DAMAGES FOR PERSONAL INJURY

LECTURE 2

Malaysian law is governed by the Civil Law Act 1956

Damages for PI

General(non-

pecuniary loss)

Pain and suffering

loss of amenities Injury itself

Special(pecuniary

loss)

Loss of earnings

Out of Pocket

Expenses

Pain and suffering Pain and suffering are subjective, and are impossible to

measure in term of money. Nevertheless, a plaintiff is entitled to recover for his

pain and suffering, actual and prospective, resulting from the defendant’s conduct.

This will include his physical pain and suffering, nervous shock and any other psychiatric symptoms but not mere sorrow or grief.

The court has to take into consideration the age of the plaintiff as well as the nature and gravity of his injuries.

If the plaintiff is an infant, the court may take into consideration that wounds and broken bone heal faster and that the pain and suffering may not last for a substantial length of time.

Thinking point? Can a plaintiff who is unconscious or in a state

of coma claim for pain and suffering?

Cases In Wise v Kaye (1962) – a victim who had been

unconscious continuously since the accident was presumed to have experienced nothing of her injuries and thus received nothing under this head (pain and suffering).

Thangavelu v. Chia Kok Bin (1981) - After the accident, the plaintiff’s son was in a state of coma but was not totally unconscious until he died.

Held: there was an element of pain and suffering as the injured child was not totally unconscious after the accident.

Loss of expectation of life Another factor to be considered in deciding damages for

pain and suffering is the loss of expectation of life. Before the amendment Civil Law Act in 1984, loss of

expectation of life could be claimed as a separate heading.

Presently the law is stated in section 28A(2) - when assessing damages in respect of personal injury;

No damages shall be recoverable in respect of any loss of expectation of life caused to the plaintiff by the injury.

If the plaintiff’s expectation 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 this expectation of life has been so reduced.

Loss of amenities Loss of amenity essentially means loss of enjoyment of

life. The plaintiff is entitled to damages for the inability to

enjoy life in various ways, in particular impairment of the senses.

This will include for example inability to run or to walk, or to play football, piano, inability to enjoy sexual function or marriage.

The award varies depending on how the Plaintiff enjoyed his life. For e.g. if the plaintiff was good in sport, then any injury to his arms or leg might entitled him to get a higher award than the average plaintiff.

Plaintiff who are in a condition knows as PVS (persistent vegetative state) or in coma will normally receive a very high award for loss of amenity.

Cases In Lim v. Camdan Health Authority (1980)

- Lord Scarman distinguishes between damages for pain and suffering and damages for loss of amenities. In the case of pain and suffering, the plaintiff must be aware of the sensation of pain before he can recover damages. Loss of amenities, damages will be awarded irrespective of whether the plaintiff was aware of it or not since damages are awarded for the fact of deprivation.

In Wise v Kaye – the court awarded the plaintiff $15,000 for loss of amenity.

Marappan & Anor v. Siti Rahmah (1990) The plaintiff a trainee teacher who was

then 23 years old was knocked down by a motorcar driven by the 1st defendant. She suffered severe injuries resulting in complete paralysis in her four limbs.

Court awarded her RM180,000 general damages for pain and suffering and loss of amenities.

Injury itself Injuries are itemized and particular sums are

awarded for these on the basis of precedents, for example a broken arm will be worth a certain amount, loss of an eye a certain figure, a scar would be worth a certain sum and so on.

Er Siew Keng v. Eog Thiang Lai (1990) 1 CLJ 488 - The trial judge awarded RM45,000 for the multiple injuries to the plaintiff’s leg, RM 15,000 for the fractures to the radius and ulna and RM14,000 for all her ugly scar.

Loss of consortium Under the common law, the husband of an

injured woman is entitled to claim for lost of consortium – loss of comfort, society and services of the wife.

Bas Mini Muhibbah v. Abdullah Salim (1983) - A woman was knocked down by a bus, her left leg had to be amputated. As a consequence of her injuries, she developed a personality change. She hated her husband and denied him sexual relations.

The court awarded the husband RM3,000 for loss of his wife services.

Pecuniary loss Pecuniary loss is basically a financial loss or

material loss incurred as a result of death or injury.

It is the loss that can be quantified in financial terms.

Pecuniary loss

Loss of earnings

Medical expense

s

Nursing care

Other expense

s

Loss of earnings Loss of earnings can be divided into two – loss of future

earnings and loss of earning capacity. In Ngooi Ku Siong & Anor v Aidi Abdullah [1985] 1 MLJ

30, Syed Agil Barakbah in the Federal Court stated that there is a different between loss of future earnings and loss of earning capacity. Future loss of earnings or prospective earnings are awarded for real assessable loss i.e. loss that is capable of assessment at the date of the trial. It must be proved by the evidence and not by mere speculation. In loss of earning capacity, it arises where there is a residual risk that the plaintiff might be thrown out of work altogether at some future date. The risk must be real not speculative or fanciful.

Loss of future earnings The plaintiff is entitled to be awarded the

amount that he would have earned in the future and which he has been prevented from earning by the injury.

The present law in Malaysia is governed by section 28A(2)(c). This new law has been introduced by 1984 amendment to the CLA which came into effect on 1st October 1984.

This section provides certain restrictions on the claim for loss of future earnings – which has the effect of limiting the size of awards for certain types of plaintiff.

The requirements

Must be below the age of 55 years

Must be in good health at the time of the injury

Must be receiving earnings by his own labour or gainful activity at the date of his injury

Below the age of 55 If the plaintiff was aged 55 or over – he cannot claim for

loss of future earnings. This requirement may be criticized for it failure to take

into consideration the fact that many senior citizens in Malaysia continue working at the age at 55 or over, especially professionals such as judges, lawyers, doctors and academics.

Tan Bin Hairuddin v. Bayeh a/l Belatat (1990) The respondent was injured in an accident caused by the appellant’s negligence. The accident occurred on 13 August 1985. The respondent was 59 years old at that time.

The trial judge awarded him RM7,560 as pre-trial loss of earnings. This award was set aside by the High Court.

In good health Osman Effendi Mahmud & Anor v Mohd Noh Khamis –

the trial judge rejected the plaintiff’s claim for loss of future earnings on the ground that the plaintiff had not adduced evidence that he had been in good health before the accident.

On appeal the court held that the requirement of ‘good health’ is satisfied when there is no challenge by the defendant either in the pleadings or in cross-examination.

The court also held that in every accident case where it has been established that the plaintiff has been employed immediately before the accident, there is always a presumption that the plaintiff was in good health.

Receiving earnings Section 28A(2)(c) provides that the plaintiff

must be receiving earnings by his own labour or other gainful activity before he was injured.

This provision is intended to exclude an unemployed plaintiff whether young or old.

However the earnings must not be from illegal sources.

Cases Marappan v. Siti Rahmah Ibrahim - One of the

issue raised on appeal before the Supreme Court was whether she was entitled to loss of future earning within the meaning of Section 28A(2)(C ) of the Civil Law Act in view of the fact that at the time of the accident she was then receiving RM345 a month as allowance for being trained as a teacher.

Held: The training undertaken by the respondent to enable her to become a teacher was an activity which has resulted in a gain of RM345 per month for her and this sum of money was therefore earnings contemplated by that section.

Contrast… Dirkje Peiteraella Helma v. Mohd. Noor (1991)

- The appellant was a qualified registered nurse from Holland. She was on holiday in Malaysia when she was injured in an accident. She was a healthy person aged 25 at that time of the accident, but as a result of her injuries she became an invalid. She was on no- pay leave at the time of the accident.

The Supreme Court in interpreting Section 28A(2)(c) held that the plaintiff who was on unpaid leave at the time of the injury was not entitled to claim for loss of future earnings as she was not receiving any earnings at the time of her injury.

Earnings must not be from illegal sources Lee Seng Kee v Sukatno [2008] 4 AMR 405 –

the High Court disallowed damages for loss of future earnings to a plaintiff, a 38 year old Indonesian illegal worker.

On the other hand, in Tay Lye Seng & Anor v Nazori bin The & Anor [1998] 3 AMR 3145 – the Court of Appeal allowed the plaintiff’s claim for loss of earnings although he was working illegally in Singapore after his work permit had expired four months earlier.

Reason – The plaintiff was initially working legally. He had a valid work permit but unfortunately expired four months before the accident.

No consideration – prospect of future increases Section 28A(2)(c)(ii) - ‘in assessing the loss of

future earning the courts will not take into consideration the prospects of future increases in the plaintiff’s earning.’

Chang Ming Feng v. Jackson Lim (1999) - The respondent was and still in an employee of Sarawak Shell. He involved with an accident and was on medical leave for 4 months. After that he resumed work, but he could only perform light duties and was not able to do offshore works any more as an offshore production technician – would earn offshore allowance.

Cont… Plaintiff’s earnings before the accident: Basic salary RM1,657 Offshore allowance RM 775 Total RM2,432►After accident Basic salary RM2,009 Allowance RM 247 Total RM2,256► The Court awarded the plaintiff the different

between his previous salary and current salary.►The increase in plaintiff earnings is actual not

prospective.

Deduction of living expenses The court will deduct expenses from the loss

earning of a living plaintiff or the deceased (section 28A(2)(c)(iii)).

Living expenses refer to expenses incurred in earning the particular income – e.g. meals and refreshment while at work, petrol, maintenance of vehicles, transport etc.

In Chang Chong Foo & Anor v Shivanathan a/l Perumal [1992] 1 AMR 119 –The Supreme Court deducted RM190 per month (petrol and meals) from the plaintiff’s monthly salary of RM310.

Another compulsory deduction is income tax, EPF and insurance premium.

Non-deductable amount Section 28A(1) provides ‘in assessing damages

recoverable in respect of personal injury….there shall NOT be taken into account –

(a) Any sum paid or payable in respect of the personal injury under any contract of assurance or insurance;

(b) Any pension or gratuity, which has been or will or may be paid as a result of the personal injury; or

(c) Any sum which has been or will or may be paid under any written law relating to the payment of any benefit or compensation whatsoever in respect of the personal injury..

Cont… Ward v MAS (1991) – The appellant was a pilot. He

suffered serious injury as a result of an emergency crash landings. He was awarded the total amount of general and special damages RM301,250 but the trial judge ordered the deduction of RM300,000 which the appellant recovered from an insurance company (a general accident policy taken by the employer for the benefit of the appellant and other employees). Appellant appealed to the Supreme Court.

Held: Such insurance benefit cannot be deducted from the amount of damages awarded to the appellant. Therefore the appellant was entitled to get the full sum of RM301,250.

The calculation Section 28A(2)(d) introduced a new method of

calculation called ‘fixed multiplier method’.

Gross annual loss (GAL) – Compulsory deduction + living expenses = Nett Annual Loss (multiplicand)

E.g. RM24,000 – RM10,000 = RM14,000

1st stepMultiplicand(Nett Annual

Loss)

2nd stepmultiplier

Future loss of earnings

The Multiplier Multiplier is a figure which represent a number of

years b which the multiplicand must be multiplied in order to calculate the future losses.

E.g. a multiplier for 40 years old plaintiff is 55- 40\2 = 7.5

Multiplier

A person who was at the age of 30 years or below = 16

Age between 31-54 = 55 –

current age\2

Nursing care Nursing fees for the future can be claimed for example

the cost of hiring a private nurse, helper etc. In Marappan v. Siti Rahmah – The plaintiff was awarded

the sum of RM67,200 for the loss of future care, based on multiplicand of RM380 per month and a multiplier of 16 years.

Nursing care also includes the cost of paying a reasonable sum to a husband, wife or other person who gives up work to give fulltime care to the plaintiff.

Housecraft v. Burnett (1986) - the upper limit should be the commercial rate of hiring someone to perform the services and subject to this, the sum should be one which is sufficient to enable the plaintiff among other things, to make reasonable recompense to the relative.

Medical expenses A plaintiff is entitled to any reasonable

expenses he may have incurred from the date of injury up to the date of trial and also the expenses he may incur in future.

Issues on claim for medical expenses;(a) Government hospital v private hospital?(b) Local treatment v overseas? Chai Yee Chong v Lew Thai (2004) – it was

held that the plaintiff is entitled to claim in full for medical cost at a government hospital. For treatment at a private hospital, the plaintiff must prove that he is justified to seek such treatment and the amount is reasonable.

Justifications(a) That particular treatment is not available at the

government hospital; or(b) The treatment is available – but not available

within a reasonable period considering the urgency of the treatment; or

(c) The treatment at the government hospital though available, is grossly inadequate (e.g. lack of trained doctor).

► Romuloo v Tan Seng Kee – the court declared that to get the best medical treatment is a basic constitutional right of every citizen of this country.

► In this case the court allowed the plaintiffs claim for medical expenses at Singapore.