2. Question Two
Mr John, 43, was a General Manager in a prosperous company
in Melaka. He stayed in a bungalow in Tiara Golf Resort with
his wife Mary and three children. He was also a member of
Tiara Golf Club and he played golf almost every weekend. A
couple of months ago, while driving his car to work, Mr John
was knocked down by Zack, who drove beyond the speed
limit. Consequently, Mr John was thrown out of the car and
has broken both his arms and legs. Furthermore, he also
suffered severe head injuries due to the accident.
After being discharged from the hospital, he was bedridden for
6 months. Her wife has to give up his job to take care of him.
Since then, he became permanently disabled as his left leg
was paralysed. Preliminary investigation shows that Mr John
failed to fasten the seatbelt. Zack contended that the impact
of the accident could be reduced should Mr John fastened the
seatbelt properly. Mr John intends to claim for compensation
from Zack. Advise him on the remedies available for him
3. Facts
• Zack drove beyond speed limit and knock down
Mr John
• Mr John’s arms and legs both broken and he
suffers severe head injuries
• Bedridden for 6 months, wife gave up job, he
become perm paralysed due to his left leg
• Investigation show Mr John failed to fasten
seatbelt, Zack claim impact can be reduced if he
had fastened seatbelt
• John want to claim compensation
4. 1st Issue: Can Mr. John claim for the
compensation?
• Yes, Mr. John can claim under the Tort of
Damages.
• General Rule: only one cause of action for each
tort and must be awarded in a single lump sum
• Continuing injury – actionable per se and gives
rise to a fresh cause of action from day to day
• Based from the fact of the question. Gives rise to
fresh cause of action every day since he cannot
go to work, cannot do his daily activities like
before.
• Therefore several ways to claim.
5. 1. Claim under Nominal damages.
•
The damages are awarded when P proves that D has
committed a tort, even though P has not suffered any actual loss.
The plaintiff is awarded damages in recognition of the fact that
there has been a violation of his right. Nominal damages also
awarded in cases where damage is shown but is not sufficiently
proved. A nominal damage are only grated to torts which are
actionable perse, and does not necessarily involve a small sum of
money.
•
Guan Soon Tin Mining Co v Wong Fook Kum [1969] 1 MLJ 100.
Court held that if the liability the defendant is established without
the plaintiff having suffered any damage, he will only receive
nominal damages.
•
Based from the fact, since continuous injury is actionable per
se, so Mr. John can claim it under Nominal damages.
6. 2. Claim under Personal Injury
•
Based from the fact, Mr. John can claim through
pecuniary losses and non-pecuniary losses.
•
Pecuniary losses
Chang Ming Feng & Anor v Jackson Lim @ Jackson
ak Bajut [1999] 1 AMR 575
State that losses can claim for loss earnings or loss for
earning or loss of future earnings.
Pang Ah Chee v Chong Kwee Sang [1985] 1 MLJ
153, FC
Any expected expenses as a result of the injury such as
medical and nursing bills and domestic help are also
recoverable
7. •
Non- pecuniary losses.
That claim could be for injury itself, pain and
suffering and loss of amenity or enjoyment of life.
Claim under Personal Injury (Civil Law Act 1956)
•
Section 28A (1). ) In assessing damages recoverable
in respect of personal injury which does not result in
death
Section 28A (2) (a) (b) (c) and (d)
Since Mr. John suffered severe head injuries due to the
accident, bedridden for 6 months after being discharged
from the hospital, her wife has to give up his job to take
care of him and became permanently disabled as his left
leg was paralyzed. Mr. John can claim pecuniary losses
under Tort or Civil Law Act for medical bill and loss for
future earnings due he cannot work anymore and his wife
have to stop work in order took care of him. And because
of accident, he loses enjoyment of life.
8. 3. Claims for pure economic loss
•
If loss caused by the defendant negligent act, recovery
is possible provided it is foreseeable.
•
Donoghue v Stevenson
•
(Foreseeable test or objective test, Court will
determine DOC based on the Hypothetical question, would a
reasonable man, who is in the same circumstances as the
defendant, foresee that his conduct will adversely affect the
plaintiff? If yes, defendant has DOC)
•
Steven Phoa Cheng Loon v Highland Properties Sdn
Based from the fact, Zack will be liable because Zack, who
drove beyond the speed limit as any reasonable man will have
knowledge that if drove the beyond speed limit capable to
injured any person such accident thus has Duty Of Care
9. 4. Claim under Special Damage
•
•
•
•
•
•
•
•
Special damage is referring to damage or loss which law does not
presume to arise from the tort.
The plaintiff must give notice in his pleading that Plaintiff claiming
for special damages, which full detail and particular. It must specifically
plead and strictly proved.
Special damages may be described as something particular, other
than the general damages that are suffered by the plaintiff such as
medical or hospital bills or the loss earning right up to the date of trial.
Special damage also need plaintiff to prove of damage that has been
cause by defendant.
Special damages are calculated from the date the tort occurred until
the time the case was brought to court
Pang Ah Chee v Chong Kim Swee.
Chang Ming Feng & Anor v Jackson Lim.
Based from the fact, Mr.John can claim under Special Damage but,
Mr.John must fulfill the requirement in order to success the claim
10. 2nd Issue:Whether Mr John’s wife can claim remedy or
compensation from Zack for the income or salary lose
during the period she give up job and take care her
husband
• From the fact above, Mr John’s wife can claim remedies through
judicial remedies and get the damages compensated.
• Mr John’s wife can use the principle of restitutio in integrum to
claim the remedies. As under thee rule, the damages are to be
assessed on a compensatory basis, which is to restore the victim to
his or her position prior to the commission of the tort.
• As we can refer to the case of Living Stone V Rawyards Coal Co, it
was ruled that the restitutio in integrum is the sum amount of
money which would put the victim who had been injured, or had
been suffered, in the same position as he would have been in if he
had not sustaining or suffering from the accident.
11. • Applying this principle, a subjective test would be required if it involve
vague or unclear estimation of damages for pain, suffering, future loss of
amenity. The element that need to be considered is what would be the
best for the victim or plaintiff in the circumstances as not necessary
money as the only for restoring the status quo.
• From this case, MrJohn’s wife can use this principle to claim the future
lose of salary which she need those sum of money to take care her
family and husband during that period of time.
• Besides that, she can also claim under personal injuries. Under this
principle, she can claim loss or future earning which is the future income
if she no need to give up her job in order to take care her husband .
• In short , from this case, Mr John’s wife can claim the remedies for
future lose under restitutio in integrum and personal pecuniary injury if
the court would suffice with the evidence that come into consideration.
12. 3rd Issue: Whether Zack’s claim is valid
or not?
• -Based on the facts of the situation given, it clearly indicates that one of
the factors that caused Mr. John's leg to be paralysed is that he did
fasten his seatbelt while his was driving which caused a great impact.
• -So from here, we say that Mr. John was negligent in this circumstance
because as driver, he should fasten his seatbelt while driving. So from
here, Zack could raise the defence of contributory negligence.
• - In the case of “Murphy v Culhane”, the plaintiff’s husband was
assaulted and killed by the defendant who was found guilty of
manslaughter. In civil action by the plaintiff against the defendant, it
was raised on the defendant’s behalf that the plaintiff’s husband
contributed to his own death. The issue arose was whether the
defendant’s admissions to committing assault and killing the deceased
entitled him to raise any defence in a civil proceeding. The court
answered in affirmative; as irrespective of the admission of guilt by the
defendant, he was entitled to raise defences of volenti or contributory
negligence in civil proceedings post his conviction.
13. • Basically there are three elements of contributory negligence
which are :
• The plaintiff was injured due to the risk which the Plaintiff’s
own negligence.
• The plaintiff’s negligence significantly denoted to his own injury
• There is fault the plaintiff’s part. The term “fault “ can be seen
in section 12(1) and section 12(2) of the Civil law Act.
• So if we refer carefully to the facts of the situation, it clearly
shows that it is Mr. John’s fault for not fastening his seatbelt
while driving. Since there is contributory negligence on the
part of Mr. John, he cannot claim for the maximum amount of
damages for his personal injuries that has occurred on him.
• The description for personal injury is clearly stipulated at
Section 28(1) of the Civil Law Act. under pecuniary losses
