government of Malaysia
- Earnings obtained illegally, such as through the illegal
operation of a taxi, are not admissible.
3. In good health before accident (before amendment)
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Loh Hee Thuan
- It is not necessary for the plaintiff to prove good health by
tendering a medical report, it is sufficient to show that the
plaintiff was able to lead a normal life before the accident
- Sec 28A(2)(c)(ii) - prospective earning is not considerable
Marappan v Siti Rahmah
- Although the court considered the plaintiff’s training
allowance as earnings, the prospect of her earnings being
increased as a future trained teacher was ignored.
- Sec 28A(2)(c)(iii) - living expenses shall be deducted from
the amount awarded.
Tey Chan v South East Asia Insurance Bhd
- Living expenses is the out of pocket expenses or amount he
spent exclusively on himself.
- Assessment (Sec 28A(2)(d))
- Multiplier - 16 or (60 - actual age)/2
- Multiplicand -
(income - income tax - living expenses) x 12 months
➔ Loss of earning capacity
- Plaintiff may claim such amount if he is able to work after
the accident but is not earning as much as before the
accident or receives less chances to work
Azizi Amran v Hizzam Che Hassan
- As a result of his accident, there was medical evidence that
the plaintiff will likely suffer from a worse condition of the
joint with more pain and stiffness. Thus, as it will be more
difficult for him to get a similar job or one with the same
salary, the court awarded on the claim for loss of earning
capacity.
Tan Kim Chuan v Chandu Nair
- A minor is not entitled to a claim for loss of earning capacity.
- Assessment:
(Previous income - current income x 12 months) x
Multiplier
FATAL ACCIDENT CLAIMS
- Damages awarded as compensation for claims in respect of
death.
➔ Dependency claim
- Sec 7 CLA - A claim for loss of support suffered by the
dependents of the deceased as a result of the death of the
latter caused by the negligence of the wrongdoer.
- Sec 7(5) CLA - brought within three years after the death of
the deceased person
- Pre-requisites:
1. Claimants must be qualified dependants
(sec 7(2) + sec 7(11))
- ‘Dependant’: Wife, husband, parent, and child and any
person with disabilities under the care of the person whose
death has been caused and shall be brought by and in the
name of the executor of the deceased. (includes illegitimate
child)
Zulkifli Ayob v Velasini Madhavan (adopted child)
- The Court said that only legally adopted children qualify as
dependents, and there must be evidence to show that the
child was the legally adopted child of the deceased.
James anak Jack v Ting Kuak Hua (above 18 years old)
- The High Court held that a child above the age of 18 years
qualifies to be a dependent provided that he suffers financial
loss as a result of the death of the deceased.
Chan Chin Ming v Lim Yok Eng (siblings)
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- persons entitled to claim for loss of support do not include
siblings
Payne-Collins v Taylor Woodrow Construction (divorced
wife)
- A divorced wife is not a dependent, but a wife who deserted
the husband prior to his death can only make a dependency
claim if she shows a significant prospect of reconciliation.
Chong Sin Sen v Janako Chellamuthu (wife under
customary marriage)
- A plaintiff, having undergone a customary marriage with the
deceased and not having solemnised or registered the
marriage under the LRA, is still a ‘wife’ within the definition
of Sec 7(2)
Esah Ishak v Kerajaan Malaysia (grandparents)
- The Court decided that grandparents fall within the definition
of Section 7(2) and are dependents as specified under
Section 7(11).
- Persons with disabilities under the care of the deceased
- Sec 2 of Persons with Disabilities Act - long term
physical, mental, intellectual or sensory impairments with
various barriers which may hinder their full and effective
participation in society
2. Dependants have suffered loss in result of the death
- Support means a source of means of living, subsistence,
sustenance and maintenance
- The amount for loss of support is the amount the deceased
gave to the dependants during his lifetime
- Plaintiff must receive direct benefit from the deceased’s
support but need not prove he totally depend on it on daily
basis
Chan Chin Ming
- It was proved that 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 deceased’s sister who
was not a dependent under the Act.
Balakrishnan Sinnappan v Mariammah Ganapragasm
- The High Court reduced the multiplicand awarded as the
deceased’s business was still continuing to produce income
and the widow and children were receiving income from the
business.
3. The loss which he suffered is directly connected to a
family relationship
- If the loss is due to a contractual relationship, it cannot be
claimed.
Burgess v Florence Nightingale Hospital
- The husband and wife were professional dancing partners
and the wife died due to the negligence of a surgeon. Held:
Where the benefit must be a benefit arising from their
relationship as husband and wife, the court allowed the
claim for the deceased wife’s contribution to the joint living
expenses, but rejected the claim for loss of services of the
wife as a dancing partner.
- LOSS OF SUPPORT
- Sec 7(3)(iv)(a) - three requirements:
1. The deceased was aged below 60 at the time of the
accident
Jennifer Anne Harper v Timothy Theseira
- The court rejected the claim for loss of support as the
deceased was, at the time of the accident, 68 years old.
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2. The deceased was in good health, but for the injury that
caused his death (prior to amendment, now not
applicable)
Loh Hee Thuan v Mohd Zani Abdullah
- It is not necessary for a person’s entire medical record to be
admitted in order to prove ‘good health’. It is sufficient to
prove that he was able to lead a normal life before the
accident.
3. The deceased must have been receiving earnings prior
to his death
Dirkje Pieternella Halma
- If the deceased was on a no-pay leave, or temporarily laid
off at the time of the accident, the court would regard him as
not having any earnings and his dependents will not be
entitled to loss of support.
Chua Kim Suan
- The earnings in question must be legal.
- Sec 7(3)(iv)(b) - prospective earnings not taken into account
- Sec 7(3)(iv)(c) - minus living expenses
Saw Hau Huat v Mohd Nor Taya
- Living expenses include the cost of food, cost of a
deceased’s car petrol and its upkeep, and his entertainment
and sundry expenses, but not the deceased’s contribution to
his dependents.
- Assessment (Multiplicand x Multiplier)
- Multiplicand:
monthly contribution to dependant x 12 months
- Multiplier:
(60 - age at time of death) - (⅓ x ans) [above 30]
16 - (⅓ x 16) [30 and below]
- BEREAVEMENT
- Sec 7(3A) - amount may be claimed is RM30,000
Noor Famiza Zabri v Awang Muda
- Where the plaintiff’s husband was killed in a road accident,
the court allowed her claim for bereavement at a fixed
amount of RM10,000 (prior to amendment) without any
interest
- Sec 7(3B) - persons entitled to claim:
1. Spouse
2. Children
3. Parents of the deceased who was a minor at the time of
death and not married
Hooi Seong v Ooi Pay Yeong
- It must be proved on the marital status of the deceased to
allow such a claim. The parents of a married minor may not
claim, only his widow can
- Sec 7(3C) - sum awarded shall be divided equally
Hazimah Muda v Ab. Rahim
- If there is more than one spouse recognized under
customary law, the damages for bereavement should be
shared equally.
- FUNERAL EXPENSES
- Sec 7(3)(ii) - damages for funeral expenses may be
awarded if such expenses have been incurred by the party
Tan Ah Hong v Mahalingam (general rule)
- A claim cannot be made unless such expenses were
actually incurred by the plaintiff even if paid by others.
- But the parties must undertake to pay for the amount
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- Employer who pay out of generosity is not claimable
Johnson v Baker
- Claim for mourning and memorial stone is not claimable as
funeral expenses
Schneider v Eisovitch
- Plaintiff must show that the services rendered are necessary
as a consequence of the tort. Here, expenses incurred to
transport the body is claimable
Pang Ah Chee
- Status and station in life of deceased is taken into
consideration in determining a fair and reasonable figure as
funeral expenses
➔ Estate claims
- A claim made by the executors or administrator of the
deceased for the benefit of the estate.
- An estate claim can be made in instances where the
deceased did not suffer an immediate death, but instead
suffered injuries and died much later.
- It is a claim made for loss suffered between the date of the
accident and the date of the death.
- Sec 8 - claims to be made on behalf of the deceased’s
estate:
- Sec 8(3)(b) - limitation period is 6 months from date of LA
- General damages for pain and suffering prior to death:
- Such a claim can be made where there is a lapse of time
between the accident and the death, during which the
deceased was not totally unconscious, as long as there is
awareness of that pain and suffering.
- Refer to bar council compendium as guideline
Thangavelu v Chia Kok Bin
- Although the deceased was in a state of coma after the
accident, he was not totally unconscious until he died. Thus,
there was an element of pain and suffering and the court
awarded a sum of $20,000 for pain and suffering and loss of
amenities.
- Special damages (sec 8(2)(c))
Tan Ah Hong v Mahalingam
- For funeral expenses if incurred by the estate
- For the cost of extraction of letters of administration
- For medical expenses, damage to vehicle and personal
possession, and transport expenses
- No claim for future earnings and earning capacity
- Merger of claims
Thangavelu v Chia Kok Bin
- The award under the dependants’ claim will be reduced or
extinguished by the estate claim to prevent double recovery.
- Where there is no duplication of damages between the
dependency claim and the estate claim, both claims can be
filed jointly or independently by the executor/administrator
on behalf of the estate.