QUESTION 2

Damages : Death &

Fatal Accident Claims
Name : Tesyia Naveen
Matric No : 2115124
Question 2
Zuna, 45, a school teacher was kidnapped and was missing for 6 months.
On receiving information about a possible homicide, police went to the said
apartment and found Zuna dead in a pool of blood. The post mortem revealed
that the cause of death was blunt force trauma and severe dehydration. She
had suffered at the hands of the kidnapper. Even her car was found damaged
beyond recognition at the apartment parking.
Zuna is survived by her old mother and one adopted child, Miki who was 20 years
old. She used to love Miki and provided for her every need as she was still a
university student. When she was alive, Zuna had been coaching Miki’s studies as
well as cooked and cleaned the house. Zuna used to earn RM7,000 a month as a
senior teacher. In fact, she was one of the two candidates who had been selected
for the post of Principal. If she had secured the post, she would have been earning
RM10,000 in the following month.

As her mother was very old, Zuna used to take special care and cooked
special food for her. Now, Miki has to engage a caretaker for RM1,000.00 a
month to look after her grandmother when she goes to the University. Zuna
used to give Miki a monthly allowance of RM500. Groceries for the household
would come up to RM 600 a month.

The only thing Zuna spent for herself was a monthly spa at her friend’s shop
costing her RM 300 a month. Zuna’s petrol expenses cost RM 500 and she
used to enjoy snacks at school amounting to RM200 a month. She also made
sure she donated RM500 towards a special fund for needy students every
month. Miki had also received RM 100,000 from her mother’s insurance
company.
 Advise Miki on her claim for general and special damages with reference to decided
cases and the Civil Law Act 1956. As Miki requested for exemplary damages as well,
discuss whether this type of damages can be awarded in her situation.

Dependency claim Estate claim Claim for

Section 7 of the Civil Section 8 of the Civil exemplary
Law Act 1956 Law Act 1956 damages

What are damages?

Monetary compensation or sum of money given to the plaintiff to
compensate for the loss or harm suffered due to an act caused by the
defendant.
Damages account for past, present and future losses.

The "losses" incurred may be pecuniary or non-pecuniary.

Pecuniary loss is tangible and is measurable whereas Non-Pecuniary
losses are intangible and subjective and is not measurable in figures.
 Restitutio in integrum

It is a characteristic or nature of damages

The primary function of Damages is to be assessed on a compensatory
damages in tort actions is
to put the plaintiff in the basis – to restore the plaintiff to his pre-accident
position which he would position
have been in had the tort
not been committed, in so
far as money can do so.
What are the types of damages?
1. Nominal Damages
2. Contemptuous Damages
3. Exemplary Damages
4. Aggravated Damages
5. Special and General Damages
discussed under "personal injury claims" (section 28 CLA 1956)
"fatal accidents/death claim" (section 7 & section 8 of CLA 1956)
 What is the difference between Special
Damages and General Damages?

Special Damages General Damages

Both Pecuniary (quantifiable) &
Non-Pecuniary (non-quantifiable).
Quantifiable, Pecuniary Loss
Eg. Pecuniary = loss of future
Must be specifically pleaded
earnings, loss of earning capacity
and substantiated with evidence
(s.7, loss of financial support).
Eg. Non-pecuniary = damages for
pain and suffering, loss of
amenities

Need not be specifically pleaded

in amount by the plaintiff.
 Dependency Claim (s.7)
Issues:
1. Whether Zuna's mother and Miki are dependents of Zuna within the meaning of Section 7
of the Civil Law Act 1956?

2. Whether Zuna’s mother and Miki, being dependents of Zuna, may claim for special
damages under section 7 of the Civil Law Act 1956?
Whether they may claim for funeral expenses if they as dependents did incur such
expenses?
Whether they may claim for any nursing expenses incurred by them as dependents?
Whether they may claim for any medical expenses incurred by them as dependents?
Whether they may claim any reasonable expenses incurred ?
 Dependency Claim (s.7)
Issues:
3. Whether Zuna's mother and Miki, being dependents of Zuna, may claim for general
damages under section 7 of the Civil Law Act 1956?
Whether they may claim for bereavement ?
Whether they may claim for loss of financial support ?
Issues 1 : Whether Zuna's mother and Miki are dependents of Zuna
within the meaning of Section 7 of the Civil Law Act 1956?

Definition :
"Dependents"
A dependent is a person who relies on another as a primary source of income and it
generally includes a spouse, children and parents.
Issues 1 : Whether Zuna's mother and Miki are dependents of Zuna
within the meaning of Section 7 of the Civil Law Act 1956?

Rules :
Section 7(2) of the Civil Law Act 1956

: Every such action shall be for the benefit of the wife, husband, parent, child and any person
with disabilities under the care, 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.

Section 7(11) of the Civil Law Act 1956

: "child" includes son, daughter, grandson, granddaughter, stepson and stepdaughter”
: "parent" includes father, mother, grandfather and grandmother
“Provided that in deducing any relationship referred to in this subsection 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 legitimate offspring of his mother
and reputed father or, as the case may be, of his adopters.”
Cases
Zulkifli bin Ayob v
Velasini a/p K Madhavan & Anor (2000) Chan Chin Ming v Lim Yok Eng (1994)

Abdul Kadir Sulaiman J held that an adopted Mother of the deceased claimed for damages of
child is not a dependant unless the child is a loss of support as she received RM750 from her
legally adopted child as otherwise a number deceased, unmarried son prior to his death. She
of them could be brought into the family and spent half of the money i.e. RM375 for herself
thereby becoming dependants of the and the rest was used for the benefit of three
deceased incurring a liability on a tortfeasor other siblings of the deceased.
in assessing damages in respect of a
It was held that siblings of the deceased do not
dependency claim.
fall under the category of dependents under
section 7 of the CLA 1956.
However, it was affirmed that the mother of
the deceased did thus she could only claim
RM375 for loss of support.
Application & Analysis
Miki
Applying the above provision of section 7(11) and its proviso, as Miki is an adopted child of
Zuna, she is considered a dependent of Zuna. This is affirmed also in the decision in the case of
Zulkifli bin Ayob v Velasini a/p K Madhavan & Anor (2000) where it was held that only a child
who is legally adopted will be considered an adopted child who then becomes the dependent
of the deceased. Hence, Miki will be considered a legitimate offspring of Zuna and thus falls
within the category of a dependent under Section 7 of the Civil Law Act 1956.
Zuna’s mother
Pursuant to the provision of Section 7(11) of the Civil Law Act 1956, as mentioned, the word
“mother” falls within the ambit of a parent who may claim for damages as a dependent under
this Act. As such, in the case of Chan Chin Ming v Lim Yok Eng (1994), where the mother of the
deceased claimed for damages of RM750, the court held she was only entitled to claim half the
sum (RM375) as this was the amount spent for herself as the other half was spent on the
deceased's siblings. The court held that siblings are not dependents of the deceased but the
mother of the deceased is. Hence, Zuna's mother is her dependent within the meaning of s.7 of
the CLA 1956.
Conclusion

Zuna's mother and Miki are both dependents of Zuna within the meaning of
Section 7 of the Civil Law Act 1956. Hence, they may pursue claims for damages
provided for under the "dependency claim" of this Act.
Issues 2 : Whether Zuna's mother and Miki, being dependents of Zuna,
may claim for special damages under section 7 of the CLA 1956?
sub-issue (i) : Whether they may claim for funeral expenses if they as
dependents did incur such expenses?

Rules :
Section 7(3)(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

Cases
Wong Ngoo Hing & Anor v Wong Choy (1999)
It was held that a plaintiff in a dependency claim cannot claim for funeral expenses unless such
expenses were actually incurred by the plaintiff themselves or if there is an undertaking by the
plaintiff that he would repay the people who paid for the funeral, if he succeeds in this claim for
funeral expenses.
Cases
Jub’il Mohd Taib v Sunway Lagoon Sdn Bhd [1994]

The plaintiff claimed RM2000 for funeral expenses incurred because he bore expenses for
burying the wife. He wanted to claim for the costs of flowers and travelling to the deceased's
grave but it could not be claimed because the flowers were placed by him on his own volition
as Muslim law did not make it obligatory to do.

Application & Analysis

It has not been mentioned whether there were any funeral expenses incurred. However, Miki
and her grandmother can only claim if they themselves incurred the expenses. The court will
determine if it is reasonable and consider the culture and traditions of the deceased.

Conclusion
If any, they may claim for funeral expenses if they themselves incurred the expenses.
Issues 2 : Whether Zuna's mother and Miki, being dependents of Zuna,
may claim for special damages under section 7 of the CLA 1956?
sub-issue (ii) : Whether they may claim for any nursing expenses incurred by
them as dependents?
Cases
Siti Rahmah bte Ibrahim v Marappan & Anor [1989]

The item for nursing care should not be less if the plaintiff is looked after at home and that
compensation can be given in money for the services rendered by parents. The Court awarded
rm350 per month for the cost of caring for plaintiff who became quadriplegic as a result of brain
injury.

Tan Ah Kau v Government of Malaysia [1997]

The court awarded RM350 for the wife who gave up her job as a washerwoman to take care
of her plaintiff husband.
Application & Analysis
It has not been expressly stated in the question but considering the fact that Zuna was
missing for 6 months and died almost instantly without returning home, it cannot be said she
had incurred expenses for nursing care. Therefore, Zuna's mother and Miki cannot claim for
nursing care as they didn't incur such expenses for Zuna.

Conclusion
Zuna's mother and Miki cannot claim for nursing care expenses.
Issues 2 : Whether Zuna's mother and Miki, being dependents of Zuna,
may claim for special damages under section 7 of the CLA 1956?
sub-issue (iii) : Whether they may claim for any medical expenses incurred by
them as dependents?
Cases
Chai Yee Chong v Lew Thai [2004]

In this case, three rules for claiming medical expenses incurred at private hospitals were
mentioned for future guidance on medical expenses claims.
Application & Analysis
It has not been expressly stated in the question but considering Zuna was missing for 6
months and had died almost instantly without returning home, they cannot claim for medical
expenses as they did not take her to seek medical treatment.

Conclusion
Zuna's mother and Miki cannot claim for medical expenses incurred for Zuna.
Issues 2 : Whether Zuna's mother and Miki, being dependents of Zuna,
may claim for special damages under section 7 of the CLA 1956?

sub-issue (iv) : Whether they may claim any reasonable expenses incurred ?

Rules :
Cost of services rendered by deceased (Zuna) to their family

Section 7(3)(iii)
no damages shall be awarded to a parent on the ground 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
Cases
Neo Kim Soon v Subramaniam a/l Ramanaidu & Anor [1996]

The deceased was a housewife and had thus earned no income.

The plaintiff alleged that by reason of his wife’s death, he had to employ and will hereafter
continue to have to employ and pay a housekeeper to look after their infant son.

The court held that the plaintiff was making the claim both for himself and his son and it was
not for the equivalent monetary value of the services of the deceased but the actual monetary
expense he had paid and will continue to pay the housekeepers. Section 7(3) provides not only
for compensation for ‘loss of support’ but also for ‘any reasonable expenses incurred as a
result of the wrongful act’.

Mahadev Shankar JCA allowed the husband’s claim and awarded a sum of RM250 a month for
a period of 11 ½ years from the date of accident.
Cases
Hum Peng Sin v Lim Lai Hoon & Anor [2001]

The deceased died at the age of 40 years as a result of a motor accident leaving behind
her husband and two young children. The plaintiff, the husband of the deceased,
brought a claim against the defendants for negligence and also claimed RM400 per
month for the cost of engaging a housekeeper to look after the children.

Gopal Sri Ram CJ stated that the claim was not for loss of services but was for the
cost of replacing the said services provided by the deceased.
Application & Analysis
In the present case, before her death, Zuna used to take special care and cooked food for her mother
who was very old. To replace this service of Zuna after her death, Miki had to incur additional expenses
of RM1000.00 a month to employ a caretaker to look after her grandmother when she went to
university. Referring to the precedent cases aforementioned, this may be claimed under reasonable
expenses incurred for the cost of replacing services previously provided by the deceased.

In addition, Miki, was also provided for by Zuna as she was still a university student. Zuna had coached
Miki with her studies, cooked as well as cleaned the house. These amount to the mere services of her
deceased mother, as there was no costs incurred after Zuna’s death to replace these services. Applying
what was held by Gopal Sri Ram CJ in the aforementioned case of Hum Peng Sin, the services rendered
to Miki by Zuna before her death is not claimable. However, it is reasonably expected that Miki would
still require a tutor to coach her with studies for the remaining years in university as well as someone
to help cook and clean the house (as this was not within the job scope of the housekeeper employed).
Therefore, despite not being stated in the question, it may be implied. Hence, if Miki does chose to hire
a tutor and housekeeper, a sum of approximately RM250 a month for a tutor and RM400 a month for a
housekeeper may be proposed. However, it is at the discretion of the court to later decide a reasonable
sum.
Calculation
COST OF SERVICES PREVIOUSLY PROVIDED BY DECEASED :
Total cost to replace services : RM 1,000 (cost of hiring a caretaker for Zuna's mother)

Hence,
= RM1,000 x 6 months (Date of accident - Date of death)
= RM6,000

COST OF SERVICES PREVIOUSLY PROVIDED BY DECEASED :

(that is if Miki does choose to hire a tutor and housekeeper)
Total cost to replace services : RM250 + RM400 (cost proposed to hire tutor and housekeeper)

Hence,
= (RM250 + RM400) x 6 months (Date of accident - Date of death)
= RM3,900

However, it is at the discretion of the court to decide on a reasonable sum later.

Conclusion

Miki can claim RM6000 under reasonable expenses for the cost of services
previously provided by the deceased to her grandmother.

Additionally, if she chooses to hire a tutor and housekeeper, which is reasonably

expected, she may claim a proposed sum of RM3,900 but this sum will be left to the
court to decide later.
Issues 3 : Whether Zuna's mother and Miki, being dependents of Zuna, may
claim for general damages under section 7 of the CLA 1956?
sub-issue (i) : Whether they may claim for bereavement ?

Rules :
Section 7(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 thirty
thousand ringgit.
Section 7(3D)
The Yang di-Pertuan Agong may from time to time by order published in the Gazette
vary the sum specified in subsection (3A)
Section 7(3B)
A claim for damages for bereavement shall only be for the benefit of--
(a) the spouse of the deceased person
(b) the child of the deceased person
(c) the parents of the deceased person
Cases

Jub’li Mohamed Taib Taral & Ors v Sunway Lagoon Sdn. Bhd (1994)

The first plaintiff, his wife and his two children went to the Sunway Lagoon
Theme Park . The defendant owned the said park. While the plaintiff and his
wife (‘the deceased’) were on the runaway train, his wife was flung out of the
train and fell to death.

The plaintiff claimed damages for himself and his two infant children under
s. 7 of the Civil Law Act 1956 together with special damages against the
defendant. The court awarded RM10,000 for bereavement and RM2000 for
funeral expenses.
Application & Analysis
Zuna's mother and Miki (parent and child of the deceased respectively) fall within the category
of people who may claim for damages for bereavement under Section 7(3B) of the Civil Law Act
1956. In the case Jub’li Mohamed Taib Taral & Ors v Sunway Lagoon Sdn. Bhd (1994) the plaintiff,
spouse of the deceased, was awarded RM10,000 for bereavement (before the amendment of
Section 7(3A). Hence, pursuant to the amended Section 7(3A), Zuna's mother and Miki may claim
a sum of RM30,000 for bereavement.

Conclusion
Zuna's mother and Miki may claim damages for bereavment amounting to RM30,000.
Issues 3 : Whether Zuna's mother and Miki, being dependents of Zuna, may
claim for general damages under section 7 of the CLA 1956?
sub-issue (ii) : Whether they may claim for loss of financial support ?

Rules :
Section 7(3)(iv)(d)

(....) 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 -

take into account that (.....) 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.
 Formula to calculate loss
of financial support (LOFS)

LOFS = Multiplicand x Multiplier

where :
Multiplicand = [amount of financial support (per month) x 12]
Multiplier = (i) age of deceased < 30 years : 16
OR
(ii) age of deceased > 30 (31-59 years)
: [60 - (age at the time of death)] ÷ 2
Cases
Noraini Omar & Anor v
Chan Chin Ming v
Rohani Said [2006]
Lim Yoke Eng [1994]
Court agreed with the
The Supreme Court did not Ibrahim Ismail v Hasnah decision in Ibrahim Ismail - no
follow the statutory formula for Puteh Imat [2004] deduction ought to be made
multiplier as deceased Majority decision in Chan Chin on account of contingencies,
unmarried, if married later may Ming wrong, multiplier according other vicissitudes of life and
not give support, so multiplier to formula and cannot be reduced accelerated payment as was
reduced from 16 to 7. as regard fatal accident and the practice under the
personal injury claims, this court, common law.
as the apex court involving such
claims, at the present moment, is
at liberty to depart from the
decision of the Supreme Court if
the court thinks that the decision
of the Supreme Court was wrong.
Application & Analysis
In the present case, Zuna financially provided for both Miki and her mother. Among
the financial support provided was Zuna used to give Miki a monthly allowance of
RM500. She also bought groceries for the household for about RM600 a month.
Considering there are 3 of them as occupants of the household, the groceries are
provided for all 3 of them. Hence, it must be divided by 3 whereby the financial
support here is rm200 for Miki and Zuna's mother respectively.

Applying the formula for loss of financial support provided under section 7(3)(iv)(d) of
the Civil Law Act 1956 aforementioned, since at the time of her death Zuna was 45
years old, which is between the ages of 31 and 59 years, the formula to calculate
"multiplier" is thus as shown below.
Calculation
Multiplier:
[60 - (age at the time of death)] ÷ 2
= [ 60 - (45)] ÷ 2
= 15 ÷ 2
= 7.5

LOSS OF FINANCIAL SUPPORT LOSS OF FINANCIAL SUPPORT

Miki : Zuna's mother :
Multiplicand X Multiplier Multiplicand X Multiplier
= [(500 + 200) X 12] X 7.5 = [200 X 12] X 7.5
= RM 63,000 = RM 18,000
Conclusion

Miki may claim for herself RM63,000 and her grandmother (Zuna's mother)
RM18,000 for damages for loss of financial support.
Main Conclusion for the Depency Claim under Section 7 of the CLA 1956

In conclusion, Zuna's mother and Miki are both dependents of Zuna within the meaning of
Section 7 of the CLA 1956 and hence, they may pursue claims for damages provided under
the "dependency claim" of this Act. For the special damages claims under the dependency
claim of Section 7, as there is no express indication of these matters, Zuna’s mother and
Miki may claim for funeral expenses if there is any and if they themselves incurred the
expenses but they may fail in a claim for nursing care expenses and medical expenses as
they did not incur such expenses for Zuna. They will however, succeed in a claim for
reasonable expenses that is RM6000 for cost of services previously provided by the
deceased to Zuna’s mother and if Miki chooses to hire a tutor and housekeeper, she may
propose a sum of RM3,900 but this is left to the discretion of the court. Under general
damages, Zuna's mother and Miki may claim RM30,000 for bereavement as well as damages
for loss of financial support that is RM63,000 for Miki and RM18,000 for Zuna’s mother.
 Estate Claim (s.8)
Issues (1) :
Whether on behalf of the deceased, special damages may be claimed under Section 8 of the
Civil Law Act 1956?

Whether the deceased may claim for loss of earnings?

Whether the deceased may claim for any funeral expenses incurred?
Whether the deceased may claim for medical and nursing care?
Whether the deceased may claim for out of pocket expenses such as transportation costs?
Whether the deceased may claim for damage to vehicle?
 Estate Claim (s.8)
Issues (2) :
Whether on behalf of the deceased, general damages may be claimed under Section 8
of the Civil Law Act 1956?

Whether the deceased may claim damages for pain and suffering?
Whether the deceased may claim for loss of amenities?
Whether the deceased may claim other general damages such as the loss of
expectation of life and loss of future earnings for the "lost years"?
Issues 1 : Whether on behalf of the deceased, special damages may be
claimed under Section 8 of the Civil Law Act 1956?
sub-issue (i) : Whether the deceased may claim for loss of earnings?

Rules :
Section 8(2)(a)

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 shall not include
(.....) any damages for loss of earnings in respect of any period after that person's death
 Formula to calculate
loss of earnings (LOE)

LOE = Net earnings x (Date of accident - Date of death)

Cases
Chua Kim Suan & Teoh Teik Nam v
Lee Seng Kee v Sukatno & Anor [2014]
Govt of Malaysia [1994]

The Court shall exclude illegal sources of

The plaintiff failed to establish on a balance of
income in calculating an award of damages
probabilities that he had a valid job after
on the ground that it is against public policy.
evidence surfaced showing he was working
The deceased had several sources of income
including rm1500 per month for running an
illegally in the country at the time.
unlicensed taxi which should be excluded.

Dirkje Peiternella Halma v Mohd Noor b Baharom [1991]

The court mentioned that one must exclude any claim by the dependants of a deceased
who was on no-pay leave or who had just resigned from a job and was just taking a few
days off before starting off in his new job at the time of his death.
Application & Calculations
In the present case, Zuna is a senior school teacher. This means she had a legal source of
income at the time of her death, allowing for her full salary of RM7,000 a month to be
accounted for a claim for loss of earnings. When she was alive, the only things Zuna spent for
herself was a monthly spa at her friend’s shop costing her RM 300 a month besides enjoying
snacks at school which amounted to RM200 a month. Her monthly groceries for the household
would amount to RM600 a month whereas her petrol expenses cost RM 500. As Zuna was
missing for 6 months before she was found dead, the duration of time between her date of
accident and date of death is 6 months.

Applying the formula for Loss of Earnings :

= Net earnings X (Date of accident - Date of death)
= (RM 7000 - living expenses) X (6 months)
= (RM 7000 - RM300 - RM200 - RM600 - RM500) X 6
= RM 32, 400
Conclusion

Thus, Miki may claim RM32, 400 for loss of earnings on behalf of her deceased
mother, Zuna.
Issues 1 : Whether on behalf of the deceased, special damages may be
claimed under Section 8 of the Civil Law Act 1956?
sub-issue (ii) : Whether the deceased may claim for any funeral expenses
incurred?

Rules :
Section 8(2)(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.

Cases:
Jub’il Mohd Taib v Sunway Lagoon Sdn Bhd [1994]

The plaintiff claimed RM2000 for funeral expenses incurred because he bore expenses for
burying the wife. He wanted to claim for the costs of flowers and travelling to the deceased's
grave but it could not be claimed because the flowers were placed by him on his own volition as
Muslim law did not make it obligatory to do.
Application & Analysis
It has not been mentioned whether there were any funeral expenses incurred. However, if
there was any, there may be a claim for funeral expenses on behalf of the plaintiff which
would be decided based on the costs of preparations for the funeral according to the
culture and traditions of the deceased ie. Zuna.

Conclusion
If there are any, Miki can claim on behalf of Zuna for the funeral expenses incurred.
Issues 1 : claimed under Section 8 of the Civil Law Act 1956?
Whether on behalf of the deceased, special damages may be

sub-issue (iii) : Whether the deceased may claim for medical and nursing
care?

Cases
Chai Yee Chong v Lew Thai [2004]

In this case, three rules for claiming medical expenses incurred at private hospitals were
mentioned for future guidance on medical expenses claims.

Siti Rahmah bte Ibrahim v Marappan & Anor [1989]

The Court awarded rm350 per month for the cost of caring for the plaintiff who became
quadriplegic as a result of brain injury. (personal injury claim)
Application & Analysis
It has not been expressly stated in the question but considering Zuna was missing for 6
months and had died almost instantly without returning home, they cannot claim for
medical or nursing expenses as they did not take her to seek medical treatment or employ
nursing care.

Conclusion
Miki cannot claim for medical and nursing expenses on behalf of the deceased, Zuna.
Issues 1 : claimed under Section 8 of the Civil Law Act 1956?
Whether on behalf of the deceased, special damages may be

sub-issue (iv) : Whether the deceased may claim for out of pocket expenses
such as transportation costs?

Definition:
Transportation costs : All transport expenses required to be able to seek medical
treatment (among others) in order to put the plaintiff back in pre-accident position.

Cases:
K.Ratnasingam v Kow Ah Dek & Anor [1983]

The appellant had been injured in a road accident and suffered minimal brain damage.
Liability was admitted and the only issue was damages, one of which being damages for
transport. The court awarded the plaintiff the sum of 500$ as the transportation
expenses.
Application & Analysis
As Zuna's car was damaged beyond recognition, it is reasonably expected that she has lost
her usual means of transport. Thus, if she was to seek medical treatments at a hospital, to
travel to and from hospital visits, for example, she would have to incur expenses for
transportation costs. However, as Zuna died almost instantly and did not return home to
receive any medical treatment she thus did not incur any transportation expenses. Thus,
she may not claim for transportation costs.

Conclusion
Miki, on behalf of her deceased mother, Zuna, cannot claim for transportation costs.
Issues 1 : Whether on behalf of the deceased, special damages may be
claimed under Section 8 of the Civil Law Act 1956?
sub-issue (v) : Whether the deceased may claim for damage to the vehicle?

Liesbosch Dredger v SS Edison [1933] Liew Choy Hung (f) v Shah Alam
Properties Sdn Bhd [1997]
The plaintiff’s dredger used for a project
sank due to the defendant’s negligence. The The plaintiff's property in an exclusive
court awarded damages to cover : residential area flooded due to
1. The market price for a comparative dredger defendant's nuisance.
2. The cost of adapting the new dredger and
transporting it to the site of the project The court held that the plaintiff can
3. Compensation for disturbing the recover the cost of reinstatement of the
performance of the plaintiff’s contract from house and also allowed to claim damages
the date of loss until the new dredger could for diminution in value of the property.
have reasonably been available at the
project site
Application
In the present case, Zuna's car was found damaged beyond recognition in the apartment
parking. This implied that it is totally and completely destroyed as a result of the defendant's
tort (her kidnapper and murderer). Thus, the normal measure of damages is the car's value
at the time and place of destruction, entitling the claim of such an amount of money that
will allow for the purchase of a replacement in the market.

Conclusion

Miki, on behalf of her deceased mother, Zuna, can claim for damage to Zuna's vehicle.
Issues 2 : Whether on behalf of the deceased, general damages may be
claimed under Section 8 of the Civil Law Act 1956?
sub-issue (i) : Whether the deceased may claim damages for pain and suffering?

Definition :
Pain and suffering is among the non-pecuniary damages claimed under general damages and it
covers 5 aspects which are;
Physical pain,
Period of time spent in hospital or number of operations,
The total or partial loss of use of the affected body parts from the accident,
Mental ailment
Loss of expectation of life
Cases

Thangavelu v Chia Kok Bin [1981]

The plaintiff's son was killed in a road accident and the plaintiff as the
administrator of the estate sued the defendant. The deceased was 13 years old
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.

There was an element of pain and suffering as the injured child was not totally
unconscious after the accident and the sum of RM20,000 was awarded under
this.

Sim JC said: “Although he was in a state of unconsciousness, the boy before his
death was not totally unconscious ...in the present suit, there existed an element
of pain and suffering though in my opinion it was not of a high degree...”
Cases

Goh Chai Huat v Lee Mui Ping & Ors (2000) Sam Wun Hoong v Kader Ibramshah [1981]

The plaintiff was the administrator of the

Mohamed Azmi J gave an overview of general
estate of Goh Min Teck, the deceased.
damages which comprises pain and suffering,
loss of amenities (implied) and injuries
The deceased was alive for only 1 hour but in
suffered that lead to continuing or
that time he was in agonising pain as he was
permanent disability such as future loss of
bleeding from the nose and mouth.
earnings and loss of earning capacity.

The father of the deceased was awarded

RM6,000 for Pain and Suffering & Loss of
Amenities, as the son was alive for 1 hour.
Application & Analysis
The general rule to claim for pain and suffering is that the victim would have to be
conscious. However, in the case of Thangavelu v Chia Kok Bin [1981], Sim JC said that
despite being in a state of unconsciousness, the deceased boy was not totally unconscious
in a coma and thus still experienced some form of pain and suffering althought not of a high
degree. Hence, in the present case, as Zuna was missing for 6 months before discovered
dead, it is impossible to know whether or not she experienced pain and suffering and to
what degree. However, interpreting the manner she was killed - blunt force trauma and
dehydration - it is implied that the former would have caused her severe injury and
excruciating pain and whereas dying of dehydration would take "a few days or sometimes
approximately ten days average" according to an article by American non-profit
organisation "Death with Dignity". Thus there is certainly some period of time before Zuna
died for when she was conscious and hence should be entitled to claim damages for pain
and suffering.
Conclusion

On behalf of the deceased, damages for pain and suffering may be claimed.
 Whether on behalf of the deceased, general damages may be
Issues 2 : claimed under Section 8 of the Civil Law Act 1956?
sub-issue (ii) : Whether the deceased may claim damages for loss of amenities?

Definition :

Loss of amenities refers to the claim for damages in respect to the loss of enjoyment of
life. For this claim, the victim/plaintiff/deceased's lifestyle and social standing prior to the
accident will be considered.
Cases
Sam Wun Hoong v Kader Ibramshah [1981]

Mohamed Azmi J gave an overview of general damages which comprises pain and
suffering, loss of amenities (implied) and injuries suffered that lead to continuing or
permanent disability such as future loss of earnings and loss of earning capacity.

Under the heading of loss of amenities, the court is guided by previous awards in cases
involving similar type of injuries with allowances being given as to the plaintiff's age,
marital status, his special position socially or in business, depreciation or appreciation of
money value and other relevant circumstances.
Cases
Dato’ Stanley Isaacs (suing by himself and as the administrator of the estate of To’
Puan Suzanne Thomas, deceased) v the Government of Malaysia & Ors [2019]

The claim was brought by husband of the deceased who sought treatment at a
private hospital for severe pain and swelling in her right ankle. The diagnosis
was septic arthritis of the ankle but on seeking further treatment at HKL,
diagnosis was osteoarthritis.
The deceased, who suffered from hypertension and diabetes, began to have
persistent vomiting and severe headache and could not respond to questions
put to her.
Subsequent tests and procedures confirmed that she not only had septic
arthritis of the ankle joint but had also suffered a massive and fatal stroke.
The High Court inter alia awarded damages comprising RM100,000 for pain
and suffering and loss of amenities suffered by the deceased.
Application & Analysis
In regards to a claim of loss of amenities on behalf of Zuna, reference may be made to Sam
Wun Hoong where it was mentioned that this quantum of damages is decided inter alia on
marital status, special position socially or in business, depreciation or appreciation of money
value and other relevant circumstances. Due to injuries sustained, Zuna would naturally be
unable to move and conduct daily activities as she used to, or at least not alone. For instance,
Zuna is a school teacher and was one of two candidates up for the Principal post. This shows
her capabilities as a respected, intellectual and educator. Due to the attack, she would have
been affected physically as well as mentally due to mental anguish and trauma and would be
unable to conduct classes as effectively. As a consistent, monthly donor to the special fund for
needy students, she would naturally attend charity drives, events, galas and more to support
such causes and this aspect of her life would also be affected due the injuries from her attack.
Zuna is also unmarried, and the injuries and trauma sustained by her may affect her marital
prospects in the future. Thus, as a respected, active member of society who had people
depending on her, her being deprived of her usual life activities entitles her to a claim for loss
of amenities.
Conclusion

On behalf of the deceased, damages for loss of amenities may be claimed.

Issues 2 : claimed under Section 8 of the Civil Law Act 1956?
Whether on behalf of the deceased, general damages may be

sub-issue (iii) : Whether the deceased may claim other general damages such as the loss
of expectation of life and loss of future earnings for the "lost years"?

Rules :

Section 8(2)(a)
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 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

s. 8(2)(a) abolishes loss of expectation of life and loss of future earnings for the “lost years”
Cases
Goh Chai Huat v Lee Mui Ping & Ors [2000] Lee Cheng Yee v Tiu Soon Siang & Sons [2004]

Claims for loss of future earnings was The plaintiff, administrator of the estate of Chia
disallowed. Miew Hien, brought a suit on negligence against
It was held that in relation to estate claims, the defendants as owner and driver of the lorry
once a person is dead, any claim in relation that caused the accident and death to Chia
to loss of future earnings or damages for loss Miew Hien. One of the issues discussed was
of earnings during the lost years comes to an whether the estate can claim for loss of
end. earnings for the lost years of the deceased and
also whether the deceased was unemployed at
The law allows damages to the nearest the time of the accident.
relations of the deceased after his death
under the dependency claims and only the It was held that there cannot be a claim for loss
dependents can claim for loss of future of earnings for the lost years.
earnings of the deceased.
 Marappan v Siti Rahmah [1990] Chang Ming Feng v Jackson Lim [1999]

A 33-year-old trainee teacher's injuries in 1986 The respondent was working offshore and
resulted in complete paralysis in her four
earning monthly salary and offshore allowances.
limbs. At the time of her injury she was
As a result of the accident he could no longer
receiving RM345 as a training allowance. At
work offshore but still receive his monthly
Common Law the prospect that she would
salary.
have completed her training and would have
received a trained teacher's pay would have
The court held that the offshore allowances can
been taken into account. But since the
still be calculated for his sum of earnings.
accident occurred after the 1984 Amendment
Act had come into force, the prospect of her However, the court will not take into account
earnings being increased as a future trained any speculation or prospects of the salary being
teacher was ignored. Fortunately, the training increased at a future time unless the increase is
allowance of RM345 was taken as earnings and actual and not prospective.
that figure was used as the multiplicand for
the computation of loss of future earnings.
Application & Analysis
Zuna was a school teacher and has been earning a of RM7,000 prior to her death. If it was not for
the incident that caused her death, she would naturally be entitled to claim for loss of future
earnings and loss of expectation of life, if she were to continue to live while sustaining injuries that
would have affected her ability to execute her job such as in the case of Marappan where the
training allowance of a trainee teacher was considered multiplicand for loss of future earnings.

However, pursuant to Section 8(2)(a) and the decision in Goh Chai Huat and Lee Cheng Yee where
the claim for loss of future earning was rejected, the claim for loss of future earning and loss of
expectation of life on behalf of Zuna will fail. This is because only a dependent may claim for such
under section 7, and only to the extent of loss of financial support.

Additionally, if Zuna's administrator's were to claim damages for the fact that she was one of two
candidates selected for the post of Principal, securing which, she would be earning RM10,000 in the
following month, the claim will fail too. This is because, as she was only a candidate and not yet
been appointed, the increase in future earning is only prospective. Applying the decision in Chang
Ming Feng, no increase in future earning will be accounted for unless it is actual and not merely
prospective.
Conclusion
The deceased cannot claim for loss of expectation of life and loss of future earnings.
Main Conclusion for the Estate Claim under Section 8 of the CLA 1956

In conclusion, under the estate claim of Section 8 of the CLA 1956, for claims of special
damages, Miki acting as the estate of Zuna, can claim RM32, 400 for loss of earnings
and succeed in claims for damages to Zuna’s vehicle. If there is any, she can also claim
for funeral expenses incurred on behalf of Zuna. However, Miki may fail in a claim for
medical and nursing expenses and transportation costs. Under general damages,
acting as the estate of Zuba, Miki will succeed in a claim for pain and suffering and loss
of amenities but will fail in a claim for loss of expectation of life and loss of future
earnings for the “lost years”.
 Exemplary Damages Claim
Issue : Whether Miki can claim for exemplary damages?

Rule : Section 8 (2) (a)

: 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 shall not include any exemplary damages, any damages for
bereavement made under subsection 7(3A), any damages for loss of earnings in
respect of any period after that person's death.

In this kind of damages, the court has the intention to punish the
Definition : wrongdoer by an additional award on top of the award of compensatory
damages and perhaps to deter others who might be tempted to act in the
same way as the defendant.
Cases
Rookes v Barnard [1964]

Lord Devlin stated that damages of this type would only be awarded in specific cases and
then only very exceptionally.

Three classes of cases where exemplary damages have been awarded were considered :

(i) Where servants of the Govt behave in an oppressive, arbitrary or unconstitutionally way

(ii) Where the def has calculated that he will make a profit for himself by committing the
tort even after paying the compensatory damages

(iii) Where they were expressly authorized by the statute

Application
However, as this is a fatal accidents claim where under section 8 of the Civil Law Act 1956,
one claims on behalf of the deceased person, acting as their estate. In this aforementioned
provision, it is expressly stated under section 8(2)(a) that no claim for exemplary damages
may be accounted for. Therefore, as Miki is claiming under the above provision, she cannot
claim for exemplary damages.

Conclusion
Miki cannot claim for exemplary damages.