CLA 1956 (rev 1972) CLA 1956
Under Common Law, the award for loss of expectation of life awarded as a
separate heading. The assessment is up to the judge’s discretion.
The award for loss of expectation of life as a separate heading is abolished by section 28A (2)(a). It is however assessed as part of pain and suffering under section 28A (2)(b) provided that the plaintiff was aware of the loss. The assessment is up to the judge’s discretion.
Under Common Law loss of pre-trial earnings awarded as separate heading. The multiplier is from the date of injury to the
Although loss of pre-trial earnings is lump into the assessment of loss of future earnings, it can still be awarded as a
129 date of judgment. separate heading. The multiplier is from
the date of injury to the date of judgment. The period however is deducted from the statutory multiplier for loss of future earnings in section 28A (2)(c).
Loss of Future Earnings allowed under Common Law.
- No pre-condition.
- Compensation benefits from other compensation funds are not taken into consideration.
- Only expense in earning / producing income was deducted from the assessment of
multiplicand
- The assessment of multiplier is based on plaintiff’s earning at the time of trial. Any increase or decrease in plaintiff’s earnings at the time of trial is factored in into the assessment based on judges’ discretion.
- The assessment of multiplier is based on judges’ discretion guided by the Common Law principle.
Loss of Future Earnings provided in section 28A (2)(c).
- 3 pre-conditions must be fulfilled. Plaintiff must be below fifty five (55) years old, receiving earning and in good health at the time of injury.
- Compensation benefits from other compensation funds are not taken into consideration.
- Living expenses is to be deducted from the assessment of
multiplicand.
- Future increase in income is not considered. The assessment of multiplicand is based on plaintiff’s earnings at the time injury.
- The assessment of multiplier is based on the statutory prescribed method.
Loss of Future Earning Capacity allowed under Common Law
- The unemployed and minors are allowed to claim.
- Prospect of future increase in income is taken into account. - Assessment of multiplier and
multiplicand is up to the judge’s discretion.
Loss of Future Earning Capacity not provided for but still allowed under Common Law.
- Only those who are receiving earning at the time of injury is allowed to claim.
- Assessment of multiplier and multiplicand is up to the judge’s discretion.
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CHAPTER 4
THE EFFECTS OF THE CLA 1956 ON JUDICIAL DISCRETION
AND THE QUANTUM OF DAMAGES IN FATAL ACCIDENT
CLAIMS ARISING OUT OF MOTOR VEHICLE ACCIDENTS
4.1 INTRODUCTION
Fatal accident claims arising out of motor vehicle accidents are claims for compensation (damages) for the loss suffered by the accident victim (the deceased), his estate or his dependants due to the victim’s wrongful death. The cause of action arises when the negligent act or omission of the driver of the vehicle at fault causes the demise of the deceased. It exists irrespective of whether the deceased died instantaneously or survived for some time before succumbing to his injuries.1 Damages under fatal accident claims can be divided into four (4) main categories; damages awarded to the deceased’s estate,2
damages for loss of support awarded to the deceased’s dependants,3
damages for loss of services and consortiums awarded to deceased spouse or parents4 and bereavement.5 Although the right to these damages arises from the same cause of action, the damages does not overlap since they are only available to specific persons as provided in the Civil Law Act 1956.6 In Malaysia, the only statutory provision which provides for the assessment of damages for fatal accident claims arising out of motor vehicle accidents are sections 7 and 8 of the CLA
1 Lim, Heng Seng, Assessment of Damages in Personal Injury and Fatal Accident Claims: Principles and Practices, (Kuala
Lumpur: Marsden Law Book, 1995), at 109.
2 Also known as estate claims. Where the deceased did not die instantaneously, the pain and suffering, loss of amenities, loss of
earnings as well as expenses which he bears between the time of injury and death would entitle him to claim for compensation. After the deceased die, this right of action is vested on his estate.
3 Also known as dependency claims. Where the deceased’s death causes financial loss to his dependents due to cessation of
financial support. The dependents are entitled to be compensated for the loss suffered. This right of action is independent of the right of action vested on deceased’s estate.
4 Also known as claims for loss of service and consortium. 5
Claim for the grief, sorrow and emotional anguish suffered by deceased’s close relatives.
131 1956. The same sections also provide for the assessment of damages in other type of fatal accident claim actions. In addition to these sections, judges are also governed by the Common Law principles and decided cases.
The Civil Law Enactment 19377 was the first statutory provisions in Malaysia which recognizes the causes of actions under fatal accident claims.8 Section 3 provides the cause of action for damages for loss of support by deceased’s dependants while section 4 allows deceased’s estate to substitute the right of action which originally belongs to the deceased (subject to some exceptions). Apart from providing for the cause of actions, section 3 and 4 of the Civil Law Enactment 1937 also contained provisions on the measure of damages, the beneficiaries to the claims, person who can bring the actions, the limitation period and the benefits which are not to be taken into consideration in the assessment of damages. The actual method of assessing the damages however was left to the discretion of the judges guided by the Common Law principles and decided cases.
The Civil Law (Amendment) Act 19759 and the Civil Law (Amendment) Act 198410 brought several changes in respect of the assessment of damages for fatal accident claims. These amendments are consolidated into the Civil Law Act 1956 (rev 1972)11 to form the current CLA 1956. These changes are mainly adopted from the provisions in the English Administration of Justice Act 1982 (cap 53)12 with several
7 (F.M.S no 3 of 1937). Introduced the English Common Law to the Federated Malays States (Perak, Selangor, Pahang and Negeri
Sembilan). The provisions in the Enactment were extended to the Unfederated Malay States (Kedah, Perlis, Kelantan, Terengganu
and Johor) via the Civil Law (Extension) Ordinance 1951(F. of M. No 49 of 1951). The Civil Law Enactment 1937 was repealed
and substituted with the Civil Law Ordinance 1956 (F. of M. No 5 of 1956), the Civil Law Act 1956 (Act 67)(rev 1972) and later the CLA 1956.
8 The provisions in the Civil Law Enactment 1937 were adopted from the Fatal Accident Act 1846 (9 & 10 Vict. cap.93)
(hereinafter referred to as “the Fatal Accident Act 1846”) and the Law Reform (Miscellaneous Provisions) Act 1934 (cap 41)(hereinafter referred to as “the Law Reform 1934”) in England.
9 (Act A308). Hereinafter referred to as “the CLAA 1975”. The amendments were consolidated into the CLA 1956 (rev 1972). 10 (Act A602). Hereinafter referred to as “the CLAA 1984”. The amendments were consolidated into the CLA 1956 (rev 1972). The
amended Act is the current CLA 1956.
11
(Act 67). Hereinafter referred to as “the CLA 1956 (rev 1972)”
132 distinctiveness which are purely of our own making. The amendments especially the CLAA 1984 are not well received by the legal community in Malaysia. They are said to have altered many aspects of the law relating to the assessment of damages for loss of support and estate claims to the detriment of the claimants.
Using similar approach as the previous chapter, this chapter focuses on the effects of sections 7 and 8of the CLA 1956 on the assessment of damages in fatal accident claims arising out of motor vehicle accidents. It analyses the provisions from the perspective of the exercise of judicial discretion as well as the quantum of damages in the effort to answer the question of whether the CLA 1956 have abolish or fetter judges’ discretionary power in its effort to reduce the amount of damages being mated out by the courts as claimed. It also analyse whether the abolition or restriction (if any) imposed by the sections have any effect in reducing the amount of damages being awarded by the courts.
As in the previous chapter, it must be emphasis that the cases cited in this chapter are also confined to cases involving motor vehicle accidents only.13 The discussion is also restricted to the heads of damages which are affected by the provisions in the CLA 1956. The heads of damages which are not affected by the CLA 1956 are not discussed since they are beyond the scope of this research. Again, it should always be borne in mind that the term ‘discretion’ used throughout this chapter refers to the fact that in assessing the amount of damages for personal injury judges have to factor in various elements including the facts of the case, the submissions of the parties as well as the law, legal principles, judicial precedence and norms governing the issue at hand judiciously and not according to their whim and fancies.
13
However, personal injury claims arising out of other cause of action are also cited occasionally due to their relevancy to the discussion at hand.
133