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Tutorial Answer for Nelly and Josie

The document discusses personal injury and fatal accident claims, focusing on the eligibility of Nelly to claim damages for personal injuries and Mr. and Mrs. Tang's potential claims for Josie's death. It outlines the requirements for special and general damages, including medical expenses, loss of earnings, and pain and suffering, along with relevant case law. Additionally, it addresses dependency claims and estate claims related to fatal accidents, detailing the necessary conditions and calculations for compensation.

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3 views3 pages

Tutorial Answer for Nelly and Josie

The document discusses personal injury and fatal accident claims, focusing on the eligibility of Nelly to claim damages for personal injuries and Mr. and Mrs. Tang's potential claims for Josie's death. It outlines the requirements for special and general damages, including medical expenses, loss of earnings, and pain and suffering, along with relevant case law. Additionally, it addresses dependency claims and estate claims related to fatal accidents, detailing the necessary conditions and calculations for compensation.

Uploaded by

2021488118
Copyright
© © All Rights Reserved
We take content rights seriously. If you suspect this is your content, claim it here.
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Download as PDF, TXT or read online on Scribd
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TUTORIAL ANSWER FOR NELLY AND JOSIE

PERSONAL INJURIES AND FATAL ACCIDENT CLAIMS


SEMESTER OCT 2020 – FEB 2021

First Issue: whether Nelly can claim for damages as stated, under personal injury claims

Intro: Special and General Ds – SD must be pleaded and proved. There must be a need and
reasonable. SD can be calculated/ quantified/ assessed – pecuniary damages.

GD cannot be calculated/ assessed – non pecuniary damages

SPECIAL DAMAGES
1. Medical Expenses at private hospital – RM50,000
Yaakub Foong v Lai Mun Keong & Ors [1986]
Chai Yee Chong v Lew Thai (2004) – test of reasonableness
The plaintiff must prove that all amount spent was reasonable, taking into account
normal charges at other private hospitals. If the court was not satisfied that the plaintiff
was justified in making the claim, then depending on the facts and circumstances of the
case:
1. The court should either dismiss the claim, or
2. The court may award an amount not exceeding 1/3 of the claim (if excessive may
even award lesser than 1/3) – 1/3 rule noted as a matter of practice and not fixed by
any written law.
3. Followed in Tay Been Ong v Ong Kwi Hong [2008] and Loh Hee Thuan [2003]

2. Loss of personal belongings/ theft – camera RM2000


Parvathy v Liew Yoke Khoon [1984]

3. Loss of future earnings


Section 28(A)(c) of the Civil Law (Amendment) Act 1984
Future earnings – earnings calculated from date of accident and ending when the person
reaches 55 years, and no longer distinction between pre-trial and post-trial, pre-trial
damages attracts interest - Dirkje Pieternella Halma (1990)

Section 28A(2)(c)
In awarding damages for loss of future earnings the court should take into account:
Below 55 years; and, unless proved or admitted…in good health; and was receiving
earnings … before he was injured.

Age limit – Section 28A(2)(c)(i)


Tan bin Hairuddin & Anor v Bayeh Belalat (1990) - A person aged 55 and above at the
time of the accident cannot claim.
Abdul Aziz bin Alla Picha v Fan Chin Siang (1997)
Jennifer Anne Harper (Sued in her own capacity and as executrix of the estate of
Bernard Alfred Harper, deceased) v Timothy Thesera (2009)

Good health – Section 28A(2)(c)(i)


Loh Hee Thuan v Mohd Zani Abdullah [2003] 1 CLJ 410 - The plaintiff must have been
able to lead a normal life before the accident.

Was receiving earnings at the time of injury – Section 28A(2)(c)(i)


Dirkje Pieternella Halma (1990) - Only the amount that the plaintiff was receiving at the
time of injury can be taken into account. Thus, if the plaintiff was not receiving any
earnings at that point of time, she does not qualify for any award of damages for loss of
future earnings.
Abdul Rahman bin Mohd Mera v Transnasional Express Sdn Bhd & Anor (2007)
Khamis bin Mohd Norhari v Amir Hamzah (2008)

Earnings must be legal and must be proof of earnings – thus tips cannot be considered
under the meaning of earnings.

Assessment
Multiplier x Multiplicand
Fixed Multiplier: Section 28A(2)(d)(ii) aged between 31 and 54 - (55 – 36) /2 = 9.5
Multiplicand: Net income – (RM4,000 + RM2,000) – (RM1,000 + RM1,000) = RM4,000
x 12 = RM48,000
Thus, 9.5 x RM48,000 = RM456,000

4. Loss of Earning Capacity - Loss RM1,000 due to the injuries


Moeliker v A Reyolle & Co Ltd [1977] The court said that there must be the existence of
a real or substantial risk that a plaintiff might lose his employment within his working life
and/ or might be disadvantaged in securing similar employment. Where such a risk
could be shown the assessment of damages should take into account: the extent of the
risk; the time when the loss of employment might occur; factors affecting the plaintiff’s
chances of securing alternative employment.

GENERAL DAMAGES

1. Pain and Suffering - Section 28A(2)(b) provides that if the plaintiffs expectation of life
has been reduced by the injury, the Court, in assessing damages in respect of pain
and suffering caused by the injury, shall take into account any suffering caused or likely
to be caused by awareness that his expectation of life has been so reduced. - Azizi
Amran v Hizzam Che Hassan, the plaintiff suffered a 4cm shortening of his left leg and
would later develop osteoarthritis of the joint in which he would have to endure more
pain and stiffness, the Court of Appeal found that damages of RM28,000 were manifestly
low taking into consideration the severity of the plaintiff’s injury. Thus, the court awarded
damages of RM35,000.

2. Loss of amenities - deprivation of ordinary experiences and amenities of life, of ability to


engage in sports, of senses - Lim Poh Choo v Camden & Islington Area Health Authority:
Where the plaintiff suffered cardiac arrest and brain damage as a result of the
defendant’s negligence, the court ruled that loss of amenities can be awarded even if
the plaintiff never regains consciousness and is not aware of his loss.

INTEREST: proportionate rate (5-8%) – purely discretionary


SD – half of the proportionate rate
Case: Jefford v Gee [1970] 2 WLR 702
Order 42 Rule 12 of the Rules of Courts 2012
The Chief Justice of Malaysia Practice Direction No 1 of 2012

Second Issue: whether Mr and Mrs Tang can claim damages for fatal accident claims due to
Josie’s death.

DEPENDENCY CLAIMS

(Loss of Support, Bereavement and Funeral Claim)


Three prerequisites:
1. Dependants – Mr and Mrs Tang –parents - Section 7 (2) of CLA
Esah Ishak v Gov of Msia
2. Financial loss – Chan Chin Ming
3. Family matters - Burgess v Florence Nightingale Hospital

1. Loss of Support:
Three conditions specified under the Amended Act 1984
Before 1 September 2019, Section 7(3)(iv)(a) of the Amended Act 1984, the deceased
• Below 55 years –case
• Good health - case
• Must be receiving earnings - case
Assessment/ Calculation
Fixed Multiplier = 16
Multiplicand - RM300 x 12 = RM3600
Thus, 16 x RM3600 = RM57600

2. Bereavement
Section 7(3B) – parents can claim if the deceased was unmarried - case
Section 7(3A) – RM10,000 – case
Section 7(3C) – both parents claim – the amount will be divided – case

3. Funeral Expenses – RM3000 and a dozen yellow daisies every week – reasonably
necessary- case and Section 7(3)(ii) – case

ESTATE CLAIMS

Special damages
1. Medical expenses for the two weeks
Yaakub Foong v Lai Mun Keong & Ors [1986]

2. Vehicular Damage – RM10,000


Chin Hooi Nan v Comprehensive Auto Restoration Services Sdn Bhd [1995] 2 MLJ 100
– HC

General Damages
Pain and Suffering – not claimable because she was unconscious – Lim Poh Choo

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