one of the chapters in LAW 549 - Remedies (Torts) Faculty of Law, Universiti Teknologi MARA, MALAYSIA

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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
2

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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