Fatal Claims - For Revision Purposes Only

For Revision Purposes Only Azrin.Hafiz/LL.B(Hons)-UiTM

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LAW 549 – REMEDIES (TORTS)

Fatal Claims

Dependency

Damage Loss of Support

Bereavement

By:

i. Spouse; or

ii. Parents of minor who has never married

Special Damages

E.g

i. Funeral expenses:

ii. Other sundry out of pocket expenses

Estate

Pain & Suffering prior

to death

Special Damages

E.g

i. Funeral expenses

ii. Medical expenses

iii. Loss of property

iv. Repairs of vehicle

v. Cost of taking out LA/Probate

vi. Other sundry expenses


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Dependency Claim

What is it?

A claim for loss of support suffered by the dependants of the deceased as

a result of the death of the latter caused by the negligence of the

wrongdoer.

Relevant provision Section 7 of Civil Law Act 1956 (CLA)

Pre-requisites

i) Claimant must be dependants qualified under S.7 of CLA;

Who are dependants?

- Husband/wife

- Parents (father/mother/grandparents)

- Child (son/daughter/illegitimate child/ legally adopted

child/grandchild/ stepchild)

ii) Dependants must have suffered financial loss; and

iii) Financial loss directly connected to family relation

Conditions

Precedents

a) Deceased must age below 55 years;

Case: Ahmad Nordin bin Haji Maslan v Eng Ngak Hua1

Held: The normal age of retirement in Malaysia was 55 years.

b) Deceased must in good health prior to death; and

Case: Osman Effendi bin Mahmud v Mohd Noh bin Khamis2

Principle: Good health means no other cause of ill health

prior to the accident.

c) Deceased was receiving earnings at time of death

Case: Dirkje Pieternella Halma v Mohd Nor bin Baharom3

Principle: Deceased must be earning at the time of his death.

If deceased was on no pay leave, her earnings will

be treated as nil and therefore her dependants will

not be entitled to loss of support.

Calculation

1 [1985] 2 MLJ 431

2 [1998] 5 CLJ 510

3 [1990] 3 MLJ 103

Multiplicand x Multiplier = Loss of Support


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Multiplicand is determined by deceased’s earnings at the time prior to

his death

Earnings to include:

Wages/Salary/Allowances/EPF/Profit/Commission/ Monthly

contributions/Overtime/Part time

Multiplier as per Section 7(3)(iv)(d) of CLA to determine the number

of years’ purchase

i) Age ≤30 = 16

ii) Age 31 – 54 =

Bereavement

aka grief/sorrow/mourning/berkabung

Section 7(3A) of CLA – sum to be awarded as damages for

bereavement shall be RM10,000.00

Section 7(3B) of CLA – Who can claim?

- Spouse; and

- Parents, if the deceased is minor

or never married

Section 7(3C) of CLA – sum awarded to parents to be divided equally

between them.

Case: Hazimah bt Muda v Ab. Rahim bin Ab. Rahman4

Principle: 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.

Case: Noor Famiza bte Zabri v Awang bin Muda5

Principle: No interest would be given on the award of

damages for bereavement

Funeral Expenses

Such expenses are recoverable by the dependants if they have been

incurred – Section 7(3)(ii) of CLA

4 [2001] 5 CLJ 511

5 [1994] 1 MLJ 599

Base age (i.e. 55) – Age at death

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Case: Schneider v Eisovitch6

Principle: Expenses incurred to transport body is claimable

Case: Johnson v Baker7

Principle: Expenses incurred for mourning is not claimable

Case: Hart v Griffith-Jones8

Principle: Cost of memorial stone is not claimable

The related issues

on dependants

Case : Joremi bin Kimin v Tan Sai Hong9

Fact : A customary marriage between two people was not

registered

Issue : Whether the wife has locus standi to bring dependency

claim?

Held : Yes, she can be considered as widow.

Case : Zulkifli bin Ayob v Velasini a/p K Madhavan10

Principle: Only legally adopted children qualified as

dependants.

Case : Chan Chin Ming v Lim Yok Eng11

Principle: The persons entitled to claim loss of support in

respect of a deceased person are not including a

brother or a sister.

Case : Esah bte Ishak v Kerajaan Malaysia12

Held : The grandparents of deceased were dependants.

Estate Claim

Introduction

Deceased is considered to have estate if he had made a will prior to his

death and had appointed executor.

aka Survival Action

Relevant provision Section 8 of CLA

6 [1960] 2 QB 430

7 [1825] 2 C&P 207

8 [1948] 2 All ER 729

9 [2001] 1 MLJ 268

10 [2000] 1 MLJ 593

11 [1994] 3 MLJ 233

12 [2006] 6 MLJ 1


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Damages for pain

and suffering prior

to death

Such damages can be claimed, where:

- there is a lapse of time between the accident and the death; or

- the deceased was not totally unconscious.

Case : Thangavelu v Chia Kok Bin13

Fact : Deceased died 11 months and 6 days after the

accident

Held : The court awarded RM 20,000 for pain and suffering.

Case : Maria bte Mohamad v Abdullah bin Daud and Dr Lim

Kok Eng14

Fact : Deceased died 5 months and 18 days after the accident

Held : The Court awarded RM 15,000 for pain and suffering.

Case : Lee Cheng Yee v Tiu Soon Siong15

Fact : Deceased died in accident and unemployed at the

time of death. Witness brought evidence that

deceased would secure employment based on her

expertise and qualification.

Held : Damages was not awarded as he was unemployed

Special damages

Section 8(2)(c) of CLA

Examples are:

- Funeral expenses

- Cost of extraction LA/Probate

- Medical expenses

- Damages to car

- Transport expenses

Deduction of

damages (at Court’s

discretion)

Case : Takong Tabari v Government of Sarawak16

Fact : A series of explosions and fire had killed the

plaintiff’s husband. The deceased died after 10 ½

hours after the accident on the same day.

According to his wife, deceased was in great pain

prior to his death and fully conscious, as he could

relate what action had actually happened.

Held : Court allowed for pain and suffering damages,

however its quantum was reduced from

RM 10,000 to RM 3,000 due to short interval of

pain.

13

[1981] 2 MLJ 277 14

[1990] 1 MLJ 240 15

[2004] 1 MLJ 670 16

[1996] 5 MLJ 435

Fatal Claims - For Revision Purposes Only

Law

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