DAMAGES IN

CASES OF

Damages in cases of death

s.8
S. 7
Estate
Dependancy Claim
claim (harta pesaka)
(mumtalakaat)

SPECIAL
GENERAL SPECIAL
DAMAGES
DAMAGES LOSS OF DAMAGES
FINANCIAL GENERAL LOSS OF
FUNERAL
BEREAVEMENT SUPPORT •FUNERAL DAMAGES EARNING
MEDICAL
S. 7 (3A & 3B) •CITRSR
NURSING
ORS

Dependancy claim (s. 7)

7 CLA  COMPENSATION TO FAMILY OF A PERSON FOR LOSS OCCASSIONED BY HIS DEATH  To provide dependants a prudent sum to supply them with the financial support that would have been provided for them if the deceased had not been killed .Dependancy claim  S.

ctd  7(1) Df liable as would have been if death had not ensued  7(2) – wife.. parents. child (not siblings – Chan Chin Ming) ……. husband. 7(11)  7(5) Limitation period – 3 years .

7 Dependancy claim GENERAL SPECIAL DAMAGES LOSS OF DAMAGES FINANCIAL BEREAVEMENT SUPPORT •FUNERAL S.What are damages recoverable? S. 7 (3A & 3B) •CITRSR .

What are damages recoverable ?  1. spouse of the deceased  2. if the child was a minor and never married . parents.. 7 (3A) & (3B) Bereavement  up to RM10.000 only for…. General Damages  S.  1.

calculation the same as LOFE  All the rules applicable are in s.2. 7 (3) (iv) LOSS OF FINANCIAL SUPPORT  Cannot make claim for LOFE !!!  However. 7 (cannot use s. For Loss of Earnings of the deceased  S. (read the act) . 28A.

Calculation for LOFS  M’cand x M’plier .

7 (3) (iv) (d)  For Pf aged 31-54.The only difference in calculation  LOFS  Multilpier -S.  55 – age at the time of death  -------------------------------------  2 .

marriage of the child / remarriage of the spouse . expected working life of the deceased  2.Ctd’  The other problem with Multiplier in calculating LOFS  The courts tend to take into account the vissitudes of life (common law) – taxing down the multiplier  Based on. period of support the dependants require  3.  1.

see  Ibrahim Ismail (2004) – CoA .Supreme Court reduces multiplier ….  However.Ctd’  Chan Chin Ming (1994) .

LOFS of RM750 should be reduced to half coz the deceased’s mother spent only half and used half for the siblings  2. Whether a parents claim should follow the statutory multiplier? .  1.Chan Chin Ming 7 Anor v Lim Yok Eng (1994)  Deceased 25 years old  Df Appealed that.

reduced the multiplier to 7  Dissenting judgment  Edgar Joseph SCJ :The court has no discretion to reduce multiplier . Court reduced the sum to RM375  2. Held (majority) :  1.

 Ibrahim Ismail (2004) – CoA  Gopal Sri Ram CJ – argues that judges are not allowed to tamper with statute – multiplier has been fixed  At present – what is the position of the courts? .

 Marimuithu Velapan v Abdullah Ismail (2007) 1 CLJ 436  2 decisions binding on the judge  CoA (Ibrahim) and Supreme Court (Chan Chin Ming)  Which one to follow?  Court must dutifully observe the repeated reminders of the Fed Ct without showing any disrespect for the CoA – must follow the doctrine of binding precedent .Followed Chan Chin Ming .

Read (Article)  Civil Claims Involving Motor vehicle Accidents: Whether Court of Appeal the Apex Court? – 6 MLJ 2008  Anantha Kiruisan PSR v Teoh (2008) 4 MLJ 672 .

7 (3) (ii) – a reasonable sum will be awarded by the court .S.SPECIAL DAMAGES  3.Jub’il v Sunway Lagoon 2001 Azizah Manan 2014  4. Cost incurred to replace the services rendered by spouse/child s. Funeral expenses s. 7 Ctd’. 7 (3) (iii) – Hum Peng Sin (Gopal Sri Ram CJ) (this is not a claim for loss of service by the spouse/child) .

washing clothes. Lim Hai Hoon (2001) COA (Gopal Sri Ram CJ)  Issue : whether the Pf could recover deceased’s services?  Wife deceased due to negligence of Df  She used to earn RM600.  Services rendered at home were cooking.  Husband had to hire house maid and claims RM400 for maids wages . kept house.Hum Peng Sin v.

laundry etc  Therefore the Pf can recover damages for the cost incurred to replace the services rendered by his spouse (this is not loss of service) . for loss of service  But Court held.  It is a different matter all together where a husband not only lost his wife but was also put to monetary loss which was a direct result of the negligence – employ maid.. S 7(3) (iii) no damages .

LIMITATION PERIOD  S. 7(5) – dependancy claims must be brought 3 YEARS after the death of the deaceased  Kuan Hip Peng v Yap Yin  Claim was brought 4 days late  Claim dismissed .

DEPENDANCY CLAIM …… S. 7 Dependancy claim GENERAL SPECIAL DAMAGES LOSS OF DAMAGES FINANCIAL BEREAVEMENT SUPPORT •FUNERAL S. 7 (3A & 3B) •CITRSR .

Estate Claim (s. 8 CLA) .

8 (1) on survival of causes of action] .Estate Claim  S. 8 gives the right to claim damages on behalf of the estate of the deceased ie: the loss suffered by the deceased before he died  [ must read and understand s. 8 Effect of death on certain causes of action  S.

8 Estate claim SPECIAL GENERAL DAMAGES DAMAGES LOSS OF . 8 – Estate Claim s.MEDICAL .s.loss of amenities .FUNERAL -Pain & suffering EARNING .NURSING ORS .

8 and besides that there was also no proof of earning (EPF etc.1. General Damages  Pain and suffering & Loss of amenities  Thangavelu  Goh Chai Huat  Father of the deceased was awarded RM6. In that 1 hour he was in agonising pain – bleeding from nose and mouth  LOFE disallowed as it is not allowed under s.000 for PS and LOA. as the son was alive 1 hour ..) .

2. 8 (2) (c) . Earnings  Only loss of earnings before death  s.

3.  (as incurred before he died) . 7)  Medical expenses  Nursing care  Others like property damage etc…. Special Damages  Funeral (if it has not been claimed under s.

MERE DAMAGE .DAMAGES IN CASES ON DAMAGE TO PROPERTY  2 CIRCUMSTANCES:  1. TOTAL DESTRUCTION  2.

1. Consequential economic loss –  Any loss as a consequence of the destruction of property  loss of profit (if for business) . Total destruction  Can recover:  1. Measure of damages is the value the property at the time of destruction  2.

LIESBOSCH DREDGER .

 Court awarded’  1. Compensation for the Pf’s loss of carrying out the contract with a thrid party . The market price for a new dredger  2. cost of transport of the new dredger  3.

2. Mere Damage – 2 choices  Pf can repair the  Pf can sell the damaged item damaged item  Damages ?  Damages? .

If Pf retains the damaged property and intends to repair it  Pf can recover damages for:  COST OF REPAIR .Mere Damage – 2 choices  1.

 Pf can recover damages for.  Diminution (reduction) in the value of the property  Eg : Waja – 2nd hand RM 30K  After damaged in accident – Pf can only sell for RM 10K  He can claim for 20K (reduction in value) . If Pf intends to sell the damaged property. 2.

Case:  Liew Choy Hung v Shah Alam Properties  Appl’s home damaged  Nuisance and negligence of Resp  Caused flooding and severe water logging  Appl chose to REPAIR the damage  What did the court award the Pf ????? .

diminution in the value of the ppty  Reason: Because land has a reputation .  He should be entitled to  1. Federal Court held. cost of repair  2.

 Plaintiff should show the court that he has tried his best to deal with the injury and his life after the injury . the plaintiff has a corresponding duty to minimise his loss.Mitigation of Damage  Defendant is generally liable for the damage sustained but on the other hand.

 The failure of a plaintiff to take protective steps after suffering an injury or loss can reduce the amount of the plaintiff's recovery. .