Public Prosecutor v Fatimah [1960] MLJ 109 High Court, Kota Bahru (Hepworth J).

See CUSTOMS AND EXCISE, Vol 6, para 173.

Public Prosecutor v Lee Kee Chang [1974] 2 MLJ 15 High Court, Ipoh (Chang Min Tat J).

See CUSTOMS AND EXCISE, Vol 6, para 174.

Public Prosecutor v Kedah & Perlis Ferry Service Sdn Bhd [1978] 2 MLJ 221 High Court, Alor Star (Syed Agil Barakbah J).

See CUSTOMS AND EXCISE, Vol 6, para 88.

On 15 August 1991, the respondent discharged into Keppel Free Trade Zone 950 cartons of Marlboro soft pack cigarettes with a total invoiced value of US$227,430. The respondent claimed that the cigarettes were not meant for retail in Singapore but intended that the same be stored in their licensed warehouse to await transhipment. Hence, on 17 August 1991 which was a Saturday, all 950 cartons of cigarettes were stuffed in a container and checked out of the Port of Singapore Authority (PSA). Prior to checking out, customs at the PSA issued the relevant cargo clearance permit. The respondent agreed to comply with the conditions as stated in the permit. In particular, there was Condition A7 which stated that 'Goods removed but not exported/transhipped or bonded in a licensed warehouse or received by the claimant of duty exemption on the same day are kept only in a customs transmit bond or a place approved by the proper officers of customs.' The container was then sealed with a customs seal and locked with a customs padlock. Thereafter, the container was towed away from the customs checkpoint for the respondent's warehouse. By prior arrangements, the respondent and customs officers had also agreed to unstuff the container under customs supervision on 19 August 1991 which was the following Monday. The container was subsequently parked in front of the respondent's licensed warehouse instead of within its compound. When the time came for unstuffing on 19 August 1991, the customs seal affixed to the container was found to be missing. The customs padlock was also cut and discarded. Upon unstuffing in the presence of the police and customs officers, it was discovered that 409 cartons of cigarettes were missing; they were never recovered. The judge below found that the respondent had not in any way colluded with anyone to remove the goods from customs control. He held that, in so far as control of the goods was concerned, it was at all times vested with the customs. Although there had been a breach of Condition A7, this did not warrant an extreme inference that the goods were removed by the respondent from customs control. He also found that there was no act of importation by the respondent with respect to the goods. The goods were simply stolen before they could be sold or transhipped. He held that, to tax the respondent for the goods, it must be established that there was wilful removal of the goods by the respondent or some collusion on its part. Since neither was present, no tax was payable. (See [1996] 2 SLR 179.) The appellant appealed.

Held, allowing the appeal: (1) by parking the container outside the licensed warehouse, there was a clear breach of Condition A7 of the cargo clearance permit, whether it be issued pursuant to reg 4 or the old s 34(1) of the Customs Act (Cap 70). Since the goods had, by definition in s 3(1) of the Customs Act (Cap 70, 1995 ed), become 'uncustomed' due to such a breach, then by virtue of the proviso in the definition of 'import' in s 3(1), they must thereby be considered imported; (2) under s 3(1) of the Customs Act (Cap 70, 1995 ed), the proviso in the definition of 'import', read together with the definition of 'uncustomed goods', led to a conclusive presumption. The effect of this was that once the goods were proved to be 'uncustomed' goods, they were considered to be imported for the purpose of the levy of customs duties, even if it could be proved that the goods were 'bona fide in transit'; (3) s 3(2) of the Customs Act (Cap 70, 1995 ed), which provided for when customs were deemed to have control over the goods, was in effect a scheme of controlled removal of goods deposited or held in any of the listed designated places, since removal could be effected only with the permission of the proper officer of customs. Hence, the legal control of the goods was retained by customs, even if customs had no physical control over the goods; (4) on the facts, the goods were not removed from customs control, even though the container was parked outside the licensed warehouse. At all relevant times, the customs officers had the right and authority to direct the respondent as to what should be done with the goods. Thus, s 16(1) of the Customs Act (Cap 70, 1995 ed) applied, and the Director-General would have a discretion to determine the amount of abatement on the customs duty payable.

Attorney General v Transmax Marketing Pte Ltd [1996] 3 SLR 297 Court of Appeal, Singapore (M Karthigesu and LP Thean JA, Lai Kew Chai J).

If damages form part of the relief sought, they should be distinctly claimed.

Mokhtar v Arumugum [1959] MLJ 232 Court of Appeal, Federated Malay States (Thomson CJ, Smith and Ong JJ).

The wording of s 7(5) of the Civil Law Ordinance 1956, 'not more than one action shall be brought...' means that not more than one action may be brought to the final finding or award, and the subsection would not bar further proceedings brought where the previous action had been discontinued under O 26 of the Rules of the Supreme Court as a result of technical difficulties, as in this case, because there has been no finding on the issue of negligence nor has there been a final award.

Amaravathy v Abdullah [1960] MLJ 298 High Court, Johore Bahru (Adams J).

On 1 April 1977, the appellant ('the plaintiff') was knocked down by the respondent ('the defendant') who was riding motor cycle No AF3571 ('the motor cycle'). The plaintiff suffered personal injuries. In August 1979, he engaged solicitors and called on them again in early 1982. On 31 March 1982 they wrote to the police for the relevant police reports in order to ascertain the identity of the defendant. On the same day, the solicitors wrote to the Registrar and Inspector of Motor Vehicles ('the RIMV'), Perak, to ascertain the identity of the insurers of the motor cycle. On 5 May 1982, the RIMV, Perak informed the plaintiff's solicitors that the relevant file was in Selangor. The solicitors then wrote to the RIMV, Selangor, on 18 May 1982. On 8 June 1982, the RIMV, Selangor wrote to the defendant, requesting him to supply insurance particulars of his motor cycle but the defendant did not reply. The plaintiff's solicitors sent an AR registered letter on 15 June 1982 to the defendant but it was returned undelivered. On 10 August 1982, the plaintiff's solicitors wrote to the Motor Insurer's Bureau of West Malaysia ('the MIB'), requesting them to ascertain the identity of the insurers of the motor cycle. Although a circular was sent out by MIB to all insurance companies on 16 August 1982, MIB was still unable to ascertain which insurance company was the insurer by 31 March 1983 when the six-year limitation period expired. On 28 March 1984, the plaintiff was informed by MIB that the motor cycle was insured with East West Insurance Bhd ('the insurance company'). On 11 April 1984, the plaintiff's solicitors wrote to the insurance company, requesting them to confirm whether they were the insurers for the motor cycle. Without confirming whether they were the insurers for the motor cycle, the insurance company replied on 13 June 1984 that they would seek their solicitors' opinion. On 20 October 1984, the insurance company's solicitors, without admitting that the insurance company were the insurers, wrote to the plaintiff's solicitors to the effect that the matter was time-barred. It was only on 23 July 1985 that the insurance company's solicitors said that the insurance company had refused to take over the conduct of the defence, contending that the claim was time-barred. Pending the hearing of the question raised in another similar case by the plaintiff's solicitors in the Supreme Court as to whether time should run in a case where the plaintiff did not know the identity of the insurer's of the defendant's motor vehicle, the defendant's solicitors agreed that the plaintiff should not file any claim until the Supreme Court had given its decision. The Supreme Court decided that the plaintiff should file his claim in the High Court and the defendant there could then raise the issue of limitation, and argue the issue at the proper trial of the claim. On 20 May 1986, the plaintiff gave the statutory notice to the insurance company under s 80 of the Road Traffic Ordinance 1958 and filed his claim for damages against the defendant on 22 May 1986. The learned magistrate dismissed the claim on the ground that the claim was time-barred. The plaintiff appealed. It was contended on behalf of the plaintiff that there was fraud on the part of the insurance company by concealing the fact that they were the insurers of the motor cycle, and as such, the period of limitation should not begin to run until the discovery of the fraud.

Held, allowing the appeal: (1) 'cause of action' had to be distinguished from 'right of action'. Section 6 of the Limitation Act 1953 dealt with 'cause of action' and s 29 of the same Act dealt with the 'right of action'. Section 29 provided that the period of limitation shall not begin to run in any case where the right of action was concealed by the fraud of the defendant, or his agent, until the plaintiff had discovered the fraud, or could by reasonable diligence have discovered it; (2) when considering s 29(b) of the Limitation Act 1953, where it was shown that the right of action of the plaintiff was concealed by the fraud of the insurance company, that concealment should be treated as that of the defendant in the action; (3) the court was satisfied that although the cause of action in this case accrued on the date of the accident, ie 1 April 1977, the right of action of the plaintiff had been concealed by the fraud of the defendant and the insurance company. It was most unconscionable for the insurance company to conceal itself from the knowledge of the plaintiff in order to take advantage of the limitation period, and to prevent the plaintiff from proceeding against the defendant. The plaintiff could only enforce this right of action on 28 March 1984 when the plaintiff was first told by the MIB of the name of the insurance company which had insured the defendant's motor cycle; (4) 'fraud' as envisaged under s 29 of the Limitation Act 1953 was by no means limited to common law fraud or deceit. No degree of moral turpitude was necessary to establish fraud within this section. The phrase covered conduct which, having regard to some special relationship between the two parties concerned, was an unconscionable thing for the one party to do to another party; (5) what had been done by the insurance company amounted to fraud under s 29 of the Limitation Act 1953, and by that fraud, the insurance company had concealed the right of action of the plaintiff to sue the defendant within the six-year limitation period. Time therefore began to run from 28 March 1984 when the plaintiff was informed of the name of the insurers, not from 1 April 1977, the date of the accident. Accordingly, the claim was not time-barred.

Sivapiran a/l Sabapathy v Lim Yoke Kong [1992] 2 MLJ 381 High Court, Kuala Lumpur (Eusoff Chin J).

Affirmed on appeal. See [1992] 2 MLJ 571. The appeal of the defendant to the Supreme Court vide Civil Appeal No 02-537-90 was dismissed on 20 May 1992 by the court (comprising Harun Hashim, Mohamed Azmi and Peh Swee Chin SCJJ).

The plaintiff instituted action against the defendant claiming damages for the benefits of the dependants and estates of the deceased victims of a motor accident. The claims were made pursuant to ss 7 and 8 of the Civil Law Act 1956. The plaintiff alleged that the accident was caused solely by the negligence of the defendant. In his statement of defence, the defendant alleged that the accident was caused wholly or in part by the negligence of one of the deceased victim of the accident who was the rider of the motor cycle in question. Two and a half years after the institution of the suit by the plaintiff, the defendant applied to amend his statement of defence to include a counterclaim against the estate of that deceased victim for contributions pursuant to s 10(1)(c) of the Civil Law Act 1956 and O 20 r 5 of the Rules of the High Court 1980. The plaintiff opposed the application on the ground that the defendant was time-barred by s 8(3)(b) of the Civil Law Act 1956 from instituting the proposed counterclaim as the action therein was based on tort.

Held, allowing the defendant's application: (1) in the instant case, the proposed counterclaim sought to be instituted by the defendant was not grounded on any tort committed by the deceased victim in question but rather for contribution based on the failure on the part of the deceased victim, in his own interest to take reasonable care of himself and thereby contributed, by his want of care, to his own injury; (2) although the cause of action for contribution under s 10(1)(c) did not arise until judgment in action, the claim for contribution was subsisting within the meaning of s 8(4) of the Act. Furthermore, the statutory right of contribution from a co-tortfeaser under s 10(1)(c) of the Act was a right sui generis conferred by statute and was not a cause of action in tort and was, accordingly, not barred by s 8(3)(c) of the Act. In any event, the defendant's claim for contribution could not be barred since the deceased victim, had he still been living, might have been liable if he had been sued. For the above reasons, the court ruled that the defendant could amend the statement of defence to institute the proposed counterclaim.

Lee Sen Lan & Anor v Mah Kwee Hock [1990] 2 MLJ 157 High Court, Kuala Lumpur (Lim Beng Choon J).

The appellant was an employee of the second respondent, the owner of a lorry which was driven by the first respondent. The appellant sustained injuries in a motor accident and the learned trial judge found that the first respondent was solely to blame for the accident. The second respondent was a contributor to the Employees Social Security Scheme under the Employees Social Security Act 1969 (Act 4). The learned judge found that the injuries suffered by the appellant were employment injuries as defined by the Act and he held that the appellant was not entitled to recover damages under the common law from the employer. The learned trial judge also dismissed the appellant's claim against the driver, the first respondent. The appellant appealed.

Held: (1) by virtue of ss 31 and 42 of the Employees Social Security Act 1969, an insured person is precluded from recovering damages from the employer in respect of an employment injury sustained by him as an employee under the common law or any other law for the time being in force; (2) in the absence of express exclusion of claims against fellow employees in the Employees Social Security Act 1969, the right to recover damages at common law from the first respondent, a fellow employee, remains; (3) in the absence of any statutory provision to the contrary, payments recovered by the appellant under the Act are, in common law, not to be taken into account so as to reduce the damages recoverable by the appellant.

Tan Peng Loh v Lee Aik Fong & Anor [1982] 1 MLJ 74 Federal Court, Kuala Lumpur (Lee Hun Hoe CJ (Borneo).

The plaintiffs and the first defendant were involved in a road accident in which the first plaintiff's husband ('the deceased') was killed. The first defendant was driving the military truck which collided with the plaintiffs' car as servant or agent of the second defendant. The plaintiffs claimed, inter alia, for the deceased's loss of earnings and for their injuries. According to the evidence, the accident took place on the plaintiffs' side of the road and the plaintiffs relied on the doctrine of res ipsa loquitur. The defendants, however, pleaded that the deceased had contributed to the accident.

Held, allowing the plaintiffs' claim: (1) the doctrine of res ipsa loquitur was not a principle of substantive law but a rule of evidence. In this case, the plaintiffs' car was on its correct side of the road at the material time and for the accident to have occurred simply meant that there was encroachment by the first defendant into the path of the plaintiffs' car. It followed therefore that negligence should be placed entirely on the first defendant. As the negligence of the defendants was established, the doctrine of res ipsa loquitur did not apply; (2) the plaintiffs' claim for special damages was not granted as they had failed to prove them strictly. However, as agreed between both parties, RM134 was granted for the purchase of police and medical reports. Interest was granted at 4%pa from the date of accident until the date of judgment and thereafter at 8%pa until realization; (3) the first plaintiff, as the spouse of the deceased, was granted RM10,000 for bereavement under s 7(3A) read with s 7(3B)(a) of the Civil Law Act 1956 ('the Act'); (4) in assessing the loss of earnings, the court took into account the living expenses of the deceased at the time of his death. The evidence showed that the deceased was earning RM1,100 per month and that he purchased two or three shirts a year at RM90 per year. Monthly, the deceased would therefore utilize about RM10. Thus, the figure would be: RM1,100 RM10 = RM1,090 per month. The multiplier would be dependant on s 7(3)(iv)(d) of the Act and, as the deceased was 35 years of age at the time of his death, the multiplier was 10. Therefore, the loss of earnings awarded was RM130,800; (5) RM300 for the soft tissue injury; (6) the second plaintiff, a boy of four years of age, was awarded RM500 for pain on his right cheek; (7) as for the first plaintiff's injuries, the court awarded RM1,500 for cerebral concussion; RM300 for the 2cm-long abrasion on her cheek;interest on general damages was awarded at 6%pa from the date of filing to the date of judgment.

Noor Famiza bte Zabri & Anor v Awang bin Muda & Anor [1994] 1 MLJ 599 High Court, Taiping (Abdul Malik Ishak JC).

This was an appeal against the decision of the Federal Court ([1966] 2 MLJ 4) which dismissed an appeal from the High Court ([1965] 2 MLJ 198) giving judgment for the respondent in a claim brought by the appellants for damages arising out of a road accident. The facts showed that the collision happened because the taxi belonging to the respondent which was involved in the accident veered across the road as a result of a fracture occurring in the connection between the steering mechanism and the near-side front wheel. The fracture caused a complete failure of the steering and braking systems with the result that the taxi became out of control. The appellants claimed damages for (a) negligence; (b) breach of statutory duty.

Held, dismissing the appeal: (1) on the facts, the collision happened because of a latent defect in the taxi of which the respondent without any negligence on her part (or on the part of anyone for whom she was responsible) was unaware and there was no evidence that the respondent or her servant or agent had been guilty of negligence in relation to the maintenance of the taxi; (2) any breach of the Motor Vehicles (Construction and Use) Rules 1959 did not give the appellants a cause of action against the respondent.

Tan Chye Choo & Ors v Chong Kew Moi [1970] 1 MLJ 1 Privy Council Appeal from Malaysia (Lord Morris of Borth-y-Gest, Lord Wilberforce and Sir Charles Russell).

This was an application for an order that interlocutory judgment entered herein in default of appearance on 25 February 1976 and the final judgment obtained consequent thereon on 11 March 1977 be set aside on the ground that the interlocutory judgment was a nullity or alternatively on the ground that it was irregularly obtained. The application further prayed that the first and second defendants should have leave to defend and for the costs of the application. It was argued in this case that the Brunei High Court (Civil Procedure) Rules 1970 did not permit the entry of interlocutory judgment for damages for pain and suffering and loss of amenities.

Held: (1) under the rules of procedure, interlocutory judgments may be entered in an action for tort even where the damages sought are for pain and suffering and loss of amenities and the practice of entering interlocutory judgment in running down cases in default of appearance which has hitherto been accepted as usual in Brunei should continue; (2) in this case, there was good reason for setting aside the judgment in that the statement of claim was admittedly in error in its description as to how the accident occurred; and therefore the interlocutory and final judgments would be set aside on condition, inter alia, that the defendants should enter appearance within 30 days and pay into court the sum of RM25,000 (to abide the result of the action) together with a sum of RM4,000 on account of costs thrown away as a result of the defendant's failure to appear.

Simpol bin Ahmad v Koh Bee Tin & Anor [1978] 1 MLJ 10 High Court, Bandar Seri Begawan (Leonard J).

In this action the plaintiff sued for loss of expectation of life. The issue for determination was whether the action was subject to the provisions of the Limitation Ordinance 1953 or the Fatal Accidents Enactment.

Held: the right to sue for damages for loss of expectation of life arising from personal injuries caused by negligence survived to the plaintiff by virtue of s 82 of the Johore Probate and Administration Enactment (No 22) which had the same effect as the Law Reform Act 1934. The period of limitation applicable was therefore that contained in s 6 of the Limitation Ordinance 1953, which was six years, and the action was not barred.

Wong Chin Lin v Teng Sum Bee & Anor [1957] 4 MC 17 High Court, Johore Bahru (Hepworth J).

The plaintiff, the personal representative of the deceased, claimed damages on behalf of the widow and estate of the deceased which arose out of a collision between a tongkang and a motor lighter (both internal water craft) within Singapore waters. The first defendant was alleged to be the servant or agent of the second defendant, the owner of the tongkang, while the deceased was the steersman of the lighter. Before the date of the trial, the defendant applied for and obtained permission to amend their defence to add an additional ground that the plaintiff's action was time-barred under s 8 of the UK Maritime Conventions Act 1911 (the 'MCA'). The plaintiff then applied by motion to the court for certain preliminary issues to be decided before all other matters in the action, namely, whether the MCA was part of Singapore law or only s 1 was; whether the MCA applied to a collision occurring in Singapore waters between two Singapore-registered internal water craft; whether the limitation period found in s 8 of the MCA was applicable to a common law action for negligence; if this was the case, whether the court would exercise its discretion under the proviso to s 8 of the MCA to extend the limitation period.

Held: (1) the MCA was intended to give effect to two conventions, and Singapore on becoming an independent state informed the Depositary States of the Conventions that she accepted the conventions; (2) the MCA applied to the dominions of the United Kingdom, which Singapore was at the relevant time part of; (3) since there was no United Kingdom or Singapore statute repealing the MCA, it was still part of Singapore law; (4) the Contributory Negligence and Personal Injuries Act (Cap 54) in no way repealed any part of the MCA and in fact it recognises the applicablity of the MCA; (5) although the MCA was not listed as one of the Imperial statutes that applied to Singapore in Volume 8 of the 1955 Revised Edition of the Laws of Singapore, Volume 8 was not intended to be exhaustive; (6) if Parliament intended any other interpretation, it could have easily so enacted; (7) although the MCA was intended to give effect to two conventions, there was nothing to prevent Parliament widening the scope of the MCA; (8) the MCA therefore applied to a collision in Singapore waters where both vessels were inland water craft and both parties were Singaporeans; (9) the words 'no action' in s 8 of the MCA should in no way be restricted to admiralty actions for this would contradict the plain meaning of the words; (10) the limitation periods stated in the Limitation Act (Cap 163) did not apply as s 3 of this Act provided that the periods stated therein would not apply where another period was prescribed by any other written law, and s 8 of the MCA did so prescribe; (11) s 9(3) which extended the MCA to all cases made it clear that the MCA applied to the instant case, and it was therefore clear that P's action was filed out of time; (12) in exercising its discretion to extend the limitation period, the court should take into account the degree of blameworthiness for the delay in starting the action, the length of the delay, whether the circumstances causing the delay were beyond the control of the party which had been dilatory, and whether justice would be done between the parties if the limitation period was extended; (13) there had to be substantial grounds or special reasons relating to the circumstances of the late writ issue for the court to extend the limitation period. On the facts, the parties and the insurers of the tongkang had entered into negotiations before expiry of the limitation period but the insurers had never requested P to withhold action or in any way induced quiescence. The mere fact that there were pending inducements were not per se a good ground to grant an extension under s 8; (14) although the MCA was intended to give effect to the Collision Convention 1910 which only applied to collisions where at least one of the ships involved was an ocean-going vessel, there was no reason to restrict the meaning of the word 'vessel' in s 1 of the MCA to refer only to ocean-going vessels or to restrict the words 'any person' in s 2(1) to mean that one of the parties must be a citizen of another country. The words were clear and must be given their plain meaning;if due to a miscommunication between the judge and counsel, the judge did not hear all the evidence before pronouncing judgment, it was within the judge's powers to recall the parties to hear the evidence and to alter the decision anytime before the judgment is perfected.

Tan Ah Yeo & Anor v Seow Teck Min & Anor [1989] 2 MLJ 3 High Court, Singapore (Chao Hick Tin JC).

[Annotation: Reversed on appeal see [1991] 2 MLJ 489.]

See evidence, para IX [81].

Ng Aik Kian & Anor v Sia Loh Sia Civil Suit No 23-226-1992—High Court, Johor Bahru (Abdul Malik Ishak J).

In an action for damages, it is for the plaintiff to prove his damage; it is not enough to write down the particulars and throw them at the head of the court, saying: 'This is what I have lost; I ask you to give me these damages'. He has to prove it.

Sum Kum v Devaki Nair & Anor [1964] MLJ 74 Federal Court, Singapore (Thomson LP, Wee Chong Jin CJ (Singapore).

This was an appeal against the judgment of the learned trial judge in dismissing a claim for personal injuries arising out of a collision between the defendant's car and the plaintiff's car. At the trial, the plaintiff called evidence to show that the defendant was negligent and in addition, he raised the principle of res ipsa loquitur, as the facts showed that the defendant's car suddenly turned across Mountbatten Road on to its wrong side of the road and there collided with the plaintiff's car which was being driven in a normal manner on its correct side in the opposite direction. The learned trial judge held on the facts that the plaintiff had failed to prove negligence and dismissed the claim.

Held: (1) the principle of res ipsa loquitur applied in this case and the onus was therefore on the defendant of proving that he was not negligent and of rebutting the prima facie case established against him by the res ipsa loquitur principle; (2) the defendant had on the facts failed to discharge the onus on him and therefore the plaintiff should be awarded damages for the personal injuries sustained by him. Per Whyatt CJ: 'This doctrine (res ipsa loquitur) is sometimes referred to as a principle of law, but it is, in fact, no more than a rule of evidence of which the essence is, as Lord Radcliffe pointed out in Barkway v South Wales Transport [1950] AC 185; [1950] 1 All ER 392, that an event which in the ordinary course of things is more likely than not to have been caused by negligence is by itself evidence of negligence.'

Menon v Pigeonneau [1957] MLJ 85 Court of Appeal, Singapore (Whyatt CJ (S).

Per Choor Singh J: 'In my opinion, when a plaintiff claims damages for injuries received in a road accident, he must, in his statement of claim, give sufficient particulars to enable the defendant, first, to identify the accident in question and, secondly, to know what exactly is the case he has to answer.'

Gwee Kim Bock v Singapore Glass Manufacturers Co Ltd [1966] 2 MLJ 292 High Court, Singapore (Choor Singh J).

Samsuri bin Saad & Anor v Chew Kit Toh (t/a Kit Thong Woh Hup) and another appeal [1996] 1 MLJ 576 High Court, Taiping (Abdul Malik Ishak J).

See CIVIL PROCEDURE, para 157.

The plaintiff, a 52-year-old lorry driver, was seriously injured by a motor van driven by a servant of the defendants, and as a result of the accident he was permanently incapable of working. The defendants admitted negligence, but denied liability on the ground that the plaintiff had recovered compensation payable under the Workmen's Compensation Ordinance. It was urged by the defendants that partial recovery of damages against a third party.

Held: (1) there was no evidence that the moneys the plaintiff received from his employer were received by him as workmen's compensation payments; (2) (obiter) the word 'recover' in s 20 of the Workmen's Compensation Ordinance should be construed as recover as a whole and not in part. Quantum of damages considered.

Low Swee Fong v Gammon (Malaya) 1959 Ltd [1962] MLJ 295 High Court, Singapore (Wee Chong Jin J).

This was a claim for damages by the administrator of the estate of Ter Hong Hui, deceased, on behalf of the widow and infant son who were dependants of the deceased. It was alleged that the death of the deceased was due to the negligent driving of the first defendant who was the servant and agent of the second defendant. The deceased was at the time of his death employed as a lorry driver by a merchant who had taken out a Workmen's Compensation Insurance Policy for him. The deceased's father had applied to the Commissioner for Labour for payment of compensation to the dependants of the deceased. An inquiry was held and orders for compensation to the widow and the son were made. The widow had not attained the age of majority at the date of the inquiry. The defence in the action was based on s 20 of the Workmen's Compensation Ordinance in that compensation had already been applied for under the Ordinance.

Held: (1) no effective election had been made in this case as the widow was unaware of her common law right and could not therefore have made a valid election; (2) as the Commissioner for Labour had failed to record the agreement for payment of compensation, there was in effect no agreement on the record and even, if there was it was not legally binding on the widow who was still an infant; (3) the mere fact that the widow had pursued one of two alternative remedies in ignorance of her rights will not prevent her from afterwards pursuing the other and therefore judgment must be given in favour of the plaintiff.

Chai Kok v Wong Yit Chen & Anor [1964] MLJ 441 High Court, Kuala Lumpur (Ong J).

The plaintiff, a stevedore employed by the Singapore Harbour Board, was seriously injured when some bales of rubber fell on him while he was working in the hold of the defendants' vessel. He accepted and received S$12,780 as compensation from his emloyers under the Workmen's Compensation Ordinance in full settlement of his claim. He now commenced proceedings against the owners of the vessel in which the accident occurred. The main point for consideration for the court was whether the plaintiff had recovered compensation from his employer within the meaning of s 20(a) of the said ordinance.

Held: as the payment by the Singapore Harbour Board and the acceptance by the plaintiff were entirely unqualified and unconditional the plaintiff cannot now recover damages from the defendants.

Kahu Illias v NV Vereenigde Nederlandsche Scheepvaartmaatschappij [1961] MLJ 275 High Court, Singapore (Buttrose J).

On 25 February 1985 the plaintiff issued a writ by his next friend claiming damages from the defendants, his former employers, for injuries suffered by him whilst at work on 7 March 1984. He was 20 years of age at the time of the accident and was then in the employ of the defendants as a vehicle mechanic. The plaintiff alleged that whilst he was repairing the braking system of a lorry which was held up in place by a jack, the jack slipped, causing the lorry to surge forward and injure him. He suffered injuries to his right knee joint and sustained a fracture of the pelvis with partial rupture of the urethra. As a result of the injuries, the plaintiff suffered some residual disability, namely impotence, urethral strictures and early osteoarthritis of his right knee joint. The defendants accepted 90% liability with damages to be assessed. The learned assistant registrar made a total award of S$2,163 as special damages and S$137,475 as general damages. The defendant appealed in relation to the awards for impotency (S$45,000), pre-trial loss of earnings (S$41,202.50) and loss of future earnings (S$137,475).

Held: (1) in order to justify any reversal of the trial judge's decision on the amount of damages, it would be necessary for the appellate court to be convinced either that the judge acted upon some wrong principle of law or that the amount awarded was so extremely high or very small as to make it, in the judgment of the appellate court, an entirely erroneous estimate of the damages to which the plaintiff was entitled; (2) the amount awarded under the head of impotency was not unusually large or out of proportion to damages awarded in the past and is a fair figure in the nineties; (3) an appellate court should not lightly differ from a finding of the trial judge on a question of fact, but where no question arose as to the credibility of the witnesses and the sole question was as to the proper inferences to be drawn from specific facts, an appellate court was in as good a position to evaluate the evidence as the trial judge and should form its own independent opinion though it would give weight to the opinion of the trial judge; (4) reviewing the medical evidence, the evidence that the respondent was unable to carry on with his vocation could not be supported. The handicap alluded to did not restrict his physical movements, mental agility and dexterity of hand movements. In the circumstances of this case, allowing an element for the knee problem, ie problems emanating from osteoarthritis, the revised figure of S$25,000 proposed by the appellants was a fair sum; (5) there was a difference between an award for loss of earnings as distinct from compensation for loss of earning capacity. Compensation for loss of future earnings was awarded for real assessable loss proved by evidence. Compensation for diminution in earning capacity was awarded as part of general damages; (6) in the present case, there were no justifiable reasons which would make it appropriate for the court to award loss of future earnings.

Low Swee Tong v Liew Machinery (Pte) Ltd [1993] 3 SLR 89 High Court, Singapore (Rubin JC).

In a claim for damages for injuries sustained, the plaintiff ('the respondent') was awarded, inter alia, RM6,000 for permanent incapacity of the left little finger resulting in a loss of sensation over the medial aspect and RM19,200 for partial loss of future earnings. The defendants ('the appellants') appealed. Counsel for the appellants contended that the statement of claim did not incorporate the injury under this head and therefore the trial court ought not to have made such an award. The two issues which arose in connection with this argument were: (a) whether agreeing to a document dispenses with proof of its existence or execution; and (b) whether agreeing to a document dispenses with proof of the contents of the documents. Counsel for the respondent pointed out to the court that the injury under this head was categorically stated in the hospital medical record and that this report was incorporated in the agreed bundle of documents.

Held, allowing the appeal in part: (1) the trial court made the award of RM6,000 which it thought to be reasonable without taking into account comparable cases. This mode of assessing damages, ie snapping the figure from the air, may result in speculation and was frowned upon. It was not proper for the learned judge to discard the authorities and use her own experience in assessing the damages. The award of damages should be in line with a discernible trend or pattern of awards in reasonably comparable cases; (2) the appeal court would be slow to interfere with the trial court's finding unless (i) there had been a wholly erroneous estimate of damages, or (ii) the trial court had omitted some relevant consideration or admitted some irrelevant consideration, or (iii) the amount was so excessive or insufficient as to be plainly erroneous; (3) it was established law that once a document was included in an agreed bundle, it was no longer necessary to prove its existence or execution and it was not necessary to produce the original. But in so far as the contents were concerned, the truth of the same still had to proved, in the absence of any specific admission of the facts therein contained; (4) the respondent had to be bound by her pleadings. As such, the respondent was not entitled to damages for this injury although the quantum of damages awarded by the trial court, in itself, would have been appropriate in the circumstances when compared with other cases; (5) the appeal court was justified in reversing the decision of the trial court as it had acted upon a wrong principle of law; (6) the trial court's finding of fact that the respondent was earning RM600 per month at the time of the accident should not be disturbed by the appellate court as the trial court had the advantage of seeing and hearing the respondent's evidence in court and assessed the evidence in its correct perspective; (7) the injury under this head was not pleaded. The respondent's evidence in court had to tally with her averments in the pleadings and should not run counter to it;Parliament has made its intention loud and clear in s 28A(2)(d)(i) of the Civil Law Act 1956 in that 'in assessing damages for loss of future earnings the Court shall take into account that in the case of a person who was of the age of 30 years or below at the time when he was injured, the number of years' purchase shall be 16'. The respondent was below 30 years at the time of the accident and thus the trial court was right in awarding a multiplier of 16.

Red and Yellow Omnibus Co Sdn Bhd v Chuah Lay Boon [1993] 2 CLJ 480 High Court, Taiping (Abdul Malik Ishak JC).

Ng Siew Choo v Tan Kian Choon [1990] 2 MLJ 333 High Court, Singapore (Yong Pung How J).

See DAMAGES (PERSONAL INJURY OR DEATH), Vol 6, para 302.

The plaintiffs (the administrators of the estate of one S decd) sued the defendant for damages as a result of a motor accident in which S was killed. The plaintiffs alleged that the defendant drove his car so negligently that it ran into and killed S who was cycling on his proper side of the road.

Held: the plaintiffs were entitled to damages (fixed at RM14,000 by consent) and costs.

Thangachimmah & Anor v Flower [1968] 2 MLJ 248 High Court, Kuala Lumpur (Yong J).

The second defendants were building contractors. They were constructing a building. A licensee ran a coffee stall at the ground floor of the uncompleted building. The public had access to the stall. The building was not fenced off and there were no warning signs. At the material time the second defendant's workers were hacking the walls in preparation for plastering. No safety net was used. L was on his way to the coffee stall when an object fell on his head. He died subsequently. The second defendant denied liability on the basis that L was a trespasser.

Held, allowing the claim: (1) the evidence showed that the public had full and unrestricted access to the site to patronize the coffee stall. L was not a trespasser; (2) even if he were a trespasser, the second defendant should have foreseen such persons coming to patronize the stall. The second defendant would be liable even in such an event if they were in breach of their duty to lawful visitors; (3) the second defendants were in breach of their duty of care in not putting up a safety net when their workers were hacking the walls; (4) L was a hawker's assistant earning S$8,500 pa. He was 18 at the time of his death. S$7,000 was awarded for loss of expectation of life and S$1,500 for pain and suffering during the short period that L was conscious. Damages for the lost years was assessed on the basis of a 40% surplus and an agreed multiplier of 15.

Lim Seow Wah & Anor v Housing and Development Board & Anor [1991] 1 MLJ 386 High Court, Singapore (Chan Sek Keong J).

In 1979, a lorry carrying out earth dumping activities at the appellants' work site collided into one Mezlan bte Nasib ('the deceased'), when she was crossing the site to her nearby home. The lorry bore no registration number, but the lorry driver had made a police report soon after the accident. The administrators and dependants of the deceased ('the respondents') sued the appellants as the owners of the lorry and employer of the driver. They made an estate claim pursuant to s 8 of the Civil Law Act 1956 in the sessions court. The appellants admitted that an accident occurred at their work site on that particular day, but contended that the deceased was a trespasser, and denied that the lorry was owned by them or driven by their servant/agent. The sessions court judge found in favour of respondents and made the presumption that if the driver of the lorry was found on the appellants' premises, the lorry he was driving must have belonged to the appellants, and that the driver must be their servant and/or agent; and as the appellants had failed to rebut this presumption, they were vicariously liable. It was further held that the appellants were also liable as occupiers of the premises to the deceased who was a trespasser, because though they were aware of the likelihood of trespassers entering onto the premises where the earth work was carried on, they failed to take measures to prevent them from entering it. The sessions court judge then awarded apportionment of liability on a 50:50 basis. A sum of RM60,000 was awarded as a pre-trial loss under special damages for the lost years. The appellants appealed against liability and damages. On the issue of quantum, it was contended that a claim for lost years could not be awarded as a pre-trial loss, when it was not specifically pleaded by the respondents.

Held, allowing the appeal: (1) although s 114 of the Evidence Act 1950 grants the court the discretion to presume the existence of any fact which it thinks likely to have happened, the discretion must be exercised judiciously and not arbitrarily. There must be a proper basis for arriving at such a presumption, ie the connection between the evidence tendered and the presumption relied on must not be too remote, too uncertain or offend any legal principles; (2) in this case, there was no legal basis for the sessions court judge to make presumption. The connection between an unnumbered lorry and the presumption that it must had belonged to the appellants, and that the lorry driver was their servant and/or agent, was extremely remote and uncertain. Without this presumption, the burden of proof was on the respondents to prove that the driver was negligent and that he was a servant and/or agent of the appellants at that time; (3) in order to hold the appellants liable as occupiers, the respondents must plead in the statement of claim a cause of action and all the material facts of occupiers' liability. The respondents' failure to do so had taken the appellants by surprise when the claim against them was settled on occupiers' liability. As the respondents had only pleaded negligence, they were bound by their own pleadings, and hence, the sessions court's findings on the issue of occupiers' liability could not be sustained; (4) the case on which the sessions court judge relied in coming to her decision to apportion liability had already been overruled. Furthermore, in accordance with the present law, the apportionment of liability cannot be granted, as contributory negligence was not pleaded by the respondents; (5) (obiter) as the accident occurred in 1979, the law applicable in respect of quantum was the pre-amendment Civil Law Act 1956 ('the Act'). An award for the 'lost years' was based on loss of working years and had to be awarded when proved. Under the estate claim by the respondents pursuant to s 8 of the Act, it was preferable for the sessions court judge to make the award in respect of the claim for lost years under general damages. However, no injustice was done for the award to be placed under special damages as a pre-trial loss, though it was not specifically pleaded under this category; (6) the test applicable in deciding whether an occupier is liable to a trespasser for loss or damages caused while on the premises is a subjective test based on the occupiers' knowledge of the danger on his premises and his ability to take preventive measures according to his own financial limitations.

Metroplex Development Sdn Bhd v Mohd Mastana bin Makaddas & Anor [1995] 2 MLJ 276 High Court, Shah Alam (James Foong J).

The deceased died in a road accident while travelling in a motor car driven by his brother, the defendant. The deceased's parents, the plaintiffs, claimed against the defendant as the administrators of the estate of the deceased for damages for negligence for the benefit of the estate under s 8 of the Civl Law Act (Cap 30, 1970 Ed) and for the benefit of themselves as dependants of the deceased under s 12 of the Act. On 22 October 1981 the district court made an order for the grant to the plaintiffs of letters of administration of the estate of the deceased. On 2 February 1982 the grant was extracted. The schedule of assets attached to the grant contains four items of assets of the deceased passing on his death, including a claim for loss of expectation of life, but does not contain a claim for damages for loss of earnings for the 'lost years', which is the main issue in this case. The plaintiff took out the writ on 7 October 1982, claiming inter alia loss of earnings for the lost years. Subsequent to this, the plaintiffs filed a corrective affidavit with the Commissioner of Estate Duties in respect of the claim for the loss of earnings for the lost years, and a supplementary schedule of assets containing such a claim was issued by the Commissioner. Judgment in default of defence was entered against the defendant. The Senior Assistant Registrar awarded inter alia a sum of S$75,000 for loss of earnings for the lost years based on a multiplier of 18 and a multiplicand of S$350 per month. The defendant appealed against this part of the award on two grounds: (i) the grant of letters of administration at the time the writ was issued did not give the plaintiffs the authority to sue for loss of earnings for the lost years because at that time there was no schedule of assets attached to the grant containing such a claim. The supplementary schedule issued by the Commissioner subsequently did not cure the initial absence or lack of title in suing for such a claim; (ii) the damages awarded were excessive.

Held, dismissing the appeal: (1) it is the grant of letters of administration, not the schedule of assets, that confers a title on the plaintiffs in their representative capacity. Under s 37 of the Probate and Administration Act (Cap 23, 1970 Ed), where a person dies intestate his movable and immovable property vests in the Chief Justice and on the making of an order for a grant of administration by the court all such property vests in the administrator. The grant does not limit the authority or powers of the administrator to any specific property nor does it exclude any specific property therefrom. Nowhere in s 38 or elsewhere in the Probate and Administration Act is it provided that a grant of representation shall be issued only in respect of those assets appearing in the said schedule or that a grant is only effective in authorising the representative to deal with only those assets and no other; (2) the purpose of s 38 is to ensure that all estate duties payable on property passing or deemed to pass on death are paid or secured prior to the issue of a grant of representation; (3) on the question of quantum of damages, the amount awarded is not grossly or manifestly excessive.

Kwa Hock Kee & Anor v Kwa Kian Seng [1985] 2 MLJ 283 High Court, Singapore (Thean J).

Low Kok Tong v Teo Chan Pan [1982] 2 MLJ 299 Court of Appeal, Singapore (Wee Chong Jin CJ, Lai Kew Chai and Chua JJ).

See ENGLISH LAW, Vol 6, para 1765.

[Annotation: The Court of Appeal overruled the High Court's decision reported at [1982] 1 MLJ 82.]

The plaintiff is the sister and administratrix of the estate of the deceased, a 27-year-old electrician who died on 6 September 1982, when he was a passenger in a motorcar driven by the first defendant as servant or agent of the second defendant. She filed this action on 25 July 1983, for the benefits of the estate. Loss of expectation of life and funeral expenses had been agreed. The sole issue for determination is what is recoverable in respect of the lost years having regard to the assessment of the free balance. The total annual gross earnings of the deceased at the time of his death were about RM15,420. Had he been alive at the time of trial, his gross annual earnings would be RM20,250. The learned trial judge took the median figure of RM17,835 as the multiplicand for the pre-trial earnings. As to post-trial earnings, the deceased would be expected to earn some RM3,000 per month as an electrical supervisor; total gross annual earnings would be RM41,640. The judge considered appropriate a multiplier of 16. The plaintiff forbade enquiries in respect of the money remitted by the deceased to the Philippines. There is thus very little evidence as to what the deceased's actual living expenses were.

Held: (1) the personal expenses of the deceased should be fixed at 75%; (2) the pre-trial loss should be calculated at RM17,835 ´ 3.75 ´ 25% = RM16,720.31; (3) the post-trial loss should be calculated at RM41,640 x 12.25 ´ 25% = RM127,522.50; (4) judgment for the plaintiff in the total sum of RM159,543 (rounded), with costs. Question of interest reserved for hearing.

Lita Maddox v Calito C Guinto & Anor [1987] 2 MLJ 757 High Court, Bandar Seri Begawan (Hooper J).

The two actions in this case arose out of the same accident involving a motor van belonging to the first defendant in each suit and driven by the second defendant in each suit and motor cycle ridden by one Chin Yew Fan and Chiang Boon Fatt who was the pillion rider. As a result of the accident, both the pillion rider and the rider of the motor cycle suffered personal injuries. Civil Suit No 131 of 1976 was brought by Chin Yee Thow as administrator of the estate of the deceased Chin Yew Fan. The court found the driver of the motor car solely to blame for the accident. The defendants appealed 'against such part only of the said decision as decides that the defendants to pay to the plaintiff in Civil Suit No 131/1976 damages in the sum of RM4,000 for loss of expectation of life and RM15,000 for loss of earnings during the lost years and costs'. The facts revealed that the deceased was about to join the university when the accident occurred.

Held: (1) it has always been the practice in Malaysia to make an award, in a fatal accident claim, of not only an amount under s 8 of the Civil Law Act (Act 67) for the loss of expectation of life but also under s 7 of the Act by way of loss of dependency if on a balance of probability the court could find for such a loss; (2) 'the lost years' referred to in Pickett's case has nothing to do with dependency or the loss of it and is a claim (based on legislation similar to s 8(2)(c) of the Civil Law Act) that is available in a fatal accident case whether there was any dependency or not and is for the benefit of the estate of the deceased to be distributed according to the laws pertaining to distribution of the estate of a deceased person; (3) on the probabilities, there was a loss of dependency assessed on the moderate figure of RM200 per month, which gave RM4,000 for 1980 and 1981 and for a period of five years at RM200 per month, which applying the annuity tables, gives RM10,200 to make a total of RM15,000 by way of loss of dependency; (4) the court applied what was the conventional amount in the fifties and sixties and, allowing for the diminution of the value of money, awarded the plaintiff RM4,000 for loss of expectation of life.

Chiang Boon Fatt v Lembaga Kemajuan Negeri Pahang & Anor; Chin Yee Thow v Lembaga Kemajuan Negeri Pahang & Anor [1983] 1 MLJ 89 High Court, Kuantan (George J).

On 31 December 1981 the deceased was standing on the grass verge of the East Coast Parkway when he was run down by a motor vehicle driven by the defendant. The plaintiffs who were the administrators of the deceased's estate sued for damages for the dependent mother and for lost years. The deceased was a German national. At the time of his death the deceased was 33 years old and was a professional pilot on contract to a German company who had employed him to work in Indonesia. His contract specified that he would be receiving a salary of about DM10,240 per month. The dependent mother claimed that the deceased used to give her DM900 per month as support.

Held, allowing the claim: (1) the fact that the dependent mother had survived the deceased for a period of ten years following the accident did not mean that actual period of survival had to be reflected in the multiplier. It had to be calculated in accordance with known principles and practice as at the date of the death of the deceased which gave rise to the cause of action; (2) taking all considerations into account, the correct multiplicand was DM750 and the multiplier eight years; (3) the deceased's contract of employment would have expired in March of 1982 and there was no means of determining the deceased's employment prospects beyond that date. Bearing this in mind, a fair multiplicand for calculating the lost years would be DM120,000 which would be applied to a multiplier of 14 years; (4) it would be appropriate, in the case of a German national living and working in Germany for most of the time, to follow broadly the line of reasoning in English cases in determining the available surplus. Having regard to the fact that the deceased had to have been a thrifty person to be able to provide a measure of support for his mother and the expectation of his marrying in due course, an available surplus of 30% had to be adopted.

Hongkong Bank Trustee (S) Ltd v Rajinder Singh [1992] 2 SLR 31 High Court, Singapore (Yong Pung How CJ).

The case arose out of an accident that occurred on 30 July 1985 which resulted in the death of Ramli bin Hassan. The action was brought by the administrator of his estate for the benefit of the dependants of the deceased under the Fatal Accident Acts 1846 to 1908 and for the benefit of the deceased's estate under the Law Reform (Miscellaneous Provisions) Act 1934. At the time of the accident, the deceased was a crewman on the supply ship 'Putra Belait 2' which was moored in the open sea, alongside the barge 'Tiga Kali' which in turn was moored to an offshore rig. Various cargoes were being lifted by a crane on the barge from the supply ship onto the barge when a load of fire steel pipes, each about 30 ft long, fell from the crane and struck the deceased resulting in his death. The defendants, Petrodril (B) Sendirian Berhad, were the owners and operators of the barge 'Tiga Kali' and the third party Sharikat Kejuruteraan Bumiputra Belait Sendirian Berhad were the owners and operators of the supply ship 'Putra Belait 2', and were also the employers of the deceased. The action was based on negligence against the defendants and the third party.

Held: (1) the defendants were negligent in the present case; (2) the deceased was also negligent; (3) the defendants were 85% liable and the deceased was 15% liable; (4) as between the defendants and third party, the defendants were 75% liable and the third party 25% liable; (5) damages were awarded as follows: Pre-trial loss of earnings RM8,500; Earnings for lost years RM134,000; Loss of expectation of life RM6,000; Funeral expenses RM5,000; Total RM153,000. Since the deceased was 15% liable, the figure was reduced to RM130,500 (a round figure). The third party's liability to the defendant was 25% of the judgment sum. The defendants were ordered to pay the plaintiff's costs and the third party was ordered to pay the costs of the third party proceedings.

Haji Hassan bin Munap v Petrodril (B) Sdn Bhd [1988] 1 MLJ 388 High Court, Bandar Seri Begawan (O'Connor J).

On 16 July 1986, Teo Ee Soon ('the deceased') was killed when he was run over by a lorry driven by the first defendant. The deceased had alighted from a bus driven by an employee of the second defendant and was walking along the pedestrian walk when he was knocked down by the first defendant's lorry which was travelling on the pedestrian walk. The deceased's widow ('the plaintiff'), as administratrix, sued for damages on behalf of the estate and of the dependants. At the time of the accident the deceased was a medical officer at the Toa Payoh Hospital. He was earning about S$3,000 per month.

Held, allowing the claim: (1) there was no doubt whatsoever that the first defendant was negligent. His negligence was the causa causans of the accident, and he was wholly to blame for the death of the deceased; (2) there was much guess-work involved in estimating the probable earnings of a young man for the next 30 years. The younger he died, the greater the error, if any, was likely to be. It would therefore be more appropriate to split up the assessment for 'lost years' into two periods; (3) it was not disputed that the deceased would have attained the grade of Superscale H, and it was likely that the deceased would have attained that by 1994 at which stage he would have been entitled to do consultancy work. As a Superscale H officer the deceased would have earned about S$6,700 per month; (4) the multiplicand for the first period of 'lost years' would be the mean figure of S$3,000 and S$6,700 per month. A multiplier of 5 would be applied for this first period; (5) the multiplicand for the second period of 'lost years' should be the median of about S$10,000 to about S$20,000 per month, ie S$15,000. A multiplier of 15 would be applied for the second period; (6) if the total monthly CPF contributions for the benefit of an employee amount to 40% of his salary, and such contributions are a form of enforced savings, the available surplus should normally be more than 40% unless the court finds that the relevant deceased was such a spendthrift that he would have been unable to save a single cent. It was not possible to make such a finding in this case with respect to the deceased. The available surplus for the deceased would therefore be 50% for the first period of five years. The court awarded damages of S$174,805 for the first period of lost years. For the second period of ten years the available would be 35% on the ground that about slightly more than one half of his earnings would be in the form of consultancy fees which would have attracted CPF contributions only from the deceased. The court awarded S$622,332 as damages for this second period; (6) the court has the power to award interest on damages in personal injury cases and it may be exercised on the basis that the plaintiff had been kept out of his money unfairly. This situation arose where the defendant had no realistic defence to the claim and had taken advantage of the process of the court to withhold payment. In the instant case the first defendant had no defence at all to the plaintiff's claim. In the circumstances the plaintiff was kept out of her money unjustifiably. Interest of 3% was awarded on the damages for 'lost years'.

See Soon Soon v Goh Yong Kwang & Anor [1992] 2 SLR 242 High Court, Singapore (Chan Sek Keong J).

\On 8 September 1983 the deceased was knocked down, along Old Airport Road, by a motor car driven by the first defendant. The deceased died from his injuries. The administrators of his estate (the plaintiffs) commenced an action against the first defendant for damages for the benefit of the dependants and for the estate. The only eyewitness was the first defendant. He gave evidence that at the time of the accident he was driving in the lane closest to the road divider when the deceased dashed across the road. The defendant applied his brakes but was unable to avoid hitting the deceased. As a result of the collision the defendant's car windscreen was cracked and the left side of the bonnet was dented. The defendant said that at the time he was travelling at about 38 to 40 kph. There was an overhead bridge close to the scene of the accident but the deceased had chosen not to use it. A post-mortem of the deceased revealed that he had a blood alcohol content of 206mg of ethanol per 100ml of blood. The plaintiffs gave evidence that at the time of his death the deceased worked as a part-time driver and also did some gardening and his total earnings were about S$700 to S$1,000 per month. At the time of his death the deceased was 61 years old and in good health.

Held, allowing the claim: (1) the defendant was not a witness of truth. He did not hesitate to zig-zag his way between the coils of his own defence; (2) the defendant presumed that where there was an overhead bridge, the pedestrians would give him way, ignoring his obligations to pedestrians; (3) the defendant was picking up speed when the collision took place. He saw the deceased but could not brake in time. The driver of every vehicle approaching a pedestrian crossing must, unless he could see no pedestrian there, proceed at a speed that would enable him to stop his vehicle before reaching the crossing; (4) the deceased was outside the 50m limit of the 'pedestrian crossing'. The deceased was therefore not in breach of the Road Traffic Rules 1982; (5) the defendant was negligent and found to be 70% liable for the collision; (6) the medical report stated that when the deceased was examined he was comatosed and not responding to any stimuli. The duration of his pain and suffering before he was comatose was not known; (7) the starting point for evaluating pain and suffering had to be the injury itself, but suffering included fright at the time of the injury and fright reaction. The defendant saw the deceased 'dashing across the road'. It was a case of fright and fright reaction on the part of the deceased. The terrifying experience and the pain and suffering might not have lasted very long, but while it lasted it was very terrible. A sum of S$5,000 was awarded for pain and suffering and loss of amenities; (8) the deceased would have continued working as long as his health permitted him to do so in one, or, more than one job. Age was no hinderance to his working capacity as he was healthy. The evidence supported a finding that the deceased was earning between S$800 and S$900 per month. His expenses were no more than S$100. The multiplicand was fixed at S$600 and the multiplier at five. The total award for lost years would be S$36,000.

Rajaretnam & Anor v Ong How Chuan & Anor Suit No 4782 of 1986 High Court, Singapore (KS Rajah JC).

This was the appellants' appeal against those parts of the judgment which held that: (i) the second appellant was wholly to blame for the motor accident in which the respondent's wife was killed, and (ii) the appellants should pay general damages for the lost years of the deceased in the total sum of B$454,995. In his defence the second appellant made the following allegations: (a) the deceased was guilty of contributory negligence in that she drove too fast, and (b) the judge erred in taking into account the deceased's prospect of promotion when assessing lost years.

Held, dismissing the appeal: (1) the trial judge was perfectly entitled on the evidence as a whole, to come to the view that the deceased was not driving at an excessive speed and that she was not guilty of contributory negligence; (2) on the evidence, the deceased's chances of promotion were very good. Having regard to vacancies and performance, there was every prospect that she would become a senior education officer, if not five years after confirmation then some time after that.

Belait United Traction Co Ltd & Anor v Roslan bin Hj Bongso [1990] 3 MLJ 93 Court of Appeal, Brunei (Yang P, Fuad and Mayo, Commissioners).

The plaintiffs are the administratrix and administrator of the estate of one Teh Keat Leng, deceased, who worked as a supervisor for Seng Hing Sawmill. On 20 December 1974 at about 3 pm, the deceased was killed by the timber load which was to be unloaded. The lorry which carried the timber was owned by the second defendants, Lim Chin Joo trading as Chin Joo Sawmill and driven by the first defendant as the servant and/or agent of the second defendant. As the deceased was insured under SOCSO by his employer, Seng Hing Sawmill, the first plaintiff who is the widow of the deceased has been and still is receiving 'dependants' benefit' under s 26 of the Employees Social Security Act 1969 (Act 4), from 21 December 1974 and thereafter. The plaintiffs have, pursuant to the provisions of ss 7 and 8 of the Civil Law Act 1956 (Act 67) brought this suit claiming damages for the dependants of the deceased as well as on behalf of the estate of the deceased, against the first defendant as driver of the lorry and the second defendant as his employer. Two questions of law were raised: (a) whether an award of general damages for loss of support recoverable by the dependants of a deceased under s 7 of the Civil Law Act 1956, from a party who was neither his employer nor his co-worker amounts to 'a similar benefit admissible under the provisions of any other written law' within the meaning of s 42 of the Employees Social Security Act 1969 (hereinafter called 'the Act'); (b) if so, whether an award of general damages for loss of expectation of life recoverable by the estate of a deceased person under s 8 of the Civil Law Act 1956, from a party who was neither his employer nor his co-worker, amounts to 'similar benefit admissibile under the provisions of any other written law' within the meaning of s 42 of the Act.

Held: (1) an award of general damages in respect of a dependency claim under s 7 of the Civil Law Act 1956 being intended to compensate the dependants of the deceased in respect of loss of support is similar to 'dependants' benefit' within the meaning of s 15(1)(c) of the Act. Accordingly, the bar imposed by s 42 of the Act is available to the defendants insofar as the claim for loss of dependency under s 7 of the Civil Law Act 1956, is concerned; (2) an award of general damages under s 8 of the Civil Law Act 1956, is not a similar benefit within the meaning of s 42 of the Act. Accordingly, the bar imposed by s 42 of the Act is not available to the defendants insofar as the claim for loss of expectation of life under s 8 of the Civil Law Act 1956 is concerned.

Koay Tuan & Anor v Eng Chong How & Anor [1987] 1 MLJ 422 High Court, Penang (Edgar Joseph Jr J).

The plaintiff, as the administratrices of the estate of the deceased, sued the defendants on behalf of the estate and dependants of the deceased. The fatal accident occurred as a result of a collision between a motor car driven by the deceased and an empty tanker driven by the first defendant. The quantum of damages was agreed upon at the outset of the trial and the only matter for determination by the court was the question of liability. The defendants did not call the attendant of the tanker to give evidence on behalf of the defence and no reason was given for his absence.

Held, finding the first defendant fully to blame for the fatal accident: (1) on a balance of probabilities, the learned judge was of the view that the collision took place as a result of the tanker driven by the first defendant encroaching into the path of the deceased's car which was on the correct side of the road; (2) as the attendant of the tanker was not called to give evidence on behalf of the defence and as no reason was given for his absence, the learned judge held that the presumption under s 114(g) applied, namely, that there arose an inference that the evidence by such a witness would be unfavourable; (3) the learned judge, accordingly, found the first defendant guilty to blame for the fatal accident and entered judgment against the defendants and awarded damages in the sums that had been agreed upon by the parties.

Rita Joseph & Anor v Krishnan a/l Doraisamy & Anor Civil Suit No 633 of 1984 LC Vohrah J

Per Tan Ah Tah J: 'No doubt the learned trial judge was not bound to accept the scale of figures (which had been agreed by counsel), but if he had found it unsatisfactory, I think counsel should have been given an opportunity to address the court on the subject before a departure was made from the agreed figures.'

Tan Geok Tee v Kho Hock Choo & Anor [1958] MLJ 138 Court of Appeal, Singapore (Tan Ah Tah, Rigby and Wee Chong Jin JJ).

This was an appeal against the decision of the High Court which had awarded the sum of S$91,392, representing 70% of an assessed quantum of S$130,560 in damages on a total liability basis, in favour of the widow and other dependants of the deceased. The deceased's death was found to be caused by the combined negligence of the driver of a government refuse lorry, as well as his own, in a motor accident. The deceased was 34 years of age and the High Court adopted a multiplier of 15 in assessing damages. The Attorney General appealed. The respondent/plaintiff cross-appealed on the ground that the learned trial judge was wrong in law and in fact in adopting a multiplier of 15 years instead of something nearer 22.

Held, dismissing the appeal and cross-appeal: (1) the lorry driver was correctly found to be negligent to the extent of 70% of the total damages, and the deceased was contributorily negligent to the extent of 30% of the total damages; (2) the multiplier of 15 adopted by the High Court was acceptable in the circumstances of this case.

Attorney General v Rada Baskaran [1972] 2 MLJ 169 Court of Appeal, Singapore (Chua, Winslow and Tan Ah Tah JJ).

The plaintiffs, the administratrix and co-administrator of the estate of one Sarja Singh, deceased, brought this action for the benefit of the estate of the deceased and his dependants, under ss 7 and 8 of the Civil Law Ordinance 1956 (Act 67). The deceased was involved in a road accident on 25 February 1969, whereby he was knocked down by a lorry driven by the defendant. The deceased was 54 years old at the time of his death and was due to retire on attaining the age of 60 years. He was employed by the British army at a salary of RM378 per month. The court had to determine the question of negligence, and whether or not there was contributory negligence on the part of the deceased.

Held: (1) the deceased was contributorily negligent to the extent of 25%; (2) in the circumstances of this case, any multiplier in excess of six would not be appropriate in computing damages; (3) by virtue of s 8 of the Civil Law Ordinance 1956, the sum of RM2,000 should be awarded to the estate of the deceased. But this sum would merge with the award under s 7. Under s 7, the sum of RM17,280 should be awarded to the dependants as general damages. Special damages was agreed at RM1,100; (4) since the deceased was contributorily negligent to the extent of 25%, both general and special damages were to be scaled down to RM13,785. Interest disallowed.

Harbans Kaur & Anor v Lo Kum Sang [1972] 2 MLJ 196 High Court, Seremban (Wan Suleiman J).

The plaintiff claimed for loss of support as a result of a fatal accident which her unmarried 25-year-old son ('the deceased') was involved. The High Court judge awarded her RM144,000 on the basis of the datum figure or basis figure of RM750 per month, not involving a claim for 'lost years'. The said sum was found by the trial judge to be the average monthly sum of money the deceased had given to the plaintiff prior to his death. The defendants appealed. The issues before the court were: (i) whether the sum of RM750 should be reduced by about half because the plaintiff spent only half of this sum on herself and the other half was spent on three other school-going children of hers; and (ii) whether in a claim by a parent for loss of support in respect of an unmarried son, the statutorily-fixed number of years' purchase as set out in s 7(3)(iv)(d) of the Civil Law Act 1956 ('the Act') was applicable.

Held by a majority, allowing the appeal and reducing the award to RM24,365 (Edgard Joseph Jr SCJ dissenting in part): (1) under s 7 of the Act, the persons entitled to claim loss of support in respect of a deceased person are the wife, husband, parent and child only, not including a brother or sister. The only person entitled to claim in the instant appeal would, therefore, be the plaintiff. Therefore, the sum of RM750 per month as the monthly net loss of support was reduced to RM375 per month; (2) (per Peh Swee Chin SCJ) the state of the general system of law relating to a parent's claim as a dependant for loss of support in respect of an unmarried child before the enactment of sub-para (d) was that such loss of support would either cease or be reduced considerably on the almost invariable contingency of the subsequent marriage of the unmarried child. If the judge right in holding that the possibility of marriage of the deceased had he lived was one of the factors which had been taken into account as having been built into the statutory formula of 16 years' purchase, it would mean that this aspect of the law was swept away or changed. It was highly improbable that Parliament would depart from the general system of law without expressing its intention with irresistible clearness which was missing in this case; (3) (per Peh Swee Chin SCJ) the numbers of years' purchase was reduced to seven years and from that, the court deducted pre-trial loss of support up to the date of trial which would ordinarily have been awarded. The future loss of support was thereby reduced to RM24,375; (4) (per Edgar Joseph Jr SCJ (dissenting in part)) in enacting the detailed provisions of s 7(3)((iv)(d), Parliament had intended to take away the discretion of the court to select the appropriate multiplier in assessing loss of earnings of a deceased person for purposes of a claim for loss of support under s 7(1). Otherwise, the court could rewrite the statute or brush aside explicit statutory provisions and select, in the exercise of its discretion, a suitable multiplier; (5) (per Edgar Joseph Jr SCJ) contingencies such as the probability of the deceased marrying had he not died in the accident and, as a result, his contributions for the support of his mother ceasing or being considerably reduced, have been built into the statutory formula of 16 years; (6) (per Edgar Joseph Jr SCJ) the court is not at liberty to reduce the number of years' purchase from 16 years to seven years, or at all. For the same reason, the court had no discretion to make any deductions from the number of years' purchase, the period for which the court might have awarded pre-trial loss of support up to the date of trial; (7) (per Edgar Joseph Jr SCJ) as the court had no discretion to alter the statutory multiplier, then equally, it could not indirectly do so by reducing the multiplicand; (8) (per curiam) (per Peh Swee Chin SCJ) the introduction of the words, 'loss of support' into s 7(3)(iv)(d) of the Act had not added anything new to the state of the law, but only incorporated what the courts had always decided before such an addition; (9) (per curiam) (per Peh Swee Chin SCJ) the duration of loss of support sustained by a parent in respect of an unmarried child ordinarily and simply could not be ever so long as the duration of the loss of support sustained by a widow and her children in respect of her husband, for example; (10) (per curiam) (per Edgar Joseph Jr SCJ) the fact that the deceased had provided his mother with funds not only to maintain herself but also to enable her to carry out the duty imposed upon her by ss 3 and 6 of the Guardianship of Infants Act 1961, being responsible for the support, health and education of her school-going children, would afford no grounds to justify the court in expanding the class of person specified under s 7(2) of the Act as being entitled to make a claim for loss of support. Additionally, a claim to increase the value of the loss of support based upon the consideration of such obligation so the mother would not have been reasonably foreseeable by the defendant tortfeasors and would, therefore, be bad for remoteness.

Chan Chin Ming & Anor v Lim Yok Eng [1994] 3 MLJ 233 Supreme Court, Johor Bahru (Peh Swee Chin, Edgar Joseph Jr and Mohamed Dzaiddin SCJJ).

This was an appeal by the plaintiff against an award of damages by the High Court ([1972] 1 MLJ 13). It was agreed at the trial and repeated in the grounds of appeal that the deceased had a chance of further promotion after reaching the maximum at RM350. At the hearing of the appeal, the Federal Court admitted fresh evidence, namely, an 'offer of conversion to the clean wage system' recommended by the Suffian Salary Commission. On this scale, the deceased should have reached the maximum of the scale at RM425 after ten years' service. Another issue for determination was whether the monthly pension of RM110.27 which the appellant had been receiving under the Widows' and Orphans' Pensions Ordinance (Sarawak Cap 90), since the death of the deceased, should be taken into account.

Held: (1) the loss of future income must be reassessed on the basis that the deceased would continue to be in the same post but on the new timescale, until his retirement at the age of 55; (2) the pension of RM110.27 should not be taken into consideration; (3) on that basis and assessing it on the new salary scale but using the trial judge's method of calculation, the general damages, after the necessary deductions, must be assessed at RM43,000, which was to be apportioned accordingly between the widow and the two infants. The damages due to the two infants must be paid to the Public Trustee; (4) since the appellant had succeeded on a point not raised in the court below, and since she was only partly successful in this appeal, no costs were to be awarded. With regard to costs in the court below, since the amount awarded on appeal exceeded the amount deposited by the respondent in court, the appellants were to have the costs in the court below.

Anna Jong Yu Hiong v Government of Sarawak [1972] 2 MLJ 244 Federal Court, Kuching (Azmi LP, Ismail Khan CJ (Borneo).

In the asssessment of general damages under s 7 of the Civil Law Ordinance 1956 (Act 67), it is necessary, in view of the principles enunciated in Nance v British Columbia Electric Rly Co Ltd [1951] AC 601, to estimate (a) the deceased's expectation of life if he had not been killed when he was; (b) what sums during these years he would probably have applied to the support of his wife and children, bearing in mind the allowances to be made for the acceleration of the accrual of interest, the possibility that some of the beneficiaries might have predeceased the deceased had he lived and that the deceased's wife might remarry. Further, there should be added to the above what the deceased would have saved during the estimated expectation of life and what of these additional savings his family would have been likely to inherit.

Chan Yoke May v Lian Seng Co Ltd & Anor [1962] MLJ 243 High Court, Kuala Lumpur (Suffian J).

In assessing the damages and following the principle on question of quantum of damages laid down in Benham v Gambling [1941] AC 157 it should be borne in mind that the value of money has fallen very much since that case was decided. It is neither necessary nor in accordance with the best traditions of pleading to claim any specified sum in a statement of claim when claiming general damages. For general damages, the proper prayer is 'The Plaintiff claims damages'.

Tham Kwa Chin v Choong Hoong Sum [1954] MLJ 161 High Court, Penang (Spenser-Wilkinson J).

The plaintiff, as administrator of his daughter's estate, sued the defendant for damages for negligent driving. There were two main issues for consideration, namely whether the defendant who drove the car was negligent and whether the defendant driving the car was an agent or servant of the second defendant who was the owner of the car.

Held: (1) from the evidence it was the act of the first defendant who was driving that actually caused the accident and although the deceased was to a certain degree also at fault, it was the first defendant who was liable; (2) on the facts of the case, the first defendant was not the servant or agent of the second defendant and as such the second defendant was not responsible for the wrongful act of the first defendant; (3) damages should be assessed on the principle of Benham v Gambling, [1941] AC 157.

Lau Kee Kar v Mat bin Saadin & Anor [1961] MLJ 152 High Court, Alor Setar (Syed Sheh Barakbah J).

The appellant claimed damages for bereavement under ss 7 and 7(3B) of the Civil Law Act 1956 as the specified beneficiary of the deceased, Hooi Teck Weng, who at the time of death was a minor. The sessions court judge held that the deceased was 40% negligent and the defendant 60% negligent but disallowed the claim for bereavement as it was never proven that the deceased was not married. The appellant appealed to the High Court contending that it was not necessary to prove that the deceased was not married since it could be presumed by virtue of s 10 of the Law Reform (Marriage and Divorce) Act 1976 that a minor had never been married.

Held, dismissing the appeal: before a claim for damages under s 7(3B) of the Civil Law Act 1956 can be allowed, it must be proved that the deceased was a minor and that he was never married. Section 10 of the Law Reform (Marriage and Divorce) Act 1976 cannot assist as it also implies that, a male who is under 18 years of age and a female between 16 and 18 years of age could be married by a licence granted by the Chief Minister under s 21(2) of the same Act. In any event, s 10 only concerns marriages solemnized in Malaysia; it does not concern marriages solemnized overseas which may permit marriages between minors.

Hooi Seong v Ooi Pay Yeong [1995] 4 MLJ 670 High Court, Penang (Vincent Ng J).

The facts in this case were that on 24 May 1953, shortly after dark, one Tay Kim Peng was riding a motor cycle with one Goh Lye Yong as pillion rider along a side road through Bukit Sembawang Estate towards Jurong Road when he collided with an iron bar placed across the mouth of the side road by the defendant for the purpose of collecting toll, and incurred injuries from which he died soon afterwards. The learned judge at the trial also found: (1) there were red reflectors fixed on the bar, one showing in either direction; and (2) the iron bar was normally kept down until 9 or 10 pm. The plaintiffs who were the personal representatives of the deceased claimed that the defendant in placing the bar across the road at the time of the accident was negligent and also acted in breach of the statutory duty imposed on him by s 75 of the Road Traffic Ordinance 1941.

Held: (1) in placing a reflector on the bar the defendant had performed in the circumstances of this case all that the law required of him as far as licences were concerned; (2) the deceased in this case failed to exercise due care for his own safety, and this was the substantial cause of the accident; (3) damages can be recovered for the breach of the statutory duty imposed by s 75 of the Road Traffic Ordinance 1941 but in this case the negligence of the deceased defeated the plaintiffs' claim as the deceased's negligence was the substantial cause of the accident.

Ng Siew Eng & Anor v Loh Tuan Woon [1955] MLJ 89 High Court, Singapore (Whitton J).

Leong Twai Mooi v Leow Kah Whay Suit No 1143 of 1993 High Court, Singapore (Lai Kew Chai J).

See DAMAGES (PERSONAL INJURY OR DEATH), Vol 6, para 338.

This is an appeal against the assessment of the learned Assistant Registrar who allowed S$95,000 for loss of earnings using the multiplicand of S$530 pm over a multiplier of 15 years and S$3,000 for pain and suffering. The deceased, aged 22, died on 3 November 1979 after a motor accident. He was a mechanical fitter working for a sub-contractor. The appellants argued that the multiplicand based on the basic salary of S$1,000 was much too high. The basic pay of the deceased was S$20 per day or about S$600 per month.

Held, allowing the appeal: (1) the multiplicand of S$530 pm was manifestly on the high side. The earnings of the deceased less income tax should more realistically be S$760 pm; (2) the multiplicand should be S$340 pm, after deducting the monthly expenses of S$420. No allowance for Central Provident Fund should be given. The loss of earnings should therefore be S$61,200; (3) for pain and suffering, the sum awarded should be reduced from S$3,000 to S$1,000.

See Ah Hwa & Anor v Ong Hock Thian & Anor [1985] 2 MLJ 7 High Court, Singapore (Lai Kew Chai J).

The deceased, Chan Sui Keng, a 20-year-old second year medical student in the University of Singapore, was killed when the car in which she was travelling and driven by her brother collided with a taxi driven by the first defendant. The deceased's father as administrator of the deceased's estate (first plaintiff) claimed damages for lost years. The father (second plaintiff) also claimed special damages for the loss of the use of his car. The defendants admitted liability (90% in respect of the first defendant and 10% of the second defendant). Both parties agreed on quantum of damages with respect to loss of expectation of life (S$6,500), funeral expenses (S$3,000) and loss of the use of the car (S$600). The deceased had only completed her first year examinations to qualify as a doctor. The court had to decide the quantum of the claim by the estate for 'lost years' which s 8 of the Civil Law Act (Cap 30) entitles the estate to claim by virtue of the case of Gammell v Wilson [1981] 2 WLR 248.

Chan Heng Wah & Anor v Peh Thiam Choh & Anor [1986] 2 MLJ 175 High Court, Singapore (Chua J).

[Annotation: This case was overruled when it went on appeal to the Court of Appeal in [1988] 1 MLJ 74.]

This was an appeal against the decision of the Singapore Court of Appeal ([1953] MLJ 231), where the said court affirmed the award of the learned trial judge under s 7 of the Civil Law Ordinance, S$2,000 (including funeral expenses and costs of letters of administration) and under s 8 of the same ordinance, S$15,000. The Court of Appeal held that in cases of this kind, it was convenient if the bases of calculating awards under s 8 were fully set out and the award to each dependant calculated separately. In the total sum of damages awarded, a sum of S$350 was included for costs of letters of administration. The Judicial Committee of the Privy Council in dismissing the appeal and affirming the order for damages, varied the decision of the Court of Appeal by disallowing the S$350 for costs of letters of administration.

Lim Joo Chiang v Lim Siew Choo & Anor [1955] MLJ 201 Privy Council Appeal from Singapore (Lord Morton of Henryton, Lord Radcliffe, Lord Keith of Avonholm, Lord Sommervell and The Rt Hon LMD de Silva).

A collision between a motor cycle ridden by the defendant and a bicycle ridden by M resulted in the latter's death. The plaintiffs, as administrators of M's estate, brought an action for the benefit of the deceased's estate as well as for the benefit of the deceased's dependants, his wife aged 28 years, his son aged 12 years and his daughters aged 11 and 3 years respectively. They claimed that the said collision was caused by the negligence of the defendant. The deceased, a labourer, had earned a monthly salary of RM212.

Held: (1) in the circumstances of this case, the deceased was four-fifths responsible for the accident while the defendant was only a fifth to blame; (2) as the deceased was 35 years old at the time of the accident, damages was assessed at 15 years' purchase. General damages was assessed at RM16,192.28 under s 7 of the Civil Law Act 1956 (Act 67) and RM750 for special damages. In view of the finding on contributory negligence, only one-fifth of the amount of general damages should be paid.

Minachi & Anor v Mohamed Yusof bin Zakaria [1978] 2 MLJ 256 High Court, Penang (Gunn Chit Tuan J).

Takong Tabari v Government of Sarawak & Ors [1996] 5 MLJ 435 High Court, Miri (Richard Malanjum J).

See TORT, para 1560.

C was killed in a road accident. He was 32 at the time and a lieutenant in the armed forces. The plaintiffs were C's personal representatives. The first defendant was the driver of the lorry which collided into C's car after veering onto his side of the road. The third defendants were the first defendant's employers and the owners of the lorry. The second defendants were repairers of the lorry who, it was alleged, were negligent in repairing it.

Held, granting the claim against the first defendants and the third defendants: (1) after considering the evidence, the court concluded that the accident had been caused by the negligence of the first defendants, for which the third defendants were also vicariously liable; (2) using a multiplier of 14, S$215,000 was awarded for loss of future earnings. The conventional amount of S$7,000 was awarded for loss of expectation of life; (3) for the dependency claim, S$117,000 was awarded for pre-trial loss based on an estimated surplus of S$1,000 for 117 months. As for future loss of support, the surplus was estimated as S$1,500 and a multiplier of seven was used; (4) the problem in dealing with the claim for loss of pension, gratuity and CPF contributions was the difficulty of proving the claim and assessing the damages to be awarded. It was for the claimants to prove such loss and their quantum. As it was not possible to make a reliable estimate, no award was made under this head of claim; (5) as the dependants and the beneficiaries were the same, the dependancy award was reduced by the amount received as beneficiaries; (6) interest at 6% pa was awarded on the damages for loss of expectation of life and special damages from the date of issue of the writ. Interest at 3% pa was awarded on the pre-trial loss of support from the date of the accident.

Low Yoke Ying & Anor v Sim Kok Lee & Ors Suit No 4373 of 1983 High Court, Singapore (Yong Pung How CJ).

In this case, the plaintiff's son was killed in a road accident and the plaintiff sued as administrator of the estate. Liability was agreed at 50/50 and the dispute was as to quantum of damages. The boy was aged 13 and was working part-time for a Chinese contractor. After the accident, he was in a state of coma but not totally unconscious until he died. The claims were as follows: (a) Claim for pain and suffering. (b) Claim for loss of expectation of life, under s 8 of the Civil Law Act. (c) Claim for loss of dependency under s 7 of the Act. (d) Claim for loss of future earnings under s 8(2)(c) of the Act. (e) Special damages agreed at RM850.

Held: (1) in this case, there was an element of pain and suffering as the patient was not totally unconscious after the accident and the sum awarded would be RM20,000 for pain and suffering and loss of amenities; (2) the amount for loss of expectation of life would be assessed at RM4,000; (3) there was loss of dependency in this case and the amount would be assessed at RM14,185.60; (4) it is well settled law that the plaintiff is entitled under s 8(2)(c) of the Civil Law Act to claim damages for loss of future earnings of his son for the benefit of the estate. The amount for loss of future earnings would be assessed at RM13,456.80.

Thangavelu v Chia Kok Bin [1981] 2 MLJ 277 High Court, Kuala Lumpur (Sim JC).

See tort, para IV [70].

Rubaidah bte Dirin (suing as widow of Basia bin Bahari, deceased, on behalf of herself and the dependants of the deceased) v Ahmad bin Ariffin [1997] 1 MLJ 677 Court of Appeal, Kuala Lumpur (Gopal Sri Ram, NH Chan and Mahadev Shankar JJCA).

This was an appeal by the defendant against the decision of the sessions court judge that the defendant and co-defendant were respectively liable 10% and 90% for an accident between the motor cycles ridden by each of them. The plaintiff was the pillion rider on the motor cycle ridden by the co-defendant, who was brought in by the defendant as a party to the action. The accident occurred when the co-defendant was overtaking a bus. At that time, the defendant was riding in the opposite direction. There was no other vehicle coming from that opposite direction. The sessions court judge found that when he was overtaking, the co-defendant must have encroached on to the side of the road on which the defendant was travelling. The judge below also found that had the defendant ridden more to the left on his side of the road, he would have been able to avoid the collision with the co-defendant's motor cycle. The judge apportioned liability at 10%:90% as between the defendant and co-defendant respectively. However, the judge ruled that as the plaintiff did not plead any negligence against the co-defendant, the defendant was found to be 100% negligent and the claim against the co-defendant was dismissed with costs.

Held, allowing the defendant's appeal with costs: (1) the court agreed with the sessions court judge's apportionment of liability between the defendant and the co-defendant; (2) in a case where injury was caused or done to a plaintiff, any tortfeasor whose action was the cause of the injury suffered by the plaintiff had to fully compensate the plaintiff, although the tortfeasor was only partially liable; (3) the sessions court judge had erred in law in applying this principle when he decided that the defendant was 10% liable but went on to order that since no claim was made against the co-defendant, the defendant was 100% negligent. This decision meant that the defendant was liable 100% and the co-defendant was not liable at all. The effect of such a decision was to deny the defendant his right to obtain contribution from or to be indemnified by the co-defendant as provided by s 10 of the Civil Law Act 1956 after the defendant had paid the full sum of the damages to the plaintiff; (4) the court set aside the sessions court judge's decision that the defendant was 100% negligent. The initial apportionment of liability at 10%:90% as between the defendant and the co-defendant was upheld.

Tan Cheong Seng v Lee Lai Seng & Anor Civil Appeal No 12-39-1992 High Court, Alor Setar (Mohd Noor JC).

[Annotation: The judgment was delivered in Bahasa Malaysia.]

General damages at RM114,500 and special damages at RM2,414 based on 100% liability were agreed by the parties. The only dispute was as to liability.

Held: on the issue of liability, the deceased was two-thirds to blame and the first defendant one-third in contributory negligence. The first defendant was guilty of contributory negligence as the collision had been clearly and reasonably foreseeable.

Poi Kuen Mun (f) & Ors v Ng Wei Choo [1983] 2 MLJ 289 High Court, Seremban (Mohamed Azmi FJ).

The deceased was injured in a road accident on 31 January 1981 and died on 18 July 1981. At that time, the deceased was earning a monthly salary of RM365. The widow testified that she spent RM500 for funeral expenses, RM300 for the grant of letters of administration and RM150 for 15 visits to the hospital. She also claimed that the deceased's bicycle was worth RM100. She alleged that after the accident, the deceased was restless all the time and tied for some time lying down while in the hospital and at home. He could not walk on his own or talk. He could not eat and was fed through tubes and could urinate only through condom drainage. He was finally discharged on 30 June 1981 and she alleged that the doctor had told her mother to treat her husband at home. His condition did not change; in fact he got worse and subsequently died. According to the defendant, he saw the deceased some 60ft away. The deceased was cycling along the left side and suddenly crossed in front of his car when he was 30ft away. He sounded his horn and swerved to the right but could not avoid the accident. Expert evidence was given on behalf of the defendant by a doctor (DW2), who was of the opinion that the deceased should never have been discharged, and a computer axial tomogram scan ('CAT scan') ought to have been done to get further information as regards the blood clot and state of fluids in the brain. Evidence was also given by the medical officer in charge (TPW1) to the effect that the head chart indicated no abnormal signs in the nervous system. There was no manifestation of a blood clot although the possibility was always present. The deceased was then discharged and readmitted. According to TPW1, the cause of death could have been due to head injuries and could have been saved if there was a CAT scan. However, in many other similar cases, no CAT scan was done. The third party (TPW2) gave evidence that he was only involved in the deceased's conservative treatment. He added that there was no purpose in doing the CAT scan as it was discovered that damage to the brain at the time of the accident was permanent. Another witness (TPW3) also gave evidence that the deceased showed no neurological deficit when he was first discharged. On the second admission, TPW3 had intended to do a CAT scan but it was only available in Kuala Lumpur and no appointment could be arranged by 31 May 1981. As such, TPW3 decided to do exploratory burr holes and no evidence of any haemotoma was found. Although he then recommended institutional care, the deceased's relatives preferred to bring him home, resulting in the second discharge.

Held, allowing the plaintiff's claim on 40% liability against the defendant and dismissing the action against the third party: (1) the court accepted the fact that the deceased had cut across the path of the defendant about 30ft away but was of the view, especially because the defendant had noticed the deceased from a distance of 60ft away, that there was a far enough distance for the defendant to have anticipated the possibility of the deceased cutting across and to have been able to avoid the collision. However, the deceased was more to blame as there would have been no accident if he did not cut across in that manner. Accordingly, liability is apportioned at 60% as against the plaintiff and 40% as against the defendant; (2) the first third party had been wrongly cited as he was not involved in the active management of the deceased despite his signatures on the records. In fact, he was assisting another doctor. However, based on the evidence which satisfactorily explained the conclusions made by the doctor, no legal inference can be made on the facts as they stand upon a balance of probabilities that the third party was liable in negligence. The doctor had treated the deceased in the same way he had treated other patients in similar conditions; (3) the court allowed, on a 100% liability: (a) the sum of RM500 claimed for funeral expenses as the plaintiff stated that she had spent this amount, and it was a reasonable and appropriate amount for a Muslim funeral; (b) the sum of RM350 for the letters of administration as this is the usual figure; (c) the sum of RM36 for the medical report, police and sketch plan reports and the RIMV report; (d) the sum of RM100 for the loss of the bicycle although there was no clear evidence as regards the damage but it was a fair amount; (e) the sum of RM150 for transport expenses as the deceased spent some time in hospital; (f) the sum of RM6,000 for loss of expectation of life as agreed by the parties; (g) the sum of RM31,150 for loss of future earnings; (h) the sum of RM15,000 for pain and suffering and loss of amenities since death was not immediate.

Mariah bte Mohamad (Administratrix of the estate of Wan Salleh bin Wan Ibrahim, deceased) v Abdullah bin Daud (Dr Lim Kok Eng & Anor, Third Parties) [1990] 1 MLJ 240 High Court, Kota Bahru (Abdul Malek J).

In this case, the respondent had claimed damages for herself and the dependants of her deceased husband who died in a motor accident. The learned trial judge found on the facts that the appellant was wholly liable for the accident and he awarded RM17,800 as damages for loss of dependency. The appellant appealed.

Held: (1) in the circumstances of this case, the finding of the trial court that the appellant was wholly responsible for the accident should not be disturbed; (2) the appeal regarding damages must also be dismissed as the court was not in a position to say that the learned trial judge was wrong in his assessment of loss of dependency.

Lee Thiam v Fatimah bte Salleh [1981] 1 MLJ 285 Federal Court, Kuala Lumpur (Raja Azlan Shah CJ (Malaya).

The substantial blame for the accident falls on the cyclist but there was contributory negligence on the second defendant's part. The cyclist was 70% to blame for the accident and the defendant 30%. General damages at RM4,200 at 30% and special damages agreed at RM260.20 at 30% were awarded to the plaintiff.

Yaakob bin Mohamad & Anor v Sintat Rent a Car Service (M) Sdn Bhd & Anor [1983] 2 MLJ 283 High Court, Kuantan (George J).

This was a claim for damages as a result of a motor accident. The first defendant was driving a bus when he knocked a motor cycle from behind pinning both the deceased and the motor cycle under the bus. One of the most significant injuries that caused the deceased's death was the multiple crushed and comminuted skull fracture. Counsel for the defendants urged the court to attribute 15% liability to the deceased alleging that the deceased was without his crash helmet at the time of the accident. The first plaintiff who was the deceased's widow made a dependency claim whilst the second plaintiff, who owned the motor cycle, made a claim for the loss of vehicle. A preliminary issue before the court was whether the plaintiffs had the capacity to sue as administrators of the deceased's estate as, at the time of filing of this suit, they were not in possession of the letters of administration.

Held: (1) the act of extracting the letters of administration only served as evidence to the world at large that the persons named in the grant were the administrators of the deceased's estate and the grant took effect from the date the petition was allowed and the order granted. In the present case, the plaintiffs had filed their suit before extracting the letters of administration but the letters of administration had already been granted to them before the date of the filing of the suit. The plaintiffs were therefore properly clothed with the power of representation as administrators of the deceased's estate at the time of the filing of this action; (2) it appeared from r 4 of the Motorcycles (Safety Helmets) Rules 1973 that the wearing of crash helmet was mandatory. However, the rule had its attendant difficulties and uncertainties, and since there were no express provisions in the statutes to the effect that the failure to wear or incorrectly wearing a safety helmet should be a factor to be considered in ascertaining contributory negligence, the Motorcycles (Safety Helmets) Rules 1973 were made only in the nature of a 'friendly advice' for the purpose of personal protection and not with the view to be used as a test to ascertain the contributory negligence in a claim for damages; (3) the first defendant was negligent when driving the bus. There was no doubt that with or without a safety helmet, the deceased's skull would still be crushed and he would die as a result. The defendant's claim for a reduction in liability therefore failed; (4) as the first plaintiff was a married person at the time of the accident, her plight had to be viewed when deprived of her husband's efforts as the breadwinner so that the dollars and cents that she had been deprived of had to be calculated on the basis of what she would still have enjoyed as if her husband had been alive. As her husband gave her RM300 to RM500 per month and took RM50 for his personal expenses, RM400 was considered a fair sum for the nett loss for dependency; (5) the claim for the motor cycle was allowed and valued at RM750.

Ruhani bte Mohiat & Anor v Abdul Karim bin Mat Ali & Anor [1993] 3 CLJ 524 High Court, Kuantan (Lamin J).

The plaintiff in this case was the administrator of the estate of one Chan Cheok Meng who died on 7 May 1952 as a result of the negligent driving of a motor vehicle by the defendant. He was suing both as administrator and for the benefit of himself as father of the deceased and on behalf of the mother of the deceased for damages to himself and his wife for the loss of support and to the estate of the deceased. The proceedings were not commenced until 30 October 1954. Section 4(v) of the Executors and Fatal Accidents Enactment provides that an action for the loss of support shall be brought within 12 calendar months after the death of the deceased person; s 3 of the same Enactment gives the executor of a deceased person the right to bring an action for any wrong committed in the lifetime of the deceased person which occasioned pecuniary loss to the estate, but the exercise of that right is made subject to a period of limitation of one year. But s 4(i) of the Civil Law Enactment 1937 provides in general terms that all causes of action vested in a deceased person shall survive for the benefit of his estate.

Held: (1) as s 4(v) of the Executors and Fatal Accidents Enactment had not been complied with, the claim for loss of support was statute-barred; (2) section 4(i) of the Civil Law Enactment 1937 superseded the provisions of s 3 of the Executors and Fatal Accidents Enactment, and therefore the claim for damages to the estate in respect of the loss of expectation of life and the claim for funeral expenses were not statute-barred.

Chan Chung Hoong v Cheow Vooi Peng [1955] MLJ 135 High Court, Ipoh (Thomson J).

See civil law act, para III [13].

Mokhtar bin Abdul Razak & Anor v Shamsiah bte Saman (suing as widow and beneficiary to Abdul Razak bin Hj Senawi, deceased) [1997] 1 MLJ 493 Court of Appeal, Kuala Lumpur (Shaik Daud, NH Chan and Abu Mansor JJCA).

Samsuri bin Saad & Anor v Chew Kit Toh (t/a Kit Thong Woh Hup) and another appeal [1996] 1 MLJ 576 High Court, Taiping (Abdul Malik Ishak J).

See CIVIL PROCEDURE, para 157.

On 9 November 1987, Lau Ngak Chua ('the deceased') suffered head injuries when the motor scooter he was riding was involved in a collision with a motor lorry driven by the second defendant. At the time the second defendant was a servant of the first defendant. The deceased died from his injuries and his widow brought an action for damages for the benefit of his dependants, namely, the widow and the deceased's daughter. At trial the parties agreed that the defendants were 90% liable. Damages for the estate were agreed. The dispute arose as regards the dependency claim.

Held, assessing the dependency claim at S$124,320: (1) the purpose of an award of damages was to provide the widow and the dependant with a capital sum which, with prudent management, would be sufficient to supply them with material benefits of the same standard and duration as would have been provided for them out of the earnings of the deceased had he not been killed by the tortious act of the defendant; (2) to assess the damages, it was necessary to form a view upon three matters, each of which was in greater or lesser degree one of speculation. Firstly, the value of the material benefits for his dependants. Secondly, the value of any material benefits which the dependants would be able to obtain in each year in the future. Thirdly, the amount of the capital sum which, with prudent management, would produce annual amounts equal to the difference between the first and second matters; (3) each month the deceased provided S$600 for marketing, S$150 for clothing, toiletries and entertainment and S$250 for household expenses. Including loan repayments, that brought the total up to S$1,147 a month. The deceased's own share should be deducted and one-third was taken off to arrive at what was attributable to the dependants. The figure was rounded off to S$750; (4) the daughter was attending primary school at the time of trial. Her needs were assessed at S$220; (5) the dependants' total needs therefore came to S$970 per month. From this would be deducted the sum of S$200 which was the widow's monthly contributions to the family; (6) the deceased was holding down three jobs at the time of his death. He worked from midnight to 1am daily for a fish importer for which he was paid S$400 per month. A sum of S$140 was also paid to CPF; (7) in his second job, the deceased helped a fishmonger at the Central Fish Market by pushing baskets of fish from 4am to 6am daily. The deceased was paid S$10 per day. The court found that the deceased earned S$250 a month from this job; (8) in his third job, the deceased helped a food stall owner at the Central Fish Market canteen. He worked from 6am to 10am. He earned S$10 per day. He would earn an extra S$2 per day if business was good. In addition, he took his meals at the stall without having to pay. The court found that his salary from this job would be S$250 per month; (9) from the three sources the deceased earned S$900 per month. One-third would be taken off for expenses. This left S$600 per month or S$7,200 per year. The CPF contributions would be S$1,680 a year; (10) the deceased's work required little skill but he demonstrated a readiness to work hard to provide for his family. At the time of his death the deceased was 37 years old. A multiplier of 14 would be applied to the multiplicand.

Tay Say Moi & Anor v Mua Hin Poultry Farm Pte Ltd & Anor Suit No 558 of 1989 High Court, Singapore (Lim Teong Qwee JC).

This was an appeal by the plaintiff against the decision of the assistant registrar striking out, on the application of the first defendant, the writ of summons which was filed on 19 December 1986, on the ground that the action as indorsed on the indorsement of claim showed that it had been time-barred. The plaintiff in the indorsement claimed as administrator of the estate of Rajendran, the deceased, and on behalf of one Amirthammal under s 8 of the Civil Law Act (Cap 30) against the second defendant as servant of the first defendant for being negligent in the fatal treatment of the deceased on or about 7 November 1983 at the Alexandra Hospital. The plaintiff submitted that his claim was an estate claim subject to the normal limitation period of six years under s 6(1)(a) of the Limitation Act (Cap 163, 1985 Ed) read with s 7(1) of the Civil Law Act (Cap 43, 1985 Ed) and not, unlike a dependency claim, subject to a limitation period of three years by virtue of s 11(5) of the Civil Law Act.

Held, dismissing the appeal: (1) the estate claim of the plaintiff in the present case was in effect a claim for damages for personal injuries which, but for s 7(1) of the Civil Law Act, would not have survived at common law. Section 7(1) merely preserved the cause of action posthumously and no more. Unlike s 11(5) of the Civil Law Act in relation to dependency claims, it did not extend or purport to extend, upon the death of the injured person, the limitation period of three years prescribed by s 6(4) of the Limitation Act; (2) s 6(4) of the Limitation Act applies to all actions for damages for negligence or breach of duty where the damages claimed include damages in respect of personal injuries; (3) the present claim was a claim for damages for negligence and was therefore time-barred at the commencement of these proceedings.

Masilaman Vellasamy v Attorney General & Anor [1988] 1 MLJ 3 High Court, Singapore (Chan Sek Keong JC).

The deceased died as a result of a car accident caused by the defendant, the driver of the car. The plaintiff, the deceased's administratrix, brought the action for the benefit of the estate and of N's mother as his dependant. The defendant admitted liability but disputed quantum. On assessment of damages, the registrar awarded general damages of S$37,800, using a multiplicand of S$600, a multiplier of 15 and an available surplus of 35%. The registrar dismissed the mother's dependency claim. The plaintiff appealed. The deceased was 22 years old at the time of his death. He was a hawker working at a stall run by the mother. She paid him S$600 per month. It was alleged that the net profit for the business was S$2,000-S$3,000 per month.

Held, allowing the appeal on the mother's dependency claim: (1) a dependency claim was based on the pecuniary loss suffered by the dependant upon the death of the deceased. For such a claim to succeed it was not necessary that there be distinct evidence of pecuniary advantage to the claimant, so long as there was some basis of fact from which the inference could be drawn that there was a reasonable expectation of pecuniary benefits to the claimant, and therefore of prospective loss from the death of the deceased; (2) in the instant case, the relationship between the deceased and his mother was not an employer-employee relationship, but a family arrangement under which the deceased provided services for his mother. The so-called salary paid to the deceased did not reflect the true worth of his contribution but was more in the nature of a family allowance. At the date of his death the deceased was contributing services to his mother which were reducible to money value and which were lost to her upon his death; (3) the court estimated that the net monthly value of the services lost was S$400. A multiplier of seven years was used to give a total of S$33,600. There was judgment for that sum together with interest at 3% from the date of the accident to judgment. As the mother was a beneficiary upon the deceased's intestacy, the dependency award would be reduced by the amount received by her as a beneficiary; (4) as for the appeal against the assessment of damages by the registrar, an appellate court would intervene only if the amount awarded was so high or low as to make it an entirely erroneous estimate of the damage suffered or if the registrar had acted upon some wrong principle of law. Neither of these grounds had been established and accordingly the appeal against the registrar's assessment was dismissed.

Ng Siew Choo v Tan Kian Choon [1990] 2 MLJ 333 High Court, Singapore (Yong Pung How J).

The plaintiffs were the widow and daughter of Yin Ah Joo (the deceased) who died in a road accident. Interlocutory judgment was entered against the first defendant and accordingly, damages were assessed by the assistant registrar. The first defendant appealed against the assistant registrar's award and when the award was varied, the plaintiffs appealed against the variations.

Held, remitting the case to the assistant registrar for reassessment of damages: (1) in assessing the claim of any dependant under s 12 of the Civil Law Act (prior to the 1987 amendments) the relationship between the deceased and the dependant and the personal circumstances of the deceased and the dependant (including the age, occupation, financial means and needs, and marital status) had to be considered to determine what the reasonable expectation would be. Following from this, different multipliers should be applied to each dependant if their circumstances differ. Consequently, the daughter's dependency claim had to be measured against the reasonable expectations of support of a person in her circumstances; (2) in such a family as one in the present case, the parents would support a child till he or she completed schooling and was able to seek employment. At the time of assessment, the daughter was 19-years-old and was attending school in Malaysia. It would be proper therefore, that the daughter's dependency claim be computed till she reached 21 years old; (3) as regards the deceased's post death income, the deceased worked at three jobs during the last year of his life. He was working in his last job illegally as a lorry attendant till he died. In an appropriate case, damages might be awarded even if a deceased was not holding a work permit when he died, if it could be shown that the deceased had worked legally for a long time, intended to continue to work in Singapore and would be able to resume his former employment and secure a work permit. But allowance had to be made for the contingency that he might lose his permit again; (4) the plaintiffs having failed to prove that the deceased was likely to resume work legally in Singapore, it would be unreasonable to assume that a person working illegally in Singapore at the time of his death would have been permitted to work here for another 14 years if he had not met with the accident. To do so would be against public policy.

Ling Kee Ling & Anor v Leow Leng Siong & Ors [1995] 2 SLR 189 High Court, Singapore (Kan Ting Chiu J).

The deceased was killed when he was struck by a car driven by the first appellant. At the time of death, the deceased was a pensioner aged 63 years old and was supporting his widow, the respondent. The respondent did not receive any pension after the accident. The magistrate held that the first appellant was wholly liable for the accident and awarded the respondent, inter alia, damages for future loss of support. The appellants appealed to the High Court on the ground that damages for future loss of support should not have been awarded according to proviso (iv)(a) to s 7(3) of the Civil Law Act 1956 because the deceased was over 55 years old at time of death.

Held, dismissing the appeal: (1) since the pension had been paid before the death of the deceased, proviso (i)(c) to s 7(3) of the 1956 Act did not apply in this case; (2) proviso (iv)(a) to s 7(3) of the 1956 Act provided, inter alia, that where a deceased person has attained 55 years old at the time of his death, his loss of earnings should not be considered in assessing the amount of damages in a dependency claim; (3) in this case, the respondent was claiming for damages for loss of support under s 7(3) of the 1956 Act instead of claiming for damages for loss of earnings. The deceased's pension could not be said to be 'earnings' within the meaning of proviso (iv)(c) to s 7(3) of the 1956 Act; (4) accordingly the amount of damages for loss of support to be awarded to the respondent under s 7(3) of the 1956 Act, should be based on the deceased's pension; (5) the court in this case adopted the purposive approach in interpreting s 7(1), (2) and (3) of the 1956 Act.

Lee In Fong & Anor v Zahara bte Johan, widow of Abdullah bin Othman (deceased) [1992] 4 CLJ 2108 High Court, Malacca (Mohd Noor J).

[Annotation: The judgment was delivered in Bahasa Malaysia.]

The administrators of the estate of the deceased claimed loss to the estate including loss of earnings for the lost years of the deceased who was killed in a motor accident in respect of which the action was filed. Liability was conceded by the defendants and the assessment of damages was heard before the registrar who found, after taxing down rather drastically earnings figures stated in evidence, that the deceased had three sources of income. The registrar declined, however, to take account of income earned by the deceased in running a taxi which was not licensed in the name of the deceased, but in the name of the father of the deceased, the said father having predeceased the deceased some years previously. The registrar further referred to the relevant notice of assessment of income tax payable by the deceased issued by the Director General of Inland Revenue to the deceased when alive, in which the deceased's taxable income was stated therein as RM10,176 for the whole year and the registrar averaged it to RM866.79 per month which she adopted as the basic loss of earnings per month, thus ignoring the earnings from the three sources she specifically found. The administrators appealed to the judge-in-chambers on two points: (a) the registrar's refusal to take into account the earnings from the taxi licensed in the name of the father of the deceased; and (b) the use of the average monthly income computed from the notice of assessment of income tax. The judge dismissed the appeal. An appeal was then brought to the Supreme Court.

Held, setting aside the order of the registrar which was upheld by the judge in the High Court: (1) the fact that officers of the Road Transport Department did not initiate any prosecution for any offence in respect of the use of the taxi licence could not legally amount to any such previous consent of the Road Transport Licensing Board to the continued use of the taxi by the deceased as stated in s 126 of the Road Traffic Ordinance 1958. Such user of the taxi licence by the deceased could undoubtedly be an offence under s 126. The continued use of the taxi licence by the deceased was undoubtedly also illegal, and the income earned from such illegal activity was therefore illegally obtained; (2) after most anxious consideration, the court decided that any claim for loss of earnings from any illegal source should not be allowed on the ground that it was against public policy. The court upheld the decision of the judge that the claim for the part of the damages as related to earnings from the illegal operation of the taxi should be disallowed; (3) as to whether a distinction should be drawn between income earned from a very minor transgression of law and that earned from serious crimes, the court decided that there is the great practical difficulty as to when to draw the line. To attempt to do so would certainly lead to a good deal of confusion and uncertainties; (4) the court was aware that in any case when the claim for dependency was solely based on income earned illegally, the dependants, though completely innocent of the illegality, would suffer an injustice and the tortfeasor would obtain an undeserved windfall. However, such personal interests of such dependants or other claimants would have to be sacrificed for the greater interests of the law; (5) as to the income figure from the Inland Revenue's source, the Supreme Court did not think that any court was bound by such a figure. It was relevant for cross-examination and for consideration by the court as to any probability of any income figure claimed by a plaintiff in evidence. A court should regard such figure from any notice of assessment as res inter alios and consider the evidence with an open mind; (6) the registrar should have adopted the practice of Gammell v Wilson for the assessment of damages for loss of earnings for lost years by adopting a figure as an appropriate number of years' purchase from the date of death of the deceased. The awards herein of pre-trial and post-trial losses could not stand; (7) the loss to the estate was what the deceased would have been likely to have available to save, spend or distribute after meeting the cost of his living at a standard which his job and career prospects at the time of death would suggest he was reasonably likely to achieve.

Chua Kim Suan & Anor v Government of Malaysia & Anor [1994] 1 MLJ 394 Supreme Court, Kaula Lumpur (Jemuri Serjan CJ (Borneo).

The respondent brought an action against the appellant under s 12(8) of the Civil Law Act (Cap 30, 1970 Ed) as the widow of Kwan Yat Hong for the benefit of the dependants of Kwan Yat Hong who was killed in a motor accident when his car collided with a motor bus driven by the appellants' servant on 26 May 1979. On 15 October 1982, judgment by consent was given for the respondent and damages were ordered to be assessed by the registrar and costs to be taxed. On 31 January 1983, the assistant registrar assessed the damages at the sum of S$3,000 for funeral expenses, S$59,808 to the respondent as dependency under s 12, S$44,856 to the respondent as dependency from the Central Provident Fund (CPF) and S$13,896 to the respondent for the mother of the deceased as a dependant. The respondent appealed against the decision of the assistant registrar. Abdul Wahab Ghows J increased to S$148,000 the dependency claim of the respondent and ordered that the award of S$44,856 as dependency from the CPF to remain. The deceased was aged 32. He was drawing a basic salary of S$950 pm as a store purchasing officer.

Held: (1) S$20,000 of the S$148,000 was for the mother; (2) the assistant registrar when taking the respondent's dependency to be S$400 pm had failed to take into account the pecuniary loss which it was estimated the dependant would sustain in the future; (3) the learned judge had applied the principles laid down in Cookson v Knowles [1978] 2 All ER 604 and did not err in law; (4) the learned judge did not in fact increase the dependency claim of the respondent from S$59,808 to S$148,000. The learned judge increased it to S$128,000;CPF contribution formed part of the widow's dependency claim.

Singapore Bus Service (1978) Ltd v Lim Soon Yong [1983] 2 MLJ 306 Court of Appeal, Singapore (Kulasekaram, Sinnathuray and Chua JJ).

The first plaintiff, the widow of the deceased, sued the defendant for damages as administratrix of the estate of the deceased, claiming on behalf of the estate under the Law Reform (Miscellaneous Provisions) Act 1934. It was established at the trial that the defendant was wholly responsible for the motor accident that had caused the deceased's death. The second plaintiff suffered injuries in the accident (a cut on the forehead exposing the bone, a scratch on his elbow, a mild compressed fracture to the spine and a cut above the right eye which left a scar). The deceased was 44 years old at the time of death and worked as a car salesman but also derived other income from related work. It was possible in this instance to assess the amount which the deceased paid monthly to those who were dependent on him and the court regarded the established family dependancy as the one which would govern the amount due to the family under the Fatal Accidents Act. His dependants were his wife, son (aged 81/2 at the time of the accident), daughter (who died 20 months after the accident), father (born in 1925) and mother (about same age as father). The wife's dependency (including those of her two children) excluding food and household expenses was $1,850. The deceased had been giving his father $500 a month on average. The court, in awarding damages assumed that the amount of dependency for food and household expenses (determined as $350) of the children were the same as that for the adults. Separate multipliers were taken for the dependents as it was more realistic in the circumstances despite such practice having been disapproved in a previous authority. There was difficulty in assessing the deceased's income at the time of his death as his family knew little about his income and expenditure and there was no tax return in Brunei. The court used the deceased's bank statements in calculating his income even though they were not an accurate guide as there was only limited material on which to base his assessment. The court calculated his income by adding the sum he paid monthly to household expenditures (B$6,500) and half of the total sum he had paid into his current and savings accounts monthly (B$6,200 for both). The figure was rounded off to B$12,000 per month. Damages were awarded to the first plaintiff as follows: Under the Fatal Accidents Acts. Pre-trial loss wife: B$105,600 ((1,850 + 350) ´ 48); son: B$16,800 (B$350 ´ 48); daughter B$7,000 (B$350 ´ 20); father: B$40,800 ((B$500 + 350) ´ 48); mother: B$16,800 (B$350 ´ 48). Total = B$187,000. Post trial loss wife: B$211,200 ((1,850 + 350) ´ 96); son: B$12,600 (B$350 ´ 36); father: B$51,000 B$500 + 350) ´ 48); mother: B$21,000 (B$350 ´ 60). Total = B$295,800. Under the Law Reform Acts lost years (paid to widow) (multiplier determined as 12 years, 25% reduction to reflect deceased's personal expenses had he lived as there was little evidence of his lifestyle) pre-trial: B$432,000 (B$12,000 ´ 48 25%); post-trial: B$864,000 (B$120,000 ´ 96 25%). Total due to widow = B$979,200 (B$1,296,000 less B$316,800 (Fatal Accidents Acts award to widow)). The award for funeral expenses was B$23,000 (figure reduced as cost of tomb as claimed was unreasonable. The figure was reduced to reflect what was cost of a headstone). Special damages of B$3,500 was awarded for value of the deceased's damaged car.Damages for loss of expectation of life, fixed at B$5,000 ten years ago, was increased to B$6,000 to reflect inflation. Damages of B$15,000 were awarded for the second plaintiff's injuries and for pain and suffering. Special damages (damage to clothing, shoes and travel) were B$290.Interest. There were conflicting authorities on interest and these were unsatisfactory. The court tried to reflect reality and awarded interest (a) at 3% on special damages from date of accident to date of judgment (b) 3% on damages for loss of expectation of life from date of accident to date of judgment (c) 6% for the award under the Fatal Accident Acts from date of accident to date of judgment (d) no interest for the award under the Law Reform Act for the lost years (e) no interest for the award under the Fatal Accident Acts for post trial losses (f) 6% on the second plaintiff's award.

Fong Moi Yin (Administratrix of estate of Tan Ah Ngun) & Anor v Rapian bin Suhaili & Anor Civil Suit No 204 of 1990 High Court, Brunei (Roberts CJ).

This suit arose as a result of a collision between car No C6917 driven by one Tung Mun (deceased) and the car No CB2486 driven by one Mohamed (also deceased). The first plaintiff was the widow and administrator of the estate of Tung Mun. The defendant originally was the Official Administrator but later was substituted by Bidah bte Daud, the widow of Mohamed. The collision occurred on 30 May 1974 near 32ms. Kuantan/Kemaman Road. There were no eye-witnesses to the collision. The drivers of both vehicles died in the collision. The court was therefore left with only the sketch plan, photographs of the damages to both vehicles to decide as to the liability. Both parties agreed that the collision took place on a straight stretch of road and that the driver of vehicle C6917 was proceeding towards Kemaman and the driver of vehicle CB2486 was proceeding from the direction of Kemaman towards Kuantan. The sketch plan and photographs revealed that this was not a head-on collision. The point S in the sketch would indicate the point of impact which was on the other side of the road as one faces Kuantan. It showed that vehicle CB2486 which was being driven from Kemaman to Kuantan had gone on to the other side of the road that was in the path of the oncoming vehicle C6917 which was being driven from Kuantan towards Kemaman. The deceased plaintiff was 60 years old. The widow said that she received RM$1,000 per month from him for household expenses. There was no evidence of the deceased's actual monthly earnings and the court had to rely on the widow's evidence. The defence produced the deceased's income tax assessment for 1973 which showed that he was assessed for RM$501.08 and from this it was deduced that his nett average earnings could not be more than RM$800 per month.

Held (1) every evidence available pointed to the driver of car CB2486 being on the wrong side of the road thereby resulting in the collision. The driver of car CB2486 was therefore solely liable; (2) merely producing an income tax assessment could not show the actual earning without more details of deductions, etc. The widow's evidence on the amount she used to receive from her late husband had not been disproved. In the circumstances a dependency of RM$500 was a fair and reasonable figure to arrive at. Having regard to the accused's age of 61, a multiplier of six years would be reasonable; (3) general damages of RM$36,000 and special damages of RM$945 were allowed.

Chong Sow Ying & Anor v Official Administrator [1984] 1 MLJ 185 High Court, Kuantan (Shaik Daud J).

X was driving a motor bus along a stretch of road (which had a slight left bend) when a motor lorry (driven by the first defendant) coming from the opposite direction encroached onto his side of the road. X quickly manoeuvred the bus to the left but to no avail. The motor lorry crashed into the right rear-side portion of the bus causing extensive damage. X then stopped the bus. The first defendant fled the scene and the lorry was left abandoned on X's side of the road. The motor cycle driven by the deceased at the material time was lying underneath the lorry. The defendants suggested that the accident was caused by the contributory negligence of the deceased, that the deceased did not see the earlier collision between the motor bus and the motor lorry and by the time he reached the brow of the hill, he realised it was too late for him to brake in order to avoid colliding into the stationary lorry that had blocked almost the whole left side of the road. The plaintiffs were the parents of the deceased, who were dependent on the deceased's support. The plaintiffs relied on the doctrine of res ipsa loquitur to show that the first defendant, who drove the motor lorry at the material time, was negligent.

Held, allowing the plaintiffs' claim and assessing damages as follows: (1) the event which the plaintiffs relied upon was that the motor lorry suddenly encroached and entered on its wrong side and there collided with, firstly, the motor bus and, secondly, the deceased's motor cycle, which were being driven and ridden respectively in a normal manner and on the correct side of the road. In the ordinary course of things, such an event could not happen if the first defendant as driver of the motor lorry had used proper care and the fact that it did happen the way it did established a prima facie case of negligence against the defendants; (2) the plaintiffs would therefore succeed unless the defendants rebutted this prima facie case which they might do in one of two ways either by proving that the event, ie the sudden turn of the motor lorry across the road on its wrong side, was due to a specific cause and such cause was not attributable to lack of care on their part, or, that that event was due to some cause unknown but the first defendant as the driver of the motor lorry throughout the whole episode exercised reasonable care; (3) they had not rebutted their onus. The police report filed by the first defendant did not rebut the case for the plaintiff; (4) it was established beyond doubt that the accident occurred on X's correct side of the road because of X's testimony and the fact that the motor cycle was entangled underneath the motor lorry and all three vehicles were located on the left side of the road. By necessary inference, the deceased was travelling the same way as X because the defendants did not put to X that the deceased came from the opposite direction; (5) when the first defendant encroached onto X's path, he had entered the continuous double white lines and in doing so he had breached r 21 of the Highway Code. Looking at the frontal damage to the motor cycle and the damage incurred by the lorry from the photographs, the first defendant did not reduce his speed on entering the brow of the hill and consequently, the first defendant had also ran foul of r 23 of the Highway Code. The first defendant was wholly to be blamed; (6) special damages must be specifically pleaded and proved and it was not enough for the plaintiff to simply write down the particulars and throw it to the court to decide. The exact loss must be pleaded as it had become clear that it could be measured with certainty and with complete accuracy. In this way, the defendants would not be put off-guard and they would know what they had to meet when the case came up for trial; (7) special damages was agreed at RM4,022; (8) for the father, pre-trial loss was assessed at RM3,700 whilst post-trial loss was assessed at RM4,700 by applying a multiplier of 7; (9) the defendants must prove that throughout reasonable care was exercised and everything was done to the level that a reasonable, careful and competent driver would have excercised in these circumstances. The defendants did not adduce evidence through themselves or call witnesses to rebut the negligence that had been shifted to them;for the mother, pre-trial loss was assessed at RM7,400 whilst post-trial loss was assessed at RM9,400 by applying a multiplier of 7.

Lee Tai Kau v Fajanderan Manickam Civil Suit No 23-236 of 1992 High Court, Johor Bahru (Abdul Malik Ishak J).

On 1 May 1988, an accident occurred between a motor car driven by the first defendant and owned by the second defendant, and a motor cycle ridden by the deceased with the second plaintiff riding as pillion. The second plaintiff sustained serious injuries. The first plaintiff, the widow of the deceased, brought an action against the defendants on a dependency claim on behalf of herself and seven of her children under s 7 of the Civil Law Act 1956 ('the Act'). Despite a finding by the sessions court that the first defendant and the deceased were equally to blame for the accident which caused the death of the deceased, damages were awarded to the first plaintiff based on a 100% liability. On appeal, two issues arose for the consideration of the court. Firstly, whether the first plaintiff, being a dependant, was to be subjected to a reduction in damages according to the percentage of liability attributable to the deceased. Secondly, whether a reduction should be made to the dependency loss when there is evidence that the dependant has derived benefits from the death of the deceased.

Held, allowing the appeal on the first issue and dismissing the appeal on the second issue: (1) s 12(4) of the Act clearly stated that in an action brought by a dependant under s 7, damages recoverable by the dependant should be reduced proportionately to the extent of the deceased's fault in the accident. There was no ambiguity in the wording of this particular section of the Act which expressly provided for applications both under ss 7 and 8 of the Act. To impose any other requirement would be tantamount to writing into the statute by the courts provisions which do not exist therein; (2) the sessions court had erred in awarding the first plaintiff damages based on a 100% liability. This award of damages had to be reduced by 50% which was the proportionate blame attributed to the deceased in accordance with s 12(4) of the Act; (3) it was an accepted general principle that benefits occurring to the dependant by reason of the death of the deceased should be taken into account to reduce dependency claims. However, these benefits should not be derived at the effort and expense of the dependant. In this case, the first plaintiff managed to earn RM425 per month from the estate of the deceased by her ability, ingenuity and industry in the management of the estate. There was no necessity for her as a housewife to work, since there was no obligation in law for dependants to mitigate their losses. The earnings of the first plaintiff was a result of her own labour and not a gain resulting from the deceased's death, and therefore should not be deducted from the dependency loss.

Lim Chai Oon & Anor v Normah bte Ismail & Anor [1994] 3 MLJ 105 High Court, Johor Bahru (James Foong J).

Muhamad bin Hashim v Teow Teik Chai & Anor [1996] 4 MLJ 7 High Court, Pulau Pinang (Jeffrey Tan JC).

See CIVIL LAW ACT, para 103.

The deceased, aged 31 and a police constable at the time of his death, was killed in a motor accident caused by the defendant. The plaintiff, the deceased's wife, started a dependency claim on her behalf as well as on behalf of her two daughters. The registrar awarded her S$51,000 for pre-trial loss of support, S$165,000 for future loss of support and S$40,000 for loss of CPF benefits. The defendant appealed against the awards, contending that the plaintiff should not be awarded pre-trial loss as she was working and was not supported by him and that the CPF moneys should form her inheritance, not her dependency claim.

Held, dismissing the appeal: (1) on the evidence, the deceased would, if not for the accident, have been promoted to a corporal in October 1990 and thus, would be earning more. From the date of the accident, 21 September 1990, to the date of assessment, 12 January 1995, was a period of 51 months. Taking an average of S$1,000 per month contribution, this would amount to a pre-trial loss of S$51,000; (2) on the evidence, the deceased would, if he had been alive, have been promoted to a sergeant. By the year 2001 when the plaintiff would have been aged 41, he would have a very good chance of being made a staff sergeant. Taking the mean wage of the deceased to be S$2,200 per month, a contribution of S$1,400 per month towards the upkeep and well-being of the family would not be excessive; (3) the principle that the loss attributable to the cessation of contributions to the CPF forms part of a dependency claim can no longer be in doubt.

Ang Song Huay v Chu Yong Thiam Suit No 196 of 1993 High Court, Singapore (Chao Hick Tin J).

L died as a result of an industrial accident on 28 April 1983. He was a welder. L's widow brought an action for damages claiming on behalf of the estate and on behalf of herself and L's children as dependants. Liability was agreed, L was 5% to blame, the first defendant 80% to blame and the second to fourth defendants jointly15% to blame. Arguments were heard in respect of the dependency and estate claims.

Held: (1) there was a shortage of welders in Singapore, no doubt as a result of this shortage L would have earned much more at the date of judgment; (2) if L had been alive at the date of judgment he would have been earning between S$2,500 and S$3,000 per month; (3) a multiplicand of S$2,500 would be used, and a multiplier of 12 would be appropriate; (4) the purpose of the multiplier was to estimate the outside limit during which the deceased would have been able to provide benefits to a dependant, for the probable length of the deceased's remunerative working life; (5) if a particular dependant's share in the estate claim was more than his dependency claim, then the award as beneficiary would stand; (6) conversely, if the dependency claim award was greater than the apportionment as a beneficiary, the dependency claim award would stand; (7) L's widow went through very difficult times after L's death. She had to work two jobs. Taking this into account her pre-trial dependency loss would be assessed at S$54,120; (8) her post-trial loss would be based on an award of S$750 pm for 44 months; (9) his dependency would be S$47,510; (10) L's daughter's dependency would be S$47,190; (11) L's younger son's dependency would be S$36,950; (12) 3% interest would be awarded in respect of the pre-trial dependency loss other than the pre-trial CPF contributions; (13) as regards L's first son, he had to stop school to work to help his mother. For the purpose of his loss, the fact that he did not continue through secondary school was, irrelevant. What was relevant was the benefit which he would have derived from the continuation of the father's earnings and which he lost by the father's untimely death;the claim for CPF contributions was a contingent or future loss, not an actual or present loss. There would therefore be no award of interest on the pre-trial or post-trial loss of CPF contributions.

Teoh Mee Sun & Anor v Asia-Pacific Shipyard Pte Ltd & Ors Suit No 11143 of 1985 High Court, Singapore (Warren Khoo J).

The deceased was 20 years old at the time of his death. He died after being run into by a motor van driven by the defendant. The parties agreed liability at 50% and quantum for loss of expectation of life, special damages, pain and suffering, and surplus. There was no agreement of the question of lost years earnings. At the time of his death the deceased was an engineering graduate serving a six-year contract as a navy officer. Evidence was led at the trial that the deceased joined the navy to gain experience and intended to join the private sector after his contract with the navy had expired. The plaintiff's calculation of the multiplicand, therefore, took into account the deceased's prospects in the private sector. The defendant disputed this calculation.

Held, allowing the plaintiff's claim in part: (1) the deceased's academic background was excellent, and it was not unlikely that he would have excelled in his vocation; (2) the court could not, therefore, ignore the employment opportunities and the salary scales in the private sector to arrive at an objective multiplicand; (3) a fair and reasonable assessment of the possible maximum salary of the deceased would be S$10,000. Taking into account the deceased's salary at the time of his death (S$2,000) the median would be S$6,000 (S$10,000 + S$2,000 divided by 2); (4) allowing 40% available surplus, the lost years earnings would therefore be S$2,400 ´ 13 months ´ 15 years = S$468,000.

Wu Nan Wah v Chan Teck Chwee Suit No 12792 of 1985 High Court, Singapore (Rubin JC).

This case raised two important points concerning the award of damages under ss 7 and 8, Civil Law Ordinance. The deceased was a member of the crew of a motor junk and apart from his wages as such, he derived some income from private trading by importing and exporting what was alleged to be precious stones in contravention of the customs legislation. Defendant's counsel submitted that this part of the deceased's earnings should not be taken into account.

Held:

Tan Chooi Thin & Anor v Teo Whee Hong [1953] MLJ 203 High Court, Penang (Buhagiar J).

The deceased, a healthy man of 29 years, was an unlicensed pork seller. He was killed as a result of a collision between a motor car and the lorry in which he was travelling. He had dependants and his earnings were about S$300 per month.

Held: on the facts, both the car and lorry drivers were equally liable for damages. Having regard to the fact that the deceased was an unlicensed hawker, it was not possible to say what his prospects were and damages were assessed under s 8 of the Civil Law Ordinance and for loss of expectation of life.

Kang Bark Teng v Lee Kwee Lim [1952] MLJ 27 High Court, Singapore (Rogers J).

In these cases, the claims were for damages arising out of an account in which two female tappers aged 18 and 21 respectively lost their lives in consequence of being knocked down by a motor vehicle belonging to the first defendant and driven by the second defendant. The actions were brought by their legal representatives for the benefit of their respective estates under the Civil Law Ordinance 1956 and on behalf of the parents of the deceased. The claims were for (a) loss of support; (b) loss of expectation of life; and (c) funeral expenses. The defendants admitted liability and the only issue at the trial was the quantum of special and general damages.

Held: (1) the sums of RM2,713.20 and RM1,558.80 should be awarded for loss of support in these two cases respectively. Since the claim under s 8 merges with the claim under s 7 the sum of RM3,000 should be awarded as general damages in each case; (2) the conventional figure of RM3,000 for damages for loss of expectation of life in the case of a young adult should be followed unless there is evidence of a substantial fall in the value of currency.

Koo Wah & Anor v Wong Ying Choon & Anor; Lee Seng & Anor v Same [1965] 2 MLJ 21 High Court, Ipoh (MacIntyre J).

This was an appeal against the quantum of damages awarded in a case arising under ss 7 & 8 of the Civil Law Ordinance. The respondents claimed for damages and cost of applying for letters of administration brought by them as administratrix and administrator respectively of the estate of one Chia Boon Poh alias Chia Boon Pah under the provisions of the above sections as amended by the Civil Law (Amendment) Ordinance, 1940. The deceased was a trishaw rider aged 49, in a good state of health, and was earning between S$8 to S$10 a day and lived with his family. The widow received from the deceased a sum of S$8 a day to run the home. There were four children of the marriage, but one was now earning and able to support himself. The widow sold coffee from the house in which the family lived, and earned about S$100 a month, such earning being unaffected by the death of the deceased. On 3 June 1951, the deceased was riding his trishaw along Geylang Road at or near the junction of Lorong 40 when he was run into and knocked down by the motor car driven by the appellant and killed. The appellant admitted negligence and the only question for decision was as to the question of quantum of damages. The trial judge awarded S$2,000 under s 7 and S$15,000 under s 8 of the Civil Law Ordinance.

Held, on appeal, affirming the decision of the trial judge: the awards made in the court below were not so manifestly excessive that they required reduction. As no reason was given as to how the sums awarded were calculated and specific points argued by counsel in the court below were not made the subject of specific findings, the proper way to deal with the appeal was to reassess the amount awarded in the light of settled authority for the purpose comparing the result with the awards made in the court below. It was convenient in cases of this kind if the basis for calculating awards under s 8 of the Civil Law Ordinance were fully set out and the award to each dependant calculated separately.

Lim Joo Chiang v Lim Siew Choo & Anor [1953] MLJ 231 Court of Appeal, Singapore (Mathew CJ (FM).

These actions arose out of a collision between two motor cars SC5973 and SC81 on the Johore causeway on 29 May 1954. The plaintiff in civil suit no 3 of 1955 was the widow and administratrix of the driver of motor car SC5973 who was killed by the collision, and brought the claim under the Fatal Accidents Enactment. The plaintiff in the other suit was a son and administrator of the person sitting next to the deceased driver, who was also killed as a result of the collision, and brought the claim on behalf of the daughter of the deceased, aged 19. The defendants in both actions were the driver and owner respectively of motor car SC81 at the time of the collision. The learned judge found as a fact that the first defendant was driving SC81 with the consent and permission of the second defendant, the owner. The second defendant, apart from being the owner of the said car, appeared to have had no control over the car at all. There was no evidence whatever as to the first defendant being his servant or agent.

Held: (1) in the circumstances of the case, the first defendant was liable in damages to the plaintiffs in both actions; (2) the claim in both actions as against the second defendant failed; (3) in assessing damages under the Fatal Accidents Enactment, the starting point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend on the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will give a datum or basic figure which will generally be turned into a lump sum by taking a certain number of years' purchase. The sum has to be taxed down by having due regard to uncertainties: for instance, that the widow might have again married and thus ceased to be dependent, and other like matters of speculation and doubt.

Liew Soon Oi v Yap Fui Thong & Anor [1956] MLJ 181 High Court, Johore Bahru (Storr J).

The deceased was nearly 30 years old when she was killed in the collision between the vessel Eniwetok and the Sentosa cable car line. She was a qualified doctor and was working as a locum prior to setting up her own clinic. The award to her estate in respect of her lost years of earnings was appealed against by the defendants as follows: (a) it was computed on the basis of a total of almost 21 years whereas the correct multiplier should have been 13; (b) according to the defendants, the multiplicand applied was an average monthly income of the deceased of S$14,250 which they submitted was astronomically high; (c) the percentage of available surplus applied to the case should have been 30% instead of the 40% adopted by the learned senior assistant registrar; (d) the award of interest on the pre-trial portion of the claim was wrong in law.

Held, allowing the appeal in part: (1) the long established principle both in England and in Singapore was that the appeal court would only interfere with an award of damages when it was convinced either that the trial judge acted upon some wrong principle of law or secondly that the amount awarded was so manifestly high or low as to have been a wholly erroneous estimate of the damage; (2) in a fatal accident case, the multiplier had to be calculated from the date of death and not from the date of the trial. On the facts of this case, the correct multiplier to be applied should be 16 years; (3) on the issue of the multiplicand, it was manifest that where there was evidence to support such a finding, the lost years could be divided into a number of sub-periods and the lost income for each such period assessed separately; (4) and bearing in mind that she was a frugal person, the appropriate available surplus in respect of the deceased here should be 35%; (5) while as a general rule interest on lost years earnings will not be awarded, where the circumstances show that the estate has been kept out of its money by reason of unreasonable or unjustified conduct on the part of the defence, compensation by way of interest may be made to the plaintiff. In this case, the plaintiffs have not been kept out of their moneys by any unreasonable behaviour on the part of the defendants and accordingly, the award of interest is set aside; (6) where there was monthly CPF contributions which amounted to 40% of an individual's salary, the available surplus should normally be more than 40% unless the court found that the relevant deceased was such a spendthrift that he would be unable to save a single cent. As the present trend was to make the self-employed contribute to CPF in order to provide for their medical expenses at least, the deceased here would have some amount of CPF contribution;the deceased had a close relationship with her mother whom she supported; and as the possibility that the deceased would have ceased to support her mother was remote, there was no basis to change the multiplier and multiplicand assessed as regards the dependency claim.

Lim Fook Lau & Anor v Kepdrill International Incorporated SA & Ors [1993] 1 SLR 917 High Court, Singapore (Judith Prakash JC).

Soh Hau Huat, Administrator of the Estate of Soh Mee Leong, Deceased v Mohd Nor bin Taya & Anor [1992] 4 CLJ 2185 High Court, Kuala Lumpur (Lim Beng Choon J).

See DAMAGES (PERSONAL INJURY OR DEATH), Vol 6, para 819.

On 26 June 1983, L met with an accident in front of 522 Kampong Bahru Road. He was riding a motor cycle at the time and was 24 years old. L suffered a lacerated brain and a fractured skull and died from his injuries. The plaintiff, the administrator of L's estate, brought an action against the defendant claiming damages for the benefit of the dependants of L and for L's estate. At trial, the plaintiff was the only witness called for his case, and he relied on the police report made by the defendant on 27 June 1983. In the report the defendant had stated that while driving his lorry along Kampong Bahru Road he had been stopped by a taxi driver who told him that he (the defendant) had been involved in an accident with L. The defendant gave evidence that the taxi driver told him that a motor cycle had collided into the rear of his (the defendant) vehicle. The defendant had stopped his vehicle and found L lying at the entrance of 522 Kampong Bahru Road. The defendant also gave evidence that he did not think that he had caused the accident because he did not feel any impact on or collision with his vehicle. He had made the police report only because the police told him to do so.

Held, allowing the claim: (1) the defendant had made an admission in his police report that he was in a collision with L's motor cycle, which admission would be accepted as evidence of the accident; (2) negligence might be inferred from facts which made it more probable that it was negligence on the part of the defendant which caused the damage in question than any other cause. Having arrived at the conclusion that the defendant's vehicle was involved in a collision with L's motor cycle, and in view of the fact that the police sketch plan showed that the motor cycle was lying beyond the left edge of Kampong Bahru Road and that L had fallen at the entrance leading to the gate of 522 Kampong Bahru Road, the inference to be drawn was consistent with the negligence on the part of the defendant than any other cause; (3) the plaintiff had succeeded in establishing a prima facie case of negligence against the defendant. This prima facie case was not rebutted. The defendant's evidence in court was different from the brief description of the accident given in his police report. In the latter the defendant said that the taxi driver told him that his vehicle had collided with a motor cycle, and not that a motor cycle had collided into the rear of his vehicle. The police report was a contemporaneous document and it was very likely to have recorded the actual version of what the taxi driver told the defendant; (4) having seen the defendant giving evidence, the court did not believe that he was telling the truth, and even if he was, the statement of the taxi driver was only admissible for the purpose of proving the fact that the statement was made and not for proving the truth of the statement; (5) L was unconscious soon after the accident and he died one day after the accident. There would therefore be no award for pain and suffering; (6) the multiplicand should be the average net earnings of the deceased over the relevant period of years, if he had lived and the multiplicand by its very nature did not readily allow itself to be an exercise of mathematical precision, including possibly separate calculations for different periods of his working life. What was needed was a fair and reasonable assessment of what the net earnings of the deceased might be, bearing in mind that earnings were subject to the vagaries of life; (6) having regard to the circumstances of L a multiplier of 15 would be applied to a multiplicand of S$10,000 per year. The available surplus would be 40% of net earnings; (7) the dependency claim would be assessed at S$150 per month for eight years (S$14,400) in respect of the pre-trial loss and at S$150 per month with a multiplier of 7 (S$12,600) for the future loss. As the dependants were also the same beneficiaries of the estate, the dependency claim would be merged with the estate's claim.

Lee Ngiap Hoon v Teo Sin [1992] 1 SLR 831 High Court, Singapore (Goh Phai Cheng JC).

A motor car driven by the first defendant ran into and knocked down the deceased and the second and third plaintiffs who were all standing on the divider, waiting to cross the road. The first defendant was trying to overtake another motor car driven by the second defendant, which was itself moving out from its lane to avoid a road sweeping vehicle driven by a servant or agent of the government of the Republic of Singapore. Arising from the accident, the widow of the deceased and her brother, as administrators of the estate of the deceased, together with the second and third plaintiffs, brought an action against the first defendant for damages. The second and third plaintiffs claimed damages for personal injuries and consequential loss. The second and third defendants were joined as parties by an order of court. Before the hearing commenced, liability was admitted by the first defendant as to 65% and by the second defendant as to 35%. In the course of the hearing, the parties also agreed on a multiplier of 10 to be applied in determining lost years' earnings, and on the following amount of damages: (a) S$7,000 for loss of expectation of life; (b) S$5,000 for funeral expenses; (c) S$750 for cost of letters of administration; (d) S$3,000 general damages and S$100 special damages for the second plaintiff; (e) S$8,200 special damages for the third plaintiff. At the date of his death, the deceased was 46 years old, and was in good health. He had worked for bus companies. As a ticket inspector in 1975, his earnings had been S$345 per month. He had risen to be a chief ticket inspector in 1978 with earnings of S$660 per month, and at the date of his death he was earning a gross salary of S$1,020.43 per month.

Held: (1) the cause of action having arisen in 1981, the claim for the estate of the deceased was made under s 8 of the Civil Law Act (Cap 43, 1985 Ed) ('the Act') before the coming into force of the 1987 amendments; (2) in assessing the damages to be awarded, the agreement on a multiplier of 10 reduces the problem of determining the loss of future earnings during the 'lost years' to a narrower problem of determining the multiplicand. By its very nature it does not readily allow itself to be an exercise in mathematical precision. What is needed is a fair and reasonable assessment of what the net future earnings might be, bearing in mind that earnings are subject to all the vagaries of life; (3) a net income per year of S$19,000 would be fair, after adding the employer's Central Provident Fund ('CPF') contributions and after making allowances and provisions for income tax; (4) from this estimate of the loss of earnings during the lost years, there should be deducted the amount which the deceased would have spent exclusively for his own living and other expenses, as these would be expenses which would be saved by his death; (5) although the exact CPF rate varied from time to time, the court should use a figure of 40% of net prospective earnings as the amount unless there is persuasive evidence in a particular case that this would not be appropriate. In the present case, this would also appear to result in a fair and reasonable assessment of the available surplus; (6) cost of letters of administration S$750; (6) s 9 of the Act empowered the court to award interest on damages. In this case, interest should be calculated at 6% pa on the amount for loss of expectation of life and for special damages, from the date of the writ to the date of judgment. As the deceased died intestate, the general damages would be apportioned one-half to the widow and one-sixth to each of the three sons; (7) the deceased left a widow and three sons. Damages were also claimed for their benefit as the dependants of the deceased. Under s 12 of the Act, such damages could be awarded as were proportionate to the losses resulting from the death to the dependants respectively, and were based entirely on the financial loss to them; (8) the purpose of an award of damages was to provide the widow and other dependants of the deceased with a capital sum, which, with prudent management, would be sufficient to supply them with material benefits of the same standard and duration as would have been provided for them out of the earnings of the deceased had he not been killed by the tortious act of the defendant; (9) there were several ways of approaching a valuation of a dependency. An acceptable method was to estimate the amounts which the deceased could have been expected to provide for the widow and for each of the three sons had he lived, based on the estimates of his likely net earnings and their needs during the relevant years in which he would have provided for each of them; (10) an issue which was raised in argument before the court was whether the dependency of the three sons should include an estimate of the loss of the additional CPF contributions which could have been expected, had the deceased lived. It was submitted by the plaintiffs that this would have been covered by the general claim for damages by the dependants for having been 'deprived of the pecuniary and other benefits which they would have received had the deceased continued to live'. But the defendants contended that there had not been sufficient evidence in this case for the court to come to any conclusion that the children would be entitled to the benefits from these additional CPF contributions which have been lost; (11) the principle that the loss attributable to the cessation of contributions to the CPF forms part of a dependency claim could no longer be in doubt since the Privy Council decision in Singapore Bus Service (1978) Ltd v Lim Soon Yong [1985] 2 MLJ 267; (12) there had been several significant variations in the rates of the respective contributions. Nevertheless, it was possible to make a calculation to arrive at an appropriate figure, bearing in mind that what was arrived at is the accelerated receipt of a lump sum which should be discounted; (13) interest should be calculated at 3% pa on the amount of damages for dependency from the date of the accident until the date of judgment; (14) as the dependents were also beneficiaries of the estate, the awards to them as dependants would be reduced in each case by the respective amounts received through the estate as beneficiaries; (15) as regards the second plaintiff's claim, her general damages for pain and suffering were agreed during the hearing on which interest should be calculated at 6% pa from the date of the writ to the date of judgment; (16) damages to the first plaintiffs for the estate of the deceased should therefore be: General damages: lost years' earnings S$7,000; loss of expectation of life S$7,000; Special damages: funeral expenses S$5,000;with regard to the third plaintiff's claim for general damages, although a Malaysian case had awarded damages for anxiety neurosis, in the present case, the medical evidence on this aspect of her condition after the accident showed that she suffered no more than the mental anxiety that would have been the normal reaction after such an accident. She informed the court that she considered herself to have been cured, her complaints had not affected her work and had not prevented her from being promoted. The court did not feel justified in acceding to the submission to award additional damages under another head of claim. In addition to the agreed special damages of S$8,200, a fair award for general damages should be S$15,000, with interest on both sums at 6% pa from the date of the writ to the date of judgment.

Lee Wee Hiong & Anor (Administrators of the estate of Lee Liak Meng (deceased)) & Ors v Victor Koh Ah Sai & Ors [1990] 1 MLJ 340 High Court, Singapore (Yong Pung How J).

In this case, the facts were that the first respondent had borrowed a car from his brother, the second respondent, to see a cinema show with his friend, the deceased. There was an accident on the way back from the cinema and the friend was killed. The appellants, the administrators of the estate of the deceased, brought an action for damages against the respondents. At the trial, the first respondent gave evidence and denied negligence. The learned trial judge accepted the evidence of the first respondent as he held that his evidence was corroborated by the report and the previous statement made by him at the coroner's inquest. The learned trial judge also dismissed the action against the second respondent as he held that the appellants had not pleaded the cause of action against him. The appellants appealed.

Held: (1) the learned trial judge had misdirected himself on the question of corroboration as neither the previous statement of the first respondent nor his statement to the police (which was not a first information report) could be used to corroborate his evidence effectively; (2) the learned trial judge had also wrongly made findings of fact as to the speed of the car and its going on the grass verge which were not supported by the evidence; (3) as the first respondent had not adduced a reasonable explanation of the accident, which on the doctrine of res ipsa loquitur was consistent with negligence on his part, judgment must be given against him; (4) the second respondent was not responsible for the negligence of the first respondent as there was no evidence to show that at the material time the first respondent was the second respondent's servant or was acting on the second respondent's behalf as his agent.

Karthiyayani & Anor v Lee Leong Sin & Anor [1975] 1 MLJ 119 Federal Court, Ipoh (Suffian LP, Lee Hun Hoe CJ (Borneo).

In this case, the learned trial judge had dismissed an application for damages arising from a fatal road accident in which the bicycle ridden by the deceased came into collision with a motor car driven by the second respondent. The deceased was 35 years old and earned RM326 pm. In the circumstances, general damages was assessed at RM25,000 (RM245 x 12 years' purchase), four-fifths of which would represent the award to the plaintiffs.

Joginder Kaur & Anor v Malayan Banking Ltd & Anor [1971] 1 MLJ 98 Federal Court, Ipoh (Ong CJ (Malaya).

The deceased was a 36-year-old staff sergeant in the Malaysian Armed Forces. He was killed in a road accident on 5 July 1981 leaving behind a 26-year-old widow and three children aged 12, 8 and 3 years respectively. The defendant driver was found wholly to blame for the collision and now appeals against the quantum of damages.

Held: (1) (f) RM1,534 being agreed special damages; (2) (d) RM50,000 to the son Balamurugan, aged 3; (3) the plaintiff is awarded as follows: (a) RM20,980 being special damages for pre-trial loss of earnings; (b) RM61,773.88 being general damages for post-trial loss of future earnings in respect of pre-retirement period; (c) RM18,532.17 being general damages for post-trial loss of future earnings in respect of post-retirement period; (d) RM61,797.12 being general damages for loss of pension; (e) RM14,417.34 being general damages for loss of gratuity;the damages are apportioned as follows: (a) RM57,500.51 to the widow; (b) RM35,000 to the daughter Rookini, aged 12; (c) RM35,000 to the daughter Shanti, aged 8;the children's share of damages be paid to the Public Trustee to be held by him, in trust, pending the attainment of the age of majority in each case but with liberty to apply.

Nani v WG Williams [1986] 2 MLJ 68 High Court, Penang (Edgar Joseph Jr J).

On 24 April 1978, one Cheah Soi Moi ('the deceased') was killed when the motorcycle he was riding was knocked into by a motor car. On 17 July 1979, his mother commenced an action, suing the car driver as administratrix of the deceased's estate and in her own capacity as dependant, for damages under ss 7 & 8 of the Civil Law Act 1956 (Act 67). In default of defence, an order was made precluding the defendant from defending the action. The case was set down for hearing for damages to be assessed. In his assessment of damages, the learned President granted RM4,000 for loss of life, of which RM2,000 went to the deceased's father and the remainder merged with the plaintiff's dependency claim. She was awarded RM3,800 under this head, future dependency of RM7,920 and special damages of RM2,780 being RM2,000 for funeral expenses, RM400 for repairs to motor cycle and RM380 for administrative and other expenses.

Held: (1) dependency loss was reduced to RM75 pm from the RM100 pm assessed by the learned President while the number of years purchase was reduced from 17 years to 7 years (later brought down to 11 years and 3 months for contingencies), as the prospect of the deceased, a bachelor of 33 years, getting married was so much on the cards that the plaintiff could expect continued support for a further 7 years at the most; (2) there would be judgment for the plaintiff for RM9,601.72 being RM394 for special damages, RM4,000 for loss of expectation of life, of which RM2,000 should be paid to the deceased's father, and RM5,207.72 general damages for loss of dependency.

Chong Khee Sang v Pang Ah Chee [1984] 1 MLJ 377 High Court, Johore Bahru (Shankar J).

[Annotation: The award by the learned President of RM100 was restored by the Federal Court due to the lack of strong grounds for interference by the federal judge. The reduction of the number of years' purchase to 7 was upheld.]

The plaintiff claimed damages against the defendant for loss of expectation of life and loss to the estate arising from the death of her husband in consequence of injuries sustained when the car in which he was driven by the defendant crashed into a ravine. The deceased, 36 years of age, earned a net salary of RM169.50 pm.

Held: (1) the defendant was therefore liable in damages which would be assessed at RM3,000 for damages for loss of expectation of life and RM4,500 for damages for pain and suffering; (2) taking into consideration that one of the perquisites attached to the deceased's office was a rent-free house and the social status of the plaintiff, loss of support was assessed at RM85 pm for 12 years' purchase. General damages of RM9,037 was awarded.

Halijah v Velaitham [1966] 1 MLJ 192 High Court, Ipoh (MacIntyre J).

In this case, the plaintiffs sued on behalf of the dependants of one, Abdul Rahman bin Ismail, for damages arising out of a road accident wherein the said Abdul Rahman bin Ismail was killed. The widow of the deceased claimed loss of support of RM200 per month, the amount the deceased used to give her monthly. His monthly pay was RM157.17. He also earned about RM90 pm doing odd jobs in the kampong. They also tilled their padi lot together producing about 400 gantangs per year. The deceased was a religious teacher. Had he lived to retire in 1983 at 55 years of age, he would have achieved a salary of RM730 per month.

Held: (1) the tyre burst in this case was a neutral event consistent and equally consistent with negligence or due negligence on the part of the defendants. The evidence not only did not show the cause of the blowout but tended to show negligence on the part of the first defendant in using worn-out equipment. The defence of inevitable accident therefore failed and judgment must be given for the plaintiffs; (2) in the circumstances, there would be an award of RM40,800 as general damages, taking the quantum of loss of dependancy of RM200 per month and a multiplier of 17.

Zainun binti Abdul Ghani & Anor v Chong Ah Seng & Anor [1975] 1 MLJ 33 High Court, Seremban (Wan Suleiman FJ).

The deceased aged 28, was a self-employed 'pow' seller. He died in a motor accident as a consequence of the negligence of the appellant. His dependants were a widow, aged 23, three children aged five, four and one and parents. In the court below, a sum of RM29,904 damages was awarded. The appellant contended that this award was manifestly excessive having regard to the evidence adduced on the respondents' behalf with regard to the earnings of the deceased. The Federal Court agreed with the learned trial judge that as the deceased was only 28 years old when he died, a computation based on a purchase of 20 years was reasonable even if one took into account the possibility of the widow's remarriage. However, owing to the paucity of credible evidence as to the deceased's actual earnings from his business as a 'pow' seller, the court used its own understanding of conditions prevailing in Singapore with regard to one-man businesses of this particular kind to arrive at a reasonable figure which did not conflict with the evidence adduced, and allowing the appeal,

Held: the loss of pecuniary benefits to the dependants ought to have been assessed at the sum of S$140 per month which, on a purchase for 20 years, works out at approximately S$20,932.

Lim Ah Chi v Tan Ah Mui & Anor [1969] 1 MLJ 215 Federal Court, Singapore (Wee Chong Jin CJ, Tan Ah Tah FJ and Winslow J).

A 35-year-old female motorcyclist, wife of PW2, died as a result of injuries sustained by her in a road accident between her motor cycle and a bus driven by the second defendant.

Held: (1) the driver of the motor lorry was 70% to blame for the accident and the deceased motorcyclist 30% to blame; (2) the plaintiffs were awarded: damages in the sum of RM2,800 (70% of RM4,000) under s 8 of the Civil Law Act 1956 (Act 67) and agreed special damages, 70% of RM1,156 and interest; 70% of RM7,200 for loss of dependency at RM200 a month for three years from the date of death of the deceased to the date of judgment plus interest and 70% of RM22,500 for loss of dependency for a further period of 13 years with interest.

Lee Ban Hoo & Anor v S Veeriah & Anor [1982] 2 MLJ 188 High Court, Kuantan (George J).

In this case, the defendant's car collided with a trishaw ridden by the plaintiff's husband (aged 35) thereby causing his death. The defendant was accelerating, but he was not certain whether he had changed into top gear before the collision, but he mentioned that he was not travelling fast. Brake marks left by the offside and nearside wheels on the dry road were 60 and 53 feet long respectively. The deceased was thrown forward 14 ft and the trishaw was thrown forward 39 feet. The defendant also stated that he did not take into consideration the fact that the deceased might enter the major road sudddenly. The following questions were raised: (i) was the defendant negligent in colliding with the trishaw and causing the death of the deceased; (ii) was the deceased guilty of contributory negligence; and (iii) what was the quantum of damages payable by the defendant if he was liable in whole or in part.

Held: (1) from the circumstances of the case, the defendant was guilty of negligence, but nevertheless the deceased, by his own want of care, contributed to his own injury owing probably to his misjudgment of the defendant's speed; (2) taking all the circumstances of the case into consideration, the sum of RM13,000 should be awarded as general damages, but as the deceased was equally to blame, his damages are reduced to RM6,500; (3) (per curiam) the funeral expenses which were paid by friends and relatives who expected to be repaid and which the plaintiff felt she was under a moral obligation to repay should be recovered by the plaintiff.

Tan Ah Hoong v Mahalingam [1962] MLJ 250 High Court, Kuala Lumpur (Suffian J).

The plaintiff, widow and administratrix of the estate of her deceased husband, claimed damages in respect of his death from injuries received while a passenger in the defendant's vehicle, sometime on 20 May 1969. The defendant admitted liability and the only question to be determined was the amount of damages recoverable by the plaintiff. The deceased was an overseer artisan grade I, employed by the Public Works Department, Miri, Sarawak. He was about 29 years old at the time of the accident. He left behind a widow and two children, then 16 months and 6 months respectively, all of whom were dependent on the deceased. It was not in dispute that the deceased's basic salary at the time of his death was RM230 per month. In addition, he was entitled to RM17 children's allowance. His overtime allowance averaged RM100 per mensem. The plaintiff had been granted pension in the sum of RM110.27 per month under the Widows' and Ophans' Pensions Ordinance since the death of her husband. She also received death gratuity under the Pensions Ordinance in the sum of RM2,760. The question which arose for decision was whether account should be taken of the pension which was received by the widow.

Held: (1) the Widows' and Orphans' Pensions Ordinance (Sarawak Cap 90) has no counterpart equivalent to s 40 of the English Widows' Orphans' and Old Age Contributory Pensions Act 1956 (Act 67), which excludes widows' and orphans' pensions in assessment of damages. Therefore, in applying the common law, such pensions and death gratuity must be taken into account; (2) the law in West Malaysia is different from the law in Sarawak. Section 7 of the Civil Law Ordinance 1956, as amended, provides further that in assessing damages by way of compensation to the family of a person for loss occasioned by his death, there shall also not be taken into account any pension or gratuity paid as a result of the death; (3) in the circumstances of this case, an award of RM22,758.72 was a fair and proper sum, to be apportioned accordingly between the widow and her two children; (4) the award in respect of the children was to be deposited in an approved savings bank on trust for the minors.

Anna Yong Yu Hiong v Government of Sarawak [1972] 1 MLJ 103 High Court, Kuching (BTH Lee J).

This was an appeal against the decision of the High Court in an action for damages against the driver of two motor vehicles involved in a collision which resulted in the death of a passenger in one of them. The learned trial judge held that the driver of the car (third respondent) was primarily to blame but assessed the liability of the taxi driver (second appellant) at 25 per cent. He awarded damages under s 7 of the Civil Law Ordinance at RM26,000 and under s 8 at RM3,500 merged with that under s 7. He also held that no deduction was to be made in respect of a sum of RM20,000 given to the family of the deceased by the state government. The appellants appealed against the apportionment of liability.

Held: (1) he is not under a duty to be perfect in the sense of being able to anticipate other drivers acting in a negligent or irresponsible manner; (2) in this case there was no evidence to show that the taxi driver failed to exercixe ordinary care and skill and therefore he could not be held to be blame for the accident; (3) the duty of a driver is only to exercise reasonable care;(per Raja Azlan Shah J) in the court below: Ò'Gratuity' in the proviso (to section 7(3) of the Civil Law Ordinance 1956) must be construed as apt to include all direct payments of m oney by third parties to the dependants as a measure of assistance. Such benefit is not deductible.Ó

KR Taxi Service Ltd & Anor v Zaharah & Ors [1969] 1 MLJ 49 Federal Court, Kuala Lumpur (Ong Hock Thye, Suffian and McIntyre FJ).

A taxi licence was issued to X in 1976 and he died in 1977. Since X's death, the licence was used by his son, Y, until Y's death in 1982. The licence expired in 1983. The first and second plaintiffs, who were administrators of Y's estate, claimed damages from the first and second defendants for negligence which caused Y's death. Liability was agreed between the parties. The senior assistant registrar however excluded from the assessment of damages, Y's earnings as a taxi driver on the ground that the licence was personal to the holder. The senior assistant registrar also assessed Y's earnings based on his income tax assessment. The second plaintiff appealed to the High Court.

Held, dismissing the appeal: (1) s 126(1) of the Road Traffic Ordinance 1958 clearly provides that the licence should be personal to the holder and it was an offence under s 126(2) of the 1958 Ordinance to transfer or assign it; (2) since Y and the first and second plaintiffs were not entitled to use the licence, they were not entitled to the earnings derived from its use; (3) it was in the interest of justice to determine a person's total earnings from his income tax assessment. This was because the assessment was based on the amount of income as declared by him and all the particulars given were presumed to be correct; (4) the senior assistant registrar's assessment of Y's earnings based on his income tax assessment was a matter of fact in which the appellate court would not interfere. Moreover the senior assistant registrar had made the decision based on the assessment of the relevant evidence of the witnesses. The senior assistant registrar had therefore correctly assessed Y's loss of earnings.

Chua Kim Suan & Anor v Government of Malaysia & Anor Civil Suit No 816-85 High Court, Ipoh (Abdul Malek J).

[Annotation: The judgment was delivered in Bahasa Malaysia.]

In this case, the plaintiffs sought to recover damages for the death of their son, Mohammed Nazri, a boy of 12 years of age who was killed in a road accident on 28 November 1981. The plaintiffs claimed for loss of benefits under s 7 of the Civil Law Act 1956 ('the Act') and also under s 8 of the Act as administrator and co-administratrix of the estate of the deceased.

Held: (1) although the deceased helped his father in the running of the father's business, the so-called services rendered by the deceased to both plaintiffs were not reducible to money value. The plaintiffs also failed to prove that they had a reasonable expectation of pecuniary benefit if the deceased had lived. Therefore, the claims under s 7 of the Act failed; (2) the award for loss of expectation of life is RM4,000; (3) the award for loss of earnings during the lost years under s 8(2)(c) is RM14,954.65.

Hassan bin Mohamad & Anor v Teoh Kim Seng [1987] 1 MLJ 328 High Court, Alor Setar (Lim Choon Beng J).

In an action under s 4(ii) of the Executors (Powers) and Fatal Accidents Enactment (Cap 19) for damages for the death of the plaintiff's child by reason of the negligent driving of a motor lorry by a driver in the employ of the defendant, the court found for the plaintiff on the question of negligence. It was established that the child was aged 12 and that he and his brother used to sell cakes made by their mother and sisters during the mornings and that they both earned money as golf caddies in the afternoons and evenings.

Held: the assessment of damages in such cases is entirely a matter of speculation and that in the circumstances, the plaintiff was entitled to receive the potential earnings of the child for a period of five years on the principle that the compensation should be assessed according to the length of time during which such earnings would be coming into the household.

Yam v Loy Chim [1939] MLJ 242 High Court, Federated Malay States (Gordon-Smith J).

In this case, the deceased who was killed in a running down case was 12 years old at the time of the accident. The learned trial judge made the following award of damages Special damages as agreed RM1,500; Damages for loss of expectation of life RM4,000; Damages for loss of earning in the lost years under s 8(2)(c) RM14,954.65. The evidence showed that the deceased used occasionally to assist his father selling fish at an unlicensed stall in the market and was given RM32 a month, which the father admitted was for pocket expenses. The appellant appealed.

Held: (1) the award for loss of expectation of life should be increased to RM6,000 which would be a more reasonable figure; (2) in this case, there was in fact no material on which a proper assessment could be made for earnings during the lost years and therefore the appeal against the item of damages for such loss of earnings should be allowed.

Teoh Kim Seng v Hassan bin Mohamed & Anor [1987] 2 MLJ 209 Supreme Court, Kuala Lumpur (Abdul Hamid CJ (Malaya).

In this case, the deceased a schoolboy aged 17[1/2] years old was killed in a motor accident. His father brought an action against the respondents under the provisions of ss 7 & 8 of the Civil Law Act 1956 (Act 67). The learned judge made no award for loss of future earnings during the lost years (the number of years of a person's life which had been shortened as a result of the accident). The appellant appealed.

Held: on the facts of this case, the learned judge was correct in holding that there should be no award for loss of future income in respect of the 'lost years' on the ground that the appellant had failed to prove that the deceased, at the time of his death, had any real prospects of earning such an income. In this case, the deceased did not appear to have made a start or attempt to look for a job. Per curiam: 'The judge must make the best estimate based on the known facts and his prospects at the time of death' (p 49 para G).

Abdul Malek bin Hassan v Mohammad Hihwan bin Mastuki & Anor [1987] 1 MLJ 489 Supreme Court, Kuala Lumpur (Lee Hun Hoe CJ (Borneo).

In this case, the claim against the appellant and two others by the respondents was based on negligence arising from a road accident. As a result of the accident, the deceased who was travelling as a passenger in a land rover was killed. The learned trial judge awarded RM23,000 as pre-trial loss of dependency and RM57,204 as post-trial loss of dependency. He agreed that the loss of dependency was RM450 a month but cut down the purchase period for future loss from 20 years (as claimed) to 14[1/2] years. He also awarded four percent interest on the pre-trial loss of dependency. The appellant appealed against the quantum and also against the award of interest at four percent instead of the usual three percent.

Held: in the circumstances of this case, the generosity shown by the learned trial judge was in favour of the appellant and the appeal should be dismissed.

Kho Nee Hin v Selimah bte Abdul Ghani & Ors [1981] 2 MLJ 138 Federal Court, Kuala Lumpur (Lee Hun Hoe CJ (Borneo).

The plaintiffs claimed damages against the defendants arising out of the death of the first plaintiff's husband from fatal injuries sustained in a motor car accident. The deceased was 32 years of age at the time of his death and was employed as a watchman by the National Electricity Board at a salary of RM140 per mensem. He was given free living quarters and free electricity and water.

Held: (1) the defendants were liable in damages which would be assessed at RM320 as special damages and general damages at RM15,000. The plaintiffs also claimed for interest at 6% per annum from the date of the death of the deceased to the date of the payment of decretal amount; (2) this was not a proper case in which the court should exercise its discretion in favour of awarding interest as claimed.

Nasib Kaur & Anor v Cheah Kit & Anor [1968] 1 MLJ 58 High Court, Ipoh (MacIntyre J).

This was an appeal against the decision of the Singapore Court of Appeal [1953] MLJ 231, where the said court affirmed the award of the learned trial judge under s 7 of the Civil Law Ordinance, S$2,000 (including funeral expenses and costs of letters of administration) and under s 8 of the same Ordinance S$15,000. The Court of Appeal held that in cases of this kind it was convenient if the basis of calculating awards under s 8 were fully set out and the award to each defendant calculated separately. In the total sum of damages awarded a sum of S$350 was included for costs of letters of administration. The Judicial Committee of the Privy Council in dismissing the appeal and affirming the order for damages varied the decision of the Court of Appeal by disallowing the S$350 for costs of letters of administration.

Lim Joo Chiang v Lim Siew Choo & Anor [1955] MLJ xxviii Privy Council Appeal from Singapore (Lord Morton of Henryton, Lord Radcliffe, Lord Keith of Avonholm, Lord Sommervell and The Rt Hon LMD de Silva).

In this case, the first respondent had claimed damages for loss of consortium of his wife who was killed in a motor accident caused by the negligence of the appellant. The learned trial judge awarded the sum of RM3,000 under this head. The first respondent and the other respondents, the children, also claimed damages for loss of services suffered by them. The appellant appealed against the award for loss of consortium and also the amount of the award for loss of services.

Held: (1) the learned judge was wrong in making an award of damages for loss of consortium to the husband. Such an award would appear to be contrary to the authorities and the law; (2) it has been held that the loss need not be a monetary loss: a loss of services rendered by the wife and capable of being valued in pecuniary terms will suffice, such as housekeeping. The learned judge was therefore right in making an award of damages for loss of services; (3) the amount claimed in the statement of claim was RM500 per month and the learned judge erred in allowing a pecuniary loss, that is RM800 per month, very much in excess of the sum claimed; (4) the multiplier of three years in assessing post-trial loss of the husband adopted by the learned judge was reasonable; (5) on the other hand the multiplier adopted by the learned judge for the children was too high and a multiplier of eight should be adopted for the purpose of calculating the post-trial loss of the three children, whose ages varied from 12 to 7 at trial; (6) the amount of damages awarded to the husband and the children should therefore be modified accordingly.

Chong Pik Sing & Anor v Ng Mun Bee & Ors [1985] 1 MLJ 433 Federal Court, Kuala Lumpur (Seah, Mohamed Azmi and Syed Agil Barakbah SCJJ).

In this case, the first plaintiff is the widower of Gan Ching Thai (the deceased), who died when she was run down by a motor car driven by the first defendant on 10 March 1979. The second, third and fourth plaintiffs are the infant children of the first plaintiff with the deceased. The plaintiffs are claiming damages based on loss of consortium and loss of services. Liability has been agreed between the parties at 50:50 and the only issue before the court is on quantum for the claims for loss of consortium and loss of services.

Held: (1) for the claim of loss of consortium, RM4,000 for this head of damage is fair and reasonable on 100% liability; (2) (on 100% liability) the value of the first plaintiff's loss of services is RM500 per month and for the pre-trial period of 58[1/2] months, this loss amounted to 500 ´ 58 [1/2] = RM29,250. For the post-trial period, loss of services is awarded at the same rate per month but limited to a period of three years based on the possibility of the first plaintiff's remarrying again a figure of RM16,339; (3) loss of services suffered by the three children (on 100% liability): for the pre-trial period of 58[1/2] months loss is calculated at RM250 per month and the amount due is 58[1/2] ´ 250 = RM14,625. For the post trial-period of 11 years worked on the basis of loss at RM300 per month, the annuity table gives a figure of RM29,903.

Ng Mun Bee & Ors v Chong Pik Sin & Anor [1987] 1 MLJ 91 High Court, Kuala Lumpur (Siti Norma Yaakob J).

This was an appeal by the plaintiff against the decision of the assistant registrar striking out, on the application of the first defendant, the writ of summons which was filed on 19 December 1986, on the ground that the action as indorsed on the indorsement of claim showed that it had been time-barred. The plaintiff in the indorsement claimed as administrator of the estate of Rajendran, the deceased, and on behalf of one Amirthammal under s 8 of the Civil Law Act (Cap 30) against the second defendant as servant of the first defendant for being negligent in the fatal treatment of the deceased on or about 7 November 1983 at the Alexandra Hospital. The plaintiff submitted that his claim was an estate claim subject to the normal limitation period of six years under s 6(1)(a) of the Limitation Act (Cap 163, 1985 Ed) read with s 7(1) of the Civil Law Act (Cap 43, 1985 Ed) and not, unlike a dependency claim, subject to a limitation period of three years by virtue of s 11(5) of the Civil Law Act.

Held, dismissing the appeal: (1) the estate claim of the plaintiff in the present case was in effect a claim for damages for personal injuries which, but for s 7(1) of the Civil Law Act, would not have survived at common law. Section 7(1) merely preserved the cause of action posthumously and no more. Unlike s 11(5) of the Civil Law Act in relation to dependency claims, it did not extend or purport to extend, upon the death of the injured person, the limitation period of three years prescribed by s 6(4) of the Limitation Act; (2) s 6(4) of the Limitation Act applies to all actions for damages for negligence or breach of duty where the damages claimed include damages in respect of personal injuries; (3) the present claim was a claim for damages for negligence and was therefore time-barred at the commencement of these proceedings.

Lim Kim Chai & Anor v Foo See Fatt; Gan Chin Baw & Anor v Foo See Fatt [1970] 2 MLJ 207 High Court, Muar (Sharma J).

In this case, the deceased died in a wild boar hunting accident. His widow and another as representatives of his estate sued for damages on behalf of the deceased's dependants under s 7 and on behalf of his estate under s 8 of the Civil Law Act 1956 (Act 67). Liability to the extent of 70% was admitted and the only question for the learned trial judge was damages. He awarded RM2,800 for loss of expectation of life, RM959 for special damages and costs. He made no award for loss of dependency because on the agreed facts, the deceased before his death was an active partner in a firm and as such partner was drawing RM1450 per month and after his death, that very sum was paid to the dependants as the deceased's share of the profits. He held therefore that the dependants suffered no loss. The plaintiffs appealed.

Held: the plaintiffs were entitled to damages for loss of future earnings but in this case, as the estate and the dependants had lost nothing, the learned trial judge was correct in making no award for loss of dependency.

Yap Ami & Anor v Tan Hui Pang [1982] 2 MLJ 316 Federal Court, Kota Bahru (Suffian LP, Lee Hun Hoe CJ (Borneo).

The claims in this case were namely: (i) loss of dependency of the wife and the three children including special damages; (ii) loss to the estate of Dr Kandiah Paranjothy deceased; and (iii) damages for injuries to the wife and the two children concerned.

Held: (1) five years' purchase of RM2,100 according to the annuity tables amounting to RM109,104 and claim for loss of pension RM29,800; (2) the plaintiff should also be awarded RM7,270 special damages for several items lost by the plaintiff because of the defendant's negligence which caused the plaintiff to lose consciousness resulting in her belongings being stolen or removed from the scene of the accident; (3) claim for RM9,326.35 being the sum actually incurred in extracting the grant of letters of administration would also be allowed; (4) general damages for pain and suffering and loss of amenities in respect of the children (a) Devan RM750 for the three lacerations (b) Anand RM1,000 for the three lacerations and haematoma and (c) Parvathy RM750 for her laceration. Eight percent interest from the date of service of the summons in respect of (a), (b) and (c) was also awarded; (5) the court should not take into account the housing and entertainment allowances in computing the actual salary of the deceased. These were actually allowances to reimburse the deceased for expenses which he incurred or was expected to incur and they could by their very nature have been withdrawn at any time by the government. The court would award RM95,100 based upon the actual salary plus the specialist allowance which was a pensionable allowance and forms an integral part of a specialist's salary;costs to the plaintiff as taxed or agreed.

Parvathy & Ors v Liew Yoke Khoon [1984] 1 MLJ 183 High Court, Kuala Lumpur (KC Vohrah J).

The plaintiff, widow and administrator of the estate of Koh Teck San ('the deceased'), senior editor of Lianhe Zhaobao, a leading Chinese newspaper, was claiming loss of dependency for herself and for her son, Koh Jau Jen, loss of CPF contributions and funeral expenses. The deceased succumbed to fatal injuries as a result of a collision at about midnight on 25 June 1991. The collision happened at a junction box when the defendant's Mitsubishi lorry of 8m long collided by way of a side swipe on the off-side of the car driven by the deceased. The side impact caused him serious injuries and he succumbed and died in hospital two hours later.

Held, allowing the claim: (1) having considered the intrinsic probabilities of the case the court concluded that the defendant was entirely to blame for the accident, that he had driven his lorry into the junction at quite a speed in disregard of the red traffic light against him. The deceased in driving the car into the junction did not make any stop at the slip road junction; (2) the deceased's salary in the last six months of the year of assessment 1992 worked out to about S$5,000 per month rounded off. His take home pay after deduction of 22% for CPF was S$3,900. After tax, he would have had a disposable income of S$3,500 per month. The widow gave evidence that the deceased had been giving her something in the region of S$1,855 per month directly and indirectly towards the maintenance and upkeep of the house; (3) the deceased was 56 and but for his untimely death the court was satisfied that he would definitely work up to 60 and probably continue working till 60. There were good prospects of the deceased continuing with his post as senior editor; (4) in relation to the loss of dependency for the son who was studying in Canada as an undergraduate in Business Administration, the court was convinced that the deceased would have exerted himself in every possible way to see his son complete the Master of Business Administration programme; (5) medical expenses (agreed) S$116; (6) the following awards were made: loss of dependency in case of the widow S$130,000; loss of dependency in case of the son S$40,000 for his undergraduate expenses, S$30,000 for his Masters programme; loss of CPF contributions S$24,000; damages for bereavement (agreed) S$10,000;donations to the family at the time of the bereavement which admittedly exceeded the funeral expenses need not be set off against those funeral expenses. The charity of friends and family members of a bereaved family by way of donations were not charities to needy people but was a wholesome practice of the community by which in a material tangible way such friends and family express their condolences. These were paid without any legal liability to do so and received by the bereaved family without any legal right thereto. The two items were totally disconnected with each other.

Leong Twai Mooi v Leow Kah Whay Suit No 1143 of 1993 High Court, Singapore (Lai Kew Chai J).

The deceased's car collided with an on-coming bus driven by the first defendant on 28 March 1982. The deceased was killed in the accident. The plaintiff, the administrator of the deceased's estate, claimed damages from the first defendant and the second defendant who owned the bus. The deceased, an assistant management accountant, was 30 years old at the time of the accident with his monthly earnings amounting to M$2,120.

Held, allowing the claim: (1) on the facts, the collision was caused entirely by the negligence of the first defendant; (2) in assessing the quantum of loss of earnings, there had to be deducted from the deceased's earnings the probable living expenses of the deceased. The deceased's contribution to his dependants should not be taken into account. The plaintiff was also entitled to be compensated for the loss of contribution to the Employees' Provident Fund ('EPF') by the deceased's employer; (3) in this case, the deceased's monthly earnings comprised his monthly basic salary, monthly food allowance and his employer's EPF contribution. The probable living expenses that should be deducted from the deceased's monthly earnings were the cost of his food, the cost of his car petrol and its upkeep, and his entertainment and sundry expenses. The deceased's monthly earnings in this case were assessed to be RM1,000; (4) the general damages for the deceased's loss of future earnings were assessed to be RM77,600 based on the annuity tables with a multiplier of 8 and a multiplicand of RM1,000; (5) when dependants who claim under s 7 of the Civil Law Act 1956 ('the dependency claim') were the same beneficiaries of the deceased's estate who claimed under s 8 of the 1956 Act ('the estate claim'), the claimants could not be allowed to have their claims for damages twice over. Any recovery under the estate claim might diminish and might well extinguish any claim under the dependency claim; (6) in this case the amount of damages to be awarded in the estate claim was RM204,450, while the award in the dependency claim amounted to RM100,800. Accordingly, the dependency claim was extinguished by the bigger award allowed under the estate claim and the plaintiff was entitled to claim RM204,450 from the defendants.

Soh Hau Huat, Administrator of the Estate of Soh Mee Leong, Deceased v Mohd Nor bin Taya & Anor [1992] 4 CLJ 2185 High Court, Kuala Lumpur (Lim Beng Choon J).

Loss of expectation of life is a loss in respect of expectation of life whether of adults, infants or the aged and there is no reason why it should remain at a low, arbitrary and artificial figure. Damages in respect of loss of expectation of life for both adults and children should be awarded on the same basis and no difference should be made on the computation of such damages. In this case, one adult and five children had been killed in a road accident. The learned judge awarded RM3,500 for loss of expectation of life in respect of each of the six persons.

Foon Moon Yeow & Anor v Tan Sek Kee & Ors [1973] 2 MLJ 119 High Court, Ipoh (Sharma J).

[Annotation: The second and third defendants appealed against Sharma J's decision on liability and quantum of damages to the Federal Court (Federal Court Civil Appeal No 30 of 1973, Azmi LP, Gill and Ong Hock Sim FJJ, Ipoh, 20 August 1973). In an oral judgment, the Federal Court dismissed the appeal.]

Hoogstraten v Low Lum Seng [1940] MLJ 138 High Court, Selangor (Cussen J).

This appeal raises the question of whether or not the damages of S$4,000 awarded for loss of expectation of life and of S$2,000 for pain and suffering were excessive. The deceased was killed in an accident and suffered pain for nearly three days before his death.

Held: (1) the directions laid down in Benham v Gambling [1941] AC 157 have resulted in the awarding of modest but arbitrary sums for loss of expectation of life. There is no logical reason why one sum should be awarded more than another, and it is impossible to say logically that any figure is wrong. But the awarding of large sums was found to have practical inconveniences. In this case, having in mind the fall of the value of money since that case, the sum awarded is not manifestly excessive; (2) it is wrong to treat damages for pain and suffering as analogous to that for loss of expectation of life. The sum awarded for the former should be the same as would have been awarded if the deceased had recovered. Here the deceased suffered a substantial amount of pain and suffering. Per Brown J (dissenting): 'The onus is on the claimant to prove pain and suffering.'

Seow Seng Choon v Yam Kim Chye & Anor [1952] MLJ 244 Court of Appeal, Singapore (Murray-Aynsley CJ (Singapore).

Held, by way of dicta: the conventional figure for damages for loss of expectation of life in the case of a young adult should be RM3,000 and, if the appeal had not been allowed as regards negligence, the amount of damages awarded for loss of expectation of life would have been reduced.

Chang Kok Sing & Anor v Koo Lan [1966] 1 MLJ 170 Federal Court, Ipoh (Thomson LP, Ong Hock Thye Ag CJ (Malaya).

The plaintiff (respondent in this appeal) is the father and the administrator of the estate of the deceased who was killed in an accident which was due to the defendant's negligence. The plaintiff claimed special damages under s 8 of the Civil Law Ordinance for loss of expectation of life and damages under s 7 for loss of services and special damages. Azmi J awarded RM783 as special damages, RM5,000 for loss of expectation of life and dismissed the claim for damages for loss of services. The defendant (appellant in this appeal) appealed on the ground that the damages awarded under s 8 were excessive and the plaintiff cross-appealed against the trial judge's decision with respect to damages for loss of services.

Held: (1) as the plaintiff had not suffered any pecuniary loss, he was not entitled to damages for loss of services under s 7 of the said Ordinance; (2) in awarding damages under s 8, the balance to strike in such cases cannot be left to be decided by the exercise of judicial discretion in the ordinary way. The only answer lies in some sort of judicial legislation and bearing in mind the insuperable difficulties, the conventional figure for this country at this present time in the case of a young adult should be RM3,000 and that view should be accepted by judges.

Lee Sai Cheong v Wan Lim Cheong [1962] MLJ 259 Court of Appeal, Ipoh (Thomson CJ, Hill and Good JJA).

In this case, the father of the deceased boy claimed damages and funeral expenses from the defendants on the allegation that the boy's death was brought about by the negligence of one of the defendants' servants. It appeared that the deceased boy was allowed by the bus driver to ride in the driver's compartment and that after a collision between the bus and a private motor car, the boy sustained injuries of which he died. On the evidence, it appeared that the collision was caused by the negligence of the driver of the private motor car.

Held: in this case, the driver of the bus was negligent in carrying the deceased in a part of the vehicle where he might be exposed to undue danger and that therefore the defendants were liable for damages. Per Abbott J: 'I approach the difficult task of the assessment of damages in the light of the decision given in Benham v Gambling [1941] AC 157. I accept the evidence that the deceased was a normal, healthy and intelligent boy and I am satisfied that his circumstances of life were calculated to lead on balance to a positive measure of happiness of which, by his death, he has been deprived. I assess the damages at RM2,500.'

Chang Kan Nan v Ludhiana Transport Syndicate [1950] MLJ 299 High Court, Seremban (Abbott J).

In this case, the respondent brought a fatal accident claim arising from the death of the deceased in a road accident. The learned trial judge found the appellant solely to blame for the accident. He allowed 34 years purchase and assessed the deceased's income at RM350 per month.

Held: (1) the learned judge in allowing 34 years purchase was manifestly excessive and had not considered the vicissitude of life and the payment of a lump sum. On the facts and circumstances of the case, 15 years' purchase would be a reasonable multiplier to adopt; (2) although the learned trial judge was justified in finding that the deceased was earning RM350 per month in his assessment of the damages, he had not deducted a sum which the deceased would have expended on himself. A deduction of RM90 per month would be a fair figure and this would leave a sum of RM260 per month as multiplier. Based on the annuity table, the amount to be awarded would be RM32,384.52, rounded to RM32,500; (3) a sum of RM4,000 for loss of expectation of life is fair and reasonable, but as this is a fatal accident claim by the dependants of the deceased, this sum would be treated as having been merged in the amount awarded under the fatal accident claim.

Wong Kum Keong v Yeap Chooi [1987] 1 MLJ 290 Supreme Court, Kuala Lumpur (Lee Hun Hoe CJ (Borneo).

The second defendant's sister, Chan Sui Keng, was killed in a road accident in which the motorcar driven by the second defendant collided with the taxi driven by the first defendant. The plaintiff Chan Heng Wah, as administrator of the estate of Chan Sui Keng deceased, brought this action against the defendants. Liability was admitted in the proportion of 90% on the part of the first defendant and 10% on the part of the second defendant. At the trial, the following damages were agreed upon: (a) a sum of S$6,500 for loss of expectation of life; (b) a sum of S$3,000 for funeral expenses; and (c) a sum of S$600 for loss of use of the car. The plaintiff claimed damages for loss of earnings for the lost years. On this claim, the learned judge awarded S$125,000. At the time of her death, the deceased was 20 years of age and a medical student. The learned trial judge held that the prospective earnings of the deceased should be at the level of a medical registrar and computed her net earnings at that level. The learned trial judge took S$56,494.34 as the annual multiplicand. He also took 20% of S$56,494.34 as the available surplus. Next his Lordship adopted a multiplier of 11 and arrived at S$125,000. Interest on both general and special damages was disallowed. The present appeal was against that part of the judgment awarding damages for loss of earnings of the deceased during the lost years and disallowing interest on the damages awarded.

Held: (1) the prospective earnings of the deceased which were assessed were not manifestly or excessively low; (2) from the authorities, it was clear that savings, if any, which a deceased would have been likely to have available would form part of the available surplus; (3) in the Singapore context, it was inescapable that the available surplus must include the amount in the CPF account of an employee which is quite considerable; (4) having regard to the scheme of enforced savings provided under the Central Provident Fund Act and other factors, the available surplus in this case should be 40% of the net prospective earnings; (5) the multiplier should be 15; (6) therefore S$338,966.14 would be a fair amount of loss of earnings of the deceased for the lost years; (7) interest should be awarded on the following amounts of damages: (i) S$6,500, (ii) S$3,000 and (iii) S$600 at 6% per annum from the date of issue of writ to date of judgment of the High Court.

Chan Heng Wah & Anor v Peh Thiam Choh & Anor [1988] 1 MLJ 74 Federal Court, Singapore (Sinnathuray, Rajah and Thean JJ).

The courts in the Federated Malay States in seeking to estimate the sum to be given in damages for the loss of expectation of life under s 4 of the Civil Law Enactment 1937 should not adopt the scale of award made in similar cases in England but should adopt the attitude of mind exemplified by the award of the House of Lords in Benham v Gambling [1941] AC 157, and give expression to it in fixing the amount to represent the loss of prospective happiness to a person in this country.

Lok Yin v Pat Thoo [1948] MLJ 26 High Court, Federated Malay States (Cussen J).

This was a claim for damages for loss of expectation of life and for funeral expenses brought by the administrator of the estate of one Nee Nya Abdul Karim (deceased) under the provisions of s 7 of the Civil Law Ordinance as amended by the Civil Law (Amendment) Ordinance 1940. It appeared that the deceased was a Tamil Mohammedan aged 26 and that he owned a small shop at 71-6 Woodlands Road, a rural district of Singapore, where he carried on business in piece-goods, provisions and general merchandise. On 13 October 1940 when cycling on Woodlands Road he was knocked down by the defendant's car and was severely injured. When the defendant found him in the roadside ditch immediately afterwards he was either dead or unconscious, and if the latter, he died shortly after without regaining consciousness. The defendant admitted negligence and liability in damages, and the only question for decision was as to the quantum of the damages.

Held: applying the principles laid down in the English case Benham v Gambling [1941] AC 517, RM1,500 was a proper sum to award in this case.

Mohamed Abdul Cader v Frederick Smith [1947] MLJ 36 High Court, Straits Settlements (Worley J).

The fixation of damages is so largely a matter of opinion or of impression that differences of calculation or assessment are to be expected. It is, to some extent, an exercise of judicial discretion. The Court of Appeal will not therefore give preference to their own figure simply because they disagree with the figure arrived at by the trial judge; they will only interfere if they are satisfied that the judge has acted on a wrong principle of law or has misapprehended the facts or has, for those or other reasons, made a wholly erroneous estimate of the damage suffered. Although the trial judge may have failed to make allowance for some factors, so long as the figure arrived at will fairly compensate the family of the deceased, it ought to stand.

Amar Singh v Chin Kiew [1960] MLJ 77 Court of Appeal, Kuala Lumpur (Thomson CJ, Hill and Good JJA).

In this case, the plaintiff claimed damages for loss of expectation of life and loss to the estate arising from the death of husband. At the time of the accident, the deceased was 36 years of age and the plaintiff was 38. The judge awarded RM9,037 (including general damages RM3,000 for loss of expectation of life, RM4,500 for pain and suffering) and RM760 special damages.

Halijah v Velaitham [1966] 1 MLJ 192 High Court, Ipoh (MacIntyre J).

In this case, the court

Held: a sum of RM1,000 for damages under the head of loss of expectation of life was sufficient; the awarding of large sums under this head may have practical inconvenience, especially when the party liable to pay has little means. Appeal allowed to the extent that RM4,800 damages reduced to RM2,000.

Haji Kaili v Kawai bin Ali [1957] SCR 102 Supreme Court, Sarawak, North Borneo and Brunei

In considering a claim for damages under s 12 of the Civil Law Ordinance (Cap 24, 1955 Ed), the court has, in the best way it can, to find a sum of money which it thinks will fairly compensate the family of the deceased.

Tan Hong Kwee v Koh Swee Kok [1958] MLJ 191 High Court, Singapore (Chua J).

This was an appeal relating to the quantum of damages awarded to the respondent for the death of her husband in a road accident. When the case was originally tried, the learned judge found that the death was due to the negligent driving of the defendant's vehicle and ordered judgment to be entered for the respondent for damages to be assessed by the assistant registrar. The assistant registrar held an inquiry and assessed the general damages at RM36,000. The respondent appealed to the High Court and the learned judge awarded damages for loss of support at RM84,000. He arrived at this figure by multiplying the annual value of support which the dependants were receiving from the deceased, which he assessed at RM6,000 a year, by 14 as he estimated the future span of working life of the deceased to be 14 years. On appeal against that award,

Held: (1) the amount of damages in this case was pre-eminently a matter of assessment and not a matter of mere calculation and the trial judge was therefore wrong in ordering the damages to be assessed by the assistant registrar, but in this case, the irregular assumption of jurisdiction had been waived; (2) the award of RM84,000 for loss of support cannot stand as there was an error in calculating the damages and also an error in arriving at the figure of the estimated value of the loss of support.

Nam Thiam Siew v Chuang Wai Lan [1959] MLJ 126 Court of Appeal, Kuala Lumpur (Thomson CJ, Smith and Neal JJ).

This was an appeal against an award for damages which arose from the negligence of the appellant in driving a motor vehicle whereby the husband of the first respondent met his death. Prior to his death, the deceased was a university student and he was in fact living on payments made to him by his father, out of which he made certain payments to his wife for the support of herself and the children. Since losing the husband, the first respondent had been receiving payments from her father-in-law. It was urged for the appellant that these should be taken into account in assessing the damages.

Held: (1) the source of the husband's income was irrelevant to the proceedings; (2) when the deceased married the first respondent, he incurred a legal obligation to maintain her and any children of the marriage and she acquired a legal right to be maintained by him and it is immaterial where he obtained the money to discharge his legal duty; (3) there is no justification for the court to take into account in assessing the damages the fact that since her husband's death the first respondent had been receiving payments from her father-in-law.

Low Kim Yan v Tay Guat Hian & Ors [1960] MLJ 261 Court of Appeal, Johore Bahru (Thomson CJ, Hill and Good JJA).

This was an appeal against the decision of Shankar J reported at [1984] 1 MLJ 377. The deceased was killed when the motor cycle he was riding was knocked into by a motor car driven by the respondent. The mother of the deceased, the appellant, brought an action as administratrix of the deceased's estate and in her own capacity as dependant for damages under ss 7 and 8 of the Civil Law Act (Act 67). In default of defence, an order was made precluding the defendant from defending the action. The learned President of the Sessions Court awarded RM4,000 for loss of life of which RM2,000 went to the deceased's father and the remainder merged with the appellant's dependency claim. The appellant was awarded RM3,800 for dependency claim and RM7,920 for future dependency, the learned President taking the dependency loss to be RM100 per month and the number of years purchase to be 17, brought down to 11 years and 3 months for contingencies. The learned President also awarded RM2,000 for funeral expenses, RM400 for repairs to the motorcycle and RM380 for administrative and other expenses. On appeal, the learned judge reduced the dependency loss to RM75 per month and the number of years purchase to 7. The learned judge disallowed the claim for special damages, for funeral expenses and repair to the motor cycle as he held they were not proved. The appellant appealed.

Held: (1) the award of the learned President for the number of years purchase was far too excessive, reflecting a wholly erroneous estimate. The prospect of marriage should have been considered and a smaller multiplier applied. The learned judge was correct in reducing the number of years purchase to 7; (2) the finding that a trial judge has erred in the direction of being too generous would not itself constitute a matter to be appealed from and the appellate court is always slow to reverse the trial judge's decision on assessment of damages unless there are strong grounds for interference. The amount awarded by the learned President for loss of dependency, that is RM100 per mensem, should be restored; (3) there was sworn evidence in this case that the motor cycle had been sent for repairs and certain payments had been made towards the repairs. These claims had been pleaded and particularized in the statement of claim and the learned appellate judge was therefore incorrect in disallowing the award of RM400 made by the learned President of the Sessions Court for this item; (4) it was not wrong for the learned President of the Sessions Court in arriving at a reasonable and fair amount of compensation to be awarded to take judicial notice of Chinese funeral expenses and the fact that such expenses are normally incurred and only the amount would vary according to the status of the deceased or such other matters which may be considered by the court. The award of the learned President of RM2,000 for funeral expenses should be restored.

Pang Ah Chee v Chong Kwee Sang [1985] 1 MLJ 153 Federal Court, Johore Bahru (Salleh Abas LP, Wan Suleiman and Hashim Yeop A Sani FJJ).

Chu Siew Khiun v Wong Cheuk & Anor [1958] SCR 80 Supreme Court, Sarawak, North Borneo and Brunei.

Family Law

The deceased was killed in a traffic accident on 13 December 1992. The defendant was found in an earlier trial to be wholly to blame. This hearing deals with the damages payable to the dependants of the deceased. The deceased's husband (the husband) claims on behalf of the deceased's father (the father), her mother (the mother) and her two sons (the elder son) and (the younger son) as well as for himself.

Held, awarding damages to the claimant: (1) where details of the expenditure of the deceased are available as they are here, contributions of the deceased to various dependants, both in known circumstances and looking ahead, should be assessed and used as a basis for the application of a suitable multiplier; (2) in working out an appropriate multiplier for the deceased, taking into account the fact that she was 26 years of age at the time of her death and that the average age of retirement for a sedentary job in Brunei is about 60, a multiplier of 16 would be appropriate; (3) savings should be taken into account in any assessment of damages as they are relevant both to the annual loss of benefit and to the future loss of capital. From the deceased's savings at various banks should be deducted any deterioration in accounts incurred during the life of the deceased, debts due from the deceased to various banks and the share of each joint account holder. The net amount should be multiplied with the multiplier applicable to the deceased; (4) at the time of the accident, the father was 63 and the mother 57. In calculating the amount which should go to each, the court assumed that each would live till the age of 75. The correct multiplier would therefore be 9 for the father and 12 for the mother; (5) the elder son was born on 21 February 1987 and the younger son on 27 May 1992. The court considered that they would have been supported by their parents until they reached the age of 18. The multiplier applicable to the elder son should therefore be 12 and the younger 17; (6) the deceased contributed an average of $650 of her own money to household expenses and to her parents each month. From this sum should be deducted about [1/6] to allow for her own expenses in the household, leaving a dependency of $550 a month; (7) from the figure of $550 a month which the deceased contributed to her family, the court assessed the value of monthly contribution to each child at about $110 a month. As their mother has now been taken from them and their father is working, it would be fair to factor in the cost of an amah to look after them. As the children grow older, they would become more expensive. The loss of dependency of each son should therefore be assessed at $400 a month. This, applying multipliers of 9 and 12 would amount to 9 ´ 12 ´ 400 = $43,200 for the elder son and 12 ´ 12 ´ 400 = $57,600 for the younger son; (8) the parents have lost the benefit of the deceased's contributions of $110 each. In view of their ages and assuming that they would live to the age of 75, the father's loss is assessed at 9 ´ 12 ´ 110 = $11,880 and the mother's at 12 ´ 12 ´ 110 = $15,840; (9) 6% on pre-trial general damages from the date of the accident to the date of judgment. No interest payments were ordered on post-trial general damages; (10) (obiter) by s 6(3) of the Emergency (Fatal Accidents and Personal Injuries) Order 1991 (the Order), if damages are payable to a widow in respect of the death of her husband, her remarriage, or prospects of it, should not be taken into account. The subsection is silent as to the remarriage or prospects of remarriage, of a husband of a deceased woman. The court was of the opinion that there was no reason why the same principle should not apply in the case of a deceased wife; (11) the court ordered interest of 3% on damages for bereavement from the date of accident to the date of judgment (13 May 1996), 3% on special damages (funeral expenses) from the date of accident to the date of judgment;by s 7 of the Order, any benefits which may accrue as a result of the death, such as insurance payments, are to be disregarded.

Wong Fook Cheong v Hj Abd Khani bin Hj Adb Kadir Civil Suit No 72 of 1994 High Court, Brunei (Roberts CJ).

In assessing damages to the family of a person for loss occasioned by his death under s 12 of the Civil Law Ordinance (Cap 24, 1955 Ed) the starting point is the amount of wages which the deceased was earning, the ascertainment of which to some extent may depend on the regularity of his employment. Then there is an estimate of how much was required or expended for his own personal and living expenses. The balance will give a datum or basic figure which will generally be turned into a lump sum by taking a certain number of years' purchase. That sum, however, has to be taxed down by having due regard to uncertainties, for instance, that the widow might have again married and thus ceased to be dependent, and other like matters of speculation and doubt.

Panickar v Chwee May Kwong & Anor [1958] MLJ 136 Court of Appeal, Singapore (Whyatt CJ, Thomson CJ (FM).

In this case, the trial judge had dismissed the claim of the plaintiff for damages in respect of personal injuries sustained by him as a result of an accident between a motor cycle driven by him and a motor scooter driven by one Lai Meng Hua, who died as a result of the accident. The plaintiff testified that the scooter was attempting to overtake a lorry and had gone to the wrong side of the road. The scooter suddenly swerved towards his left and he had therefore in an attempt to save himself swerved to the right to avoid the scooter. The impact took place on his side of the road.

Held, allowing the appeal: (1) in this case, there was no inherent improbability in the evidence of the plaintiff and he was entitled to succeed; (2) for the loss of his right arm, the global sum of RM27,500 was the correct sum to award in respect of pain and suffering, loss of amenities and loss of future earnings; (3) circumstances of the case being such that the plaintiff could have brought the action to trial earlier and that special damages in respect of loss of earnings were normally allowed up to the date of trial, RM10,000 was awarded for loss of earnings.

Yeoh Cheng Han v Official Administrator, Malaya [1972] 2 MLJ 7 Federal Court, Penang (Suffian, Gill and Ali FJJ).

The deceased woman was killed, as was alleged, through the negligence of the defendant's driver while driving a lorry on the morning of 6 May 1939. The plaintiff, as administrator, claims to recover damages under the Civil Law Enactment 1937 for: (i) damages for a cause of action which had vested in the woman while alive, and survived for the benefit of her estate, namely that she was deprived of her expectation of life; (ii) funeral expenses in burying the deceased. The plainfiff also sues to recover damages for himself and his two infant sons as dependants under the Executors (Powers) and Fatal Accidents Enactment (Cap 19).

Held: (1) the death of the deceased was caused by the negligence of the defendant's driver; (2) damages could be recovered by the plaintiff, as administrator, for the cause of action arising out of the loss of expectation of life sustained by the deceased; (3) in assessing the damages thus awarded under the Civil Law Enactment No 3 of 1937, account must be taken of any damages already awarded under the Executors (Powers) and Fatal Accidents Enactment (Cap 19).

Yee Kong v Teh Seng [1941] MLJ 58 High Court, Ipoh (Howes J).

This was an appeal against the decision [1965] 2 MLJ 198) of the learned trial judge who dismissed a claim for damages arising out of injuries sustained in a road accident. The trial judge found that the immediate physical cause of the accident was a mechanical failure in the motor car which resulted in a total failure of the steering and braking systems and rendered it completely out of control. He held however that the duty imposed by r 94 of the Motor Vehicles (Construction and Use) Rules 1959 was a public duty and not a duty enforceable by an individual. On appeal,

Held: (1) none of the rules contained in the Motor Vehicles (Construction and Use) Rules 1959 is one for the breach of which a person injured by the breach is entitled to damages; (2) it had not been proved that there had been negligence in the maintenance and inspection of the motor car and therefore the appeal must be dismissed.

Tan Chye Choo & Ors v Chong Kew Moi [1966] 2 MLJ 4 Federal Court, Johore Bahru (Thomson LP, Ong Hock Thye FJ and Ismail Khan J).

In this case, one Subramaniam was riding a motorcycle on 5 August 1977 when it collided with a car driven by the appellant, as a result of which he suffered injuries. Subramaniam filed a claim for damages against the appellant but subsequently he died on 23 March 1980. The action was continued by his widow and another person substituted as plaintiffs and the claim brought under ss 7 and 8 of the Civil Law Act 1956 (Act 67). At the trial the learned trial judge gave judgment in the sum of RM1,850 as special damages, in the sum of RM20,000 as damages for pain and suffering and in another sum of RM32,000 as damages for the family of the deceased pursuant to s 7 of the Civil Law Act 1956. The appellant appealed, the main grounds of appeal being: (a) the learned judge erred in holding that the deceased died as the result of the injuries which he suffered as the result of the collision; (b) the learned judge should have treated the two items of damages as being merged. In other words in giving the damages under s 7, the learned judge should have taken into account the damages which were assessed in respect of pain and suffering. Expert evidence was called at the trial and the learned trial judge accepted the evidence of an expert that the deceased died of gastrointestinal bleeding and that the accident was the cause of his death.

Held: (1) there was evidence to support the conclusion of the learned trial judge in accepting the findings of the expert and she had not made any wrong inferences; (2) the damages of RM20,000 for pain and suffering assessed in this case under s 8 of the Civil Law Act 1956 should be taken into account in the assessment of damages under s 7 of the Act. This meant that the plaintiffs should be awarded RM32,000 only under ss 7 and 8 apart from the special damages of RM1,850.

Golam Hassan bin Muhamad v Susila & Anor [1987] 2 MLJ 211 Supreme Court, Kuala Lumpur (Wan Suleiman, Hashim Yeop A Sani and Wan Hamzah SCJJ).

The first appellant in this case was the driver of a lorry fully laden with padi. While driving, the lights of the lorry suddenly went off and its engine stalled. The lorry was parked in the middle of the road. The first respondent drove a car with two passengers and crashed into the rear of the stationary lorry resulting in the death of the front-seat-passenger and injuries to the first respondent and the other passenger. The learned trial judge found that the first appellant and the first respondent were equally liable for the negligence. The appeal was against liability and the quantum of damages awarded to the dependants of the deceased passenger.

Held: (1) the first respondent motor car driver should be more to blame for negligence than the first appellant and liability should be apportioned as 70% on the part of the first respondent and 30% on the part of the first appellant; (2) in this case, the sum of RM800 per month awarded by the learned trial judge in calculating the loss of the estate of the deceased was fair and reasonable. However the learned trial judge was in error in giving the multiplier of 25 years purchase, based on the probable retiring age of 65 years. The retiring age should be fixed at 55 and as the deceased was 24 at the time of his death and deducting 13 years for contingencies, that would leave 18 years' purchase; (3) the dependants of the deceased are entitled to the whole of the amount of damages, although the liability has been apportioned between the first appellant and the first respondent. This is in accordance with the fundamental principle in the law of damages where the injury committed on the plaintiff by more than one tortfeasor is one and indivisible.

Ahmad Nordin bin Haji Maslan & Anor v Eng Ngak Hua & Ors [1985] 2 MLJ 431 Federal Court, Kuala Lumpur (Lee Hun Hoe CJ (Borneo).

These consolidated suits concerned claims for damages for injuries sustained by the respective parties in a road accident between a lorry and a scooter. The scooter rider died and his pillion rider the plaintiff in Suit No 26 was injured. In Suit No 26, the plaintiff Kim Choi sued the defendant, Ibrahim, the lorry driver, and in Suit No 37, the plaintiff Liang Tet, the father and administrator of the estate of the deceased scooter rider, sued both Ibrahim and his employer. He was also cited as third party in the first suit. The questions for decision in these suits were, firstly, who was to blame for the accident; secondly, if Ibrahim was to blame, was he wholly or partly to blame; and thirdly, the quantum of damages payable.

Held: (1) the defendant lorry driver was two-thirds to blame, and the deceased one-third to blame for the accident; (2) the plaintiff in Suit No 26 was to be awarded general damages of RM12,500 (RM2,500 for the fracture of the clavicle and RM10,000 for the fracture of the femur resulting in pain and suffering, shortening of the leg and loss of amenities) and agreed special damages of RM300. The defendant in the same suit was to pay the plaintiff the said sums in full, with interest at the rate of six percent on general damages from the date of issue of the writ until judgment, and three percent interest on special damages from the date of the accident until judgment, and costs. The defendant was entitled to a contribution by the third party to the extent of one-third; (3) the plaintiff in Suit No 37 was to be awarded general damages of RM3,500 and agreed special damages of RM1,000. However, as the deceased was one-third to blame for the accident, the defendants were to pay the plaintiff two-thirds of each of the above figures with interest on the first sum at six percent from the date of issue of writ until judgment, and on the second sum at three percent from the date of the accident until the date of judgment.

Kim Choi v Ibrahim; Liang Tet (Third Party); Liang Tet v Ibrahim & Anor [1972] 1 MLJ 253 High Court, Kuala Lumpur (Suffian FJ).

The plaintiffs brought an action on behalf of the estate and dependants of the deceased who sustained fatal injuries in an accident involving a bicycle ridden by the deceased and a motor car driven by the defendant on 29 June 1972 in Gopeng Road, Ipoh. On that day, the deceased was riding his bicycle from the direction of Ipoh towards Gopeng when a collision took place near the first milestone at Gopeng Road between his bicycle and a motor vehicle owned and driven by the defendant and proceeding in the same direction. The deceased left a widow and four infant children including a son born posthumously on whose behalf the plaintiff claimed for special and general damages.

Held: (1) on the balance of probabilities, the defendant was negligent and wholly liable for the collision in which the deceased died; (2) the posthumous child was entitled to claim relief as a dependant and in the circumstances an allowance of RM20 a month for his support was fair and proper; (3) general damages in the sum of RM21,600 plus interest at six percent per annum should be awarded to the deceased's widow and children.

Mariyayee & Anor v Nadarajan [1975] 2 MLJ 267 High Court, Ipoh (Abdoolcader J).

The deceased was killed in an industrial accident caused by the negligence of the appellants. The respondents, who were the administratrix and co-administrator of the estate of the deceased, appealed against the award of interest by the High Court in an action for damages for loss suffered by the dependants and estate of the deceased. The interest awarded by the High Court was 6% on S$123,750, being 75% of the agreed damages from the date of service of the writ.

Held, allowing the appeal: (1) for the purpose of awarding interest, the court is only concerned with the pre-trial loss. In determining this amount, the court would have to ascertain the dependency at the date of death and at the date of trial to arrive at a median figure. However, as the parties are not agreed as to the dependency at the date of trial and there is no material on which the court can assess the amount of such dependency, it is impossible for the court to determine on a rational basis the amounts of pre-trial loss and future loss; (2) the guidelines laid down by the House of Lords in Cookson v Knowles should now govern the assessment of damages in fatal accident claims. Following these guidelines, interest at half the current rate would only be awarded on the pre-trial loss and no interest at all would be awarded on the future loss. Hence, interest as awarded by the High Court was much too high and cannot stand; (3) a fair and appropriate rate of interest in this case should be 2 per cent per annum on S$123,750 from the date of service of the writ to the date of judgment which amounts to S$9,927.

Hitachi Zosen Robin Dockyard (Pte) Ltd v Lee Pui Keng & Anor [1988] 2 MLJ 473 Court of Appeal, Singapore (Wee Chong Jin CJ, Thean and Chua JJ).

The deceased, a corporal in the Singapore Armed Forces, was a pillion rider on a motor cycle ridden by the defendant along Old Jurong Road in the direction of Hong Kah Road when the motor cycle went off the road and collided into a tree. The deceased was killed. Arising from the accident, the plaintiff, who was the father of the deceased, brought an action as administrator of the estate of the deceased for the benefit of the estate under s 7 of the Civil Law Act (Cap 43). On the day of hearing, the parties agreed on the figure of S$7,000 as general damages for loss of expectation of life. Agreement had also been reached on special damages for funeral expenses of S$2,500 and for costs of letters of administration of S$2,200.

Held, giving judgment for the plaintiff: (1) in the court's opinion, it would be justified to include the known bonuses in calculating pre-trial loss of earnings, notwithstanding that no evidence was given on this during the hearing, just as income tax liability was deducted in the calculation, even if no evidence was given of this. There should be no tax relief for the father, however, and in view of the considerably lower CPF rate applied in the SAF, the average surplus in this case should be 35% instead of 40%. All this would result in a rounded figure for pre-trial loss of S$27,000; (2) in the court's opinion, it would be fair to allow for two months' bonus, but there should be no tax relief for parents, and the available surplus should be 35% for the reasons given. In the case of death claims, the relevant date for the assessment of the multiplier is the date of death. In the present case, the net multiplier should be ten, which would leave a final figure for loss of future earnings of S$63,500; (3) interest would be from the date of the writ to the date of judgment at the rate of 3% for pre-trial loss of earnings, and at 6% for loss of expectation of life, funeral expenses and the costs of letters of administration.

Muthan Sinnathambi v Puran Singh [1992] 2 SLR 103 High Court, Singapore (Yong Pung How CJ).

The deceased, a linesman and meter reader, was killed in a motor car accident on 24 November 1961. He was 31 years old and was survived by a widow of 28 years and eight young children. Prior to his death, the deceased received a basic salary of RM103 a month pluse RM11 allowance and a bonus in the last working year of RM144. In awarding RM9,240 general damages, the court estimated that the deceased retained RM24 for himself and paid his wife RM90 a month. From the figure RM90 the court deducted RM20, a sum assessed to have been expended on the deceased, leaving RM70 for the wife and children. The court estimated the deceased's probable expectation of life to be 24 years and used a multiplier of 11, taking into account some danger in the occupation, the probability of the widow's remarriage which was not great, and other like matters of speculation and doubt.

Maimunah & Anor v Abu Bakar & Anor [1964] MLJ 223 High Court, Penang (Hepworth J).

The appellants in this case were the administrators of the estate of Abel John (deceased). The deceased was shot and killed by the police at a road block after failing to stop when ordered to do so. The appellants claimed damages for the benefit of the dependants under s 7 of the Civil Law Act 1956 (Act 67). The deceased was a lance corporal in the army and he and his family lived in free army quarters. It was argued on the appeal that: (a) the learned trial judge erred in law in excluding from the computation of damages the fact that the deceased could have been promoted to sergeant with commensurate higher pay and pension; (b) the learned trial judge ought to take into account the loss in the amount of pension the deceased would have received had he retired at the age of 50 after having been promoted to sergeant; (c) the learned trial judge erred in law in holding that the plaintiffs were not entitled to claim as a head of damages an amount equal to the value of the housing the dependants had lost as a result of the death of the deceased; (d) the learned trial judge erred in law in holding that the plaintiffs were not entitled to exemplary damages.

Held: (1) to hold that the deceased could have been promoted from a lance corporal to the rank of sergeant in the future would be too remote and speculative in the circumstances of this case. There might be delays in the promotion process and the possibility that the deceased might never be promoted to sergeant could not be ruled out; (2) the loss in the amount of pension the deceased would have received was uncertain being dependent on the prospect of promotion and other contingencies in life. Having regard to these factors, the trial court would be moving into a world of unreal speculation if it were asked to perform the difficult task of assessing the loss; (3) the onus of proving that the deceased was legally entitled to free army quarters or an allowance in lieu thereof rested on the plaintiffs and on the evidence the plaintiffs had failed to discharge it; (4) the claim for exemplary damages was entirely without merit and appears to be contrary to law. There is no reason why the provision in s 8(2)(a) of the Civil Law Act 1956 that the damages recoverable should not include exemplary damages should not be extended to a claim made for and on behalf of the dependants of the deceased; (5) the general damages awarded in this case should be apportioned to the widow and the children of the deceased.

Mariayee & Anor v Mohamed Nasir & Anor [1985] 1 MLJ 427 Federal Court, Kuala Lumpur (Salleh Abas LP, Wan Suleiman and Seah SCJJ).

Held: (1) the defendant was entirely to blame for the accident; (2) the plaintiff should be given agreed damages of S$89,600 with costs to be taxed.

Foo Siang Him v Attorney General [1986] 2 MLJ 267 High Court, Singapore (Lai Kew Chai J).

The deceased died in a road accident involving motor lorry AJ 3979 and another lorry BAT 9507 owned by the fourth defendant, the Government of Malaysia, the employer of the deceased who was a passenger in the latter lorry. The third plaintiff the widow of the deceased brought this action, for herself and as next friend of her two minor children the first and second plaintiffs, against the driver and owner of AJ 3979 and the owner of BAT 9507. Damages were agreed and liability admitted, subject to a preliminary point relied on by the fourth defendant, so that should the point be upheld by the court, the owner of AJ 3979 had to pay the whole of the agreed damages of RM60,000. The preliminary point was that since compensation of RM14,000 was paid to the deceased's family, this action against the fourth defendant was therefore bad in law and cannot be maintained under s 41 of the Workmen's Compensation Act 1952 (Act 273).

Held: (1) there was no evidence that the widow had applied to settle any question under s 27(2) of the Act. The preliminary inquiry was one under s 27(3). The memorandum of agreement signed between the widow and the fourth defendant was never recorded under s 28. The deposit of the workmen's compensation could not be said to be such damages recovered in any court; (2) in the circumstances, judgment with costs should be returned against all defendants for RM60,000 inclusive of interest, being agreed damages; (3) the fourth defendant was at liberty to set off the sum of RM14,000 against the damages.

Azimah bte Ismail & Ors v Chang Ng Pang & Ors [1985] 2 MLJ 152 High Court, Seremban (Peh Swee Chin J).

Hoon Wee Thim v Pacific Tin Consolidated Corp [1966] 2 MLJ 240 High Court, Singapore (Gill J).

See DAMAGES (PERSONAL INJURY OR DEATH), Vol 6, para 655.

The deceased was killed on 15 March 1983 when his motorcar collided with a trailer drawn by a lorry driven by the first defendant, who was employed by the second defendant. The accident took place on the bridge at Sungei Damuan. The plaintiff, widow of the deceased, brings this action against the defendants as the administratrix of her husband's estate on behalf of herself, the deceased's mother and her four children aged between 5 and 11. The deceased was aged 30 at the time of accident. He was employed as a driver and operator of a refuelling lorry at the International Airport by Brunei Shell Marketing, earning a basic salary of RM1,100, plus a housing allowance of 25% and allowances of RM200RM250 per month. It was agreed that a multiplier of 14 was reasonable.

Held: (1) the first defendant was 75% liable for the accident and the deceased 25%; (2) (c) provident and retirement funds the award under the Provident Fund is RM13,000 and under the Retirement Fund is RM71,000, totalling RM84,000; (3) 25% (RM93,750) must be deducted from the total of RM31,000 + RM260,000 + RM84,000 + RM375,000, leaving a figure of RM281,250; (4) and RM3,750 for loss of expectation of life at 2% from the writ to judgment. No interest is awarded on the lost years award or the Provident and Retirement Fund awards; (5) a total amount of RM281,250 with costs, was awarded as damages, made up as follows: (a) pre-trial loss from death to judgment (18 months) based on a monthly basic salary of RM1,100, plus 25% housing allowance and other monthly allowance of RM225 plus annual bonus of two months, this gives a figure of RM1,600 ´ 18 + 1,100 ´ 3 (bonus = RM32,100, to which must be added the profit from fishing of RM1,920, making a total of RM34,000. From this must be deducted expenses of RM600 ´ 18 = RM10,800, leaving a pre-trial loss of RM23,200, rounded to RM26,000 with funeral expenses of RM2,750. Loss of expectation of life was agreed at RM5,000. The total pre-trial loss is therefore RM31,000; (b) lost years the deceased died in grade 11 and would take a long time to reach grade 9. RM1,300 is taken as monthly basic salary, to which must be added 25% housing allowance plus other allowance of RM225 per month. This amounts to RM1,850 ´ 150 months (18 months taken into account for pre-trial loss) = RM277,500, to which must be added the bonus of 1[1/2] years (25 ´ RM1,300) of RM32,500 and fishing profit of (12[1/2] years ´ RM1,280) RM16,000 totalling RM326,000. From this must be deducted maintenance of RM600 ´ 150 = RM90,000, thus yielding a figure of RM236,000, to which a sum of RM24,000 (10% ´ post-trial income) should be added as the deceased's savings, giving a total of RM260,000;the pre-trial amount of RM19,500 will carry interest at 6% per annum from death to judgment;the amount awarded must be paid within 21 days.

Mariam bte Ahad v Ernesto A Gacad & Anor [1986] 1 MLJ 266 High Court, Bandar Seri Begawan (Roberts CJ).

The first defendant, a lorry driver, drove a lorry belonging to the second defendant along a quiet and somewhat infrequented side street at a speed and recklessly and noisily. As a result of his negligent driving, which was proved, the plaintiff's daughter was killed while washing clothes at a stand pipe in the side street. The evidence showed that the plaintiff actually saw the accident, as a result of which she suffered from shock and was still sick nearly two years after the accident. The plaintiff, inter alia, claimed damages for shock and illness, and for loss of expectation of life of the deceased arising out of the negligence of the first defendant.

Held: (1) the first defendant could not be exempted from liability for shock to the plaintiff on the ground of remoteness. On the evidence of the doctor, she was, therefore, entitled to damages of RM5,000; (2) as there was no provision in the Courts Ordinance 1948 for an action for loss of expectation of life, the plaintiff's claim under this heading failed.

Zainab v Marimuthu & Anor [1955] MLJ 22 High Court, Alor Setar (Hill J).

This was an action for the recovery of damages which arose out of a road accident in which the second defendant's car and a motor cycle ridden by one HWL and the second plaintiff as pillion rider were involved. As a result of the accident, HWL was killed and the second plaintiff suffered personal injuries. The first plaintiffs (the administratrix and administrator of the estate of HWL) were awarded RM20,000 general damages and RM1,700 special damages.

Su Key & Ors v Shanmugam & Anor [1966] 1 MLJ 98 High Court, Kuala Lumpur (Gill J).

The plaintiff and another person suffered severe burn injuries due to an explosion at an electric sub-station at Taman Universiti, Skudai, Johore. The plaintiff was at the material time an employee of a sub-contractor of the second defendant providing service and repair to the sub-station. The plaintiff claimed damages for personal injury against the first defendant, the engineer in charge of the sub-station, and the second defendant on the alternate grounds of breach of statutory duty and/or negligence at common law.

Held, allowing the plaintiff's claim: (1) the Electricity Supply Regulations 1990 applied in the present case; (2) the defendants were in breach of the statutory duty imposed under regs 22(12)(a), (16)(a), (24)(a) and 32(5) of the Electricity Supply Regulations 1990. The defendants' statutory duty were absolute and as such became actionable once non-performance had been proved, without having to prove any lack of care or diligence on the either one of them. The plaintiff's claim would succeed so long as the defendants were in breach of the Electricity Supply Regulations 1990 and the accident would not have occurred but for the breach, even though the plaintiff had not given an acceptable version of how the accident had occurred; (3) the defendants were negligent in not ensuring that the sub-station was safe. The first defendant as the engineer and authorized person owed to the plaintiff a duty of care to take reasonable care to avoid acts or omissions which he could reasonably foresee would be likely to injure a person so closely and directly affected by his acts or omissions. The second defendant as the undertaker of electricity and the owner of the sub-station owed a similar duty of care to take reasonable care; (4) the defendants were wholly liable. There was no sufficient evidence to show a lack of reasonable care by the plaintiff for his own safety; (5) the plaintiff was entitled as an aggrieved party to file the present suit. He was not an insured person within the meaning of s 31 of the Employees' Social Security Act 1969 on the day of the accident; (6) a fall in the value of money must be taken into account in the use of comparables, so that the award which was eventually given would be reflective of the current value of money. Such a factor was within the expectation of the tortfeasor and would not be bad for remoteness; (7) a deduction from the plaintiff's earnings for maintenance could only be made if the amount was either admitted by the plaintiff or proved by the defendant; (8) future medical expenses, which was pleaded as special damages and proved, was awarded and not absorbed into general damages; (9) future nursing care was awarded on the basis that the plaintiff's wife may not be able to provide care to the plaintiff at all times.

Abdul Ghani bin Hamid v Abdul Nasir bin Abdul Jabbar & Anor Civil Suit No 22346-1993 High Court, Johor Bahru (Abdul Malik Ishak J).

The plaintiff claimed damages against the defendants for injuries suffered by him as a result of a motor vehicle accident. One of the issues submitted by the defence was that there were elements of contributory negligence on the plaintiff's part and, as the plaintiff had not specifically pleaded contributory negligence in his pleadings, his case had to fail.

Held, allowing the plaintiff's claim but finding him 10% contributorily negligent: (1) s 12(1) of the Civil Law Act 1956 stated that the plaintiff's cause of action should not be defeated by his own contributory negligence. The plaintiff's cause of action was always that of negligence and not contributory negligence, which was a defence. To insist that the plaintiff should plead contributory negligence would be tantamount to creating a new cause of action or pleading a defence in the plaintiff's claim. Therefore, it was not necessary for the plaintiff to plead contributory negligence to succeed; (2) contributory negligence was in fact pleaded in the defence and as such, was an issue for the court's consideration. From the facts, the plaintiff had contributed 10% towards the cause of the accident, while the defendants were 90% responsible; (3) and (iii) RM50,000 for the brachial plexus injury causing complete loss of mobility of the left shoulder downwards and loss of sensation in the left upper limb; (4) and 8%pa on the global sum from date of judgment to date of realization; (5) in respect of the plaintiff's injuries, the court awarded general damages of: (i) RM18,000 in respect of cerebral concussion and bleeding and fracture of the skull, causing weakness and spasticity of the lower limbs; (ii) RM12,000 for the degloving injury and scars to the chest, pneumohaemothorax and abdominal injury resulting from retroperitoneal haematoma;in respect of loss of future earnings, the sum of RM200 per month for 16 years (RM38,000) was awarded, while special damages were agreed at RM1,515. All sums were reduced by 10%. Interest was granted at 8%pa on general damages (excluding loss of future earnings) from date of extraction of writ to date of judgment; 4%pa on special damages from date of accident to date of judgment;(obiter) contributory negligence had to be pleaded before it could be considered. If the defendant did not plead contributory negligence, it did not become an issue before the court and the apportionment of liability could not proceed. In such an event, if the plaintiff was able to prove any degree of negligence against the defendant he would succeed in his case despite the fact that he might have contributed towards it and would be entitled to damages based on a 100% liability on the part of the defendant.

Hamizan bin Abd Hamid v Wong Kok Keong & Anor [1994] 3 MLJ 630 High Court, Shah Alam (James Foong J).

Case name: Ee Chye Heng v Chia Mun Fook

Ee Chye Heng v Chia Mun Fook Civil Suit No 542 of 1985 High Court, Ipoh (Abdul Malek J).

Case name: Choo Kwai Ngor v Soo Kia Lim

Choo Kwai Ngor v Soo Kia Lim Muar Sessions Court No 25-52-85 Lau Bee Lan, Magistrate

[Annotation: Plaintiff's claims for loss of future earnings and loss of earning capacity were dismissed by the court.]

Even if the particular post which the plaintiff held at the time of the accident was shortly to be abolished and he had no prospect of continued employment with a particular firm, it would not be fair to assume that he could not have got some sort of employment during that period and this should be taken into consideration in increasing the damages.

Quek Seng Hee v Wah Kim Beng [1959] MLJ 215 Court of Appeal, Singapore (Rose CJ, Tan Ah Tah and Buttrose JJ).

In this case the plaintiff brought an action for damages for negligence arising from a road accident between a military truck and a taxi in which the plaintiff was a passenger. Subsequent to the action by the plaintiff, the defendants brought in the driver of the truck and the Government of Malaysia as third parties and sought contribution or indemnity from them. The third parties sought to rely on the Public Authorities Protection Ordinance, as they were brought in more than a year after the collision.

Held: (1) on the facts, the driver of the military truck was wholly to blame for the accident and the action of the plaintiff against the defendants had to therefore be dismissed; (2) the third parties were brought in, in order to call upon them to make contribution or indemnity if the defendant was found to be liable. Since it had been found the defendant was not liable, the third parties were also not liable; (3) assuming that the defendant was liable in part for the accident, the third parties were also liable, as the cause of action against them accrued only on the finding of the liability against the defendant. They could not therefore claim that the period of limitation had expired.

Hassan bin Mat Saman v Tengku Mat & Anor; Abdullah bin Haji Daud & Ors (Third Parties) [1975] 4 MC 287 High Court, Kota Bahru (Abdul Razak J).

The plaintiff sustained personal injuries as a result of a road traffic accident. He was 11 years of age. He sustained a four inch laceration wound over the media tendon and a fracture of the ankle bone. The judge awarded general damages RM2,500 for pain and suffering; special damages RM175.

Chock Kek Ling v Patt Hup Transport Co Ltd & Ors [1966] 1 MLJ 120 High Court, Malacca (Raja Azlan Shah J).

The plaintiff, who was employed by the first defendant as a storekeeper, was injured on 18 February 1984 when he was driving a forklift at the first defendant's warehouse, and the brakes failed. The plaintiff's left arm was severely crushed and subsequently amputated below the elbow as a result of the accident. Just one day before the accident, the forklift brakes had been repaired by the second defendant. The plaintiff commenced an action against the first defendant for breach of statutory duty in failing to maintain the forklift properly and to keep it in efficient working order and good repair, and also for negligence in failing to take adequate safety precautions of the plaintiff's safety, in committing the plaintiff to operate the forklift which was in a dangerous and defective condition, and for failing to maintain or repair properly the brakes of the forklift. The plaintiff's claim against the second defendant was for negligence in failing to repair the brakes of the forklift which the second defendant knew or ought to have known was defective, and for failing to locate properly the fault or defect in the braking system. The first defendant denied negligence or breach of statutory duty, and submitted that at the material time, the plaintiff drove the forklift outside the course of his employment, that the first defendant's warehouse was not a factory within the meaning of the Factories Act (Cap 104, 1985 Ed) and that the forklift was not a lifting appliance or lifting machine within the meaning of s 7(1) of the Act. They also averred that the accident was caused or contributed to by the negligence of the plaintiff, alternatively, that it was caused by the negligent and faulty repairs carried out by the second defendant. The second defendant's defence denied negligence and averred that the accident was caused solely or contributed to by the negligence of the plaintiff. However, at the hearing, the second defendant did not defend the action. General damages and some items of special damages were agreed. The court was left to decide liability, pre-trial loss, cost and maintenance of an artificial limb, and loss of future earnings.

Held, allowing the plaintiff's claim: (1) as to the allegation that the plaintiff was driving the forklift outside the course of his employment, the plaintiff was a storekeeper and incidental to his work, he had to drive the forklift. On the day of the accident, as the forklift driver was not around, he drove the forklift in connection with his work and for the purpose of the first defendant. Clearly what he did was fully within the course of his employment; (2) the arguments of both the plaintiff's and first defendant's counsel proceeded on the basis that the warehouse in which the plaintiff was injured was a factory within the meaning of the Factories Act, and as such it is unnecessary to determine this point. Section 31(1) of the Factories Act imposes an absolute duty on the employer to maintain properly the equipment within the meaning of the Act, that is, in an efficient state, in efficient working order and in good repair. In particular, the word 'maintained' in s 31(1)(b) denotes a continuance of a state of working efficiency, and hence s 31(1) imposes on the occupier of a factory, among other things, an absolute and continuing obligation to maintain properly a lifting appliance or lifting machine, which includes a forklift; (3) as it has been proved by the plaintiff and not in any way disputed by the first defendant, that at the material time the brakes of the forklift were defective and not 'in an efficient working order and in good repair', the first defendant was in breach of the statutory duty as a result of which the plaintiff sustained injuries; (4) if he does delegate the performance of such duty and the duty is performed negligently, he remains vicariously liable; (5) the first defendant had engaged the second defendant to service and maintain the forklift. The second defendant's employee had carried out the repair negligently: he failed to repair the brakes properly, as after the purported repair work, they were still found to be defective. Thus the first defendant is liable for breach of its common law duty to its employee; (6) the first defendant was also in breach of its duty to take reasonable care to provide a safe system of work. The regular driver of the forklift, who had complained about the defective brakes, should have been present while the repair was being carried out or should have been around at the warehouse and tested the forklift after the repair had been carried out. The first defendant ought to have had the forklift tested before it was allowed to be used. Therefore, there was a failure on the part of the first defendant to provide adequate and proper supervision and checking of the maintenance of the forklift; (7) as to the first defendant's allegation that the plaintiff had committed a rash and negligent act, on the facts, the evidence adduced by the first defendant was pure fabrication. There was no rash and negligent act on the part of the plaintiff, and the plaintiff succeeded in establishing a claim in common law for negligence against the first defendant; (8) the second defendant was not represented throughout the greater part of the hearing, and no evidence was adduced by it to resist the claim. The second defendant's mechanic was negligent in repairing the brakes, and accordingly, the second defendant was also liable to the plaintiff; (9) as the second defendant was more to blame for the accident, liability was apportioned at 30% to the first defendant and 70% to the second defendant; (10) at common law, an employer is under a duty to use reasonable care to provide, among other things, safe plant and appliances for use by its employees and to maintain them in a proper condition. An employer cannot escape liability by delegating the performance of such duty to an independent contractor;agreed general damages for pain, suffering and loss of amenities in the sum of S$65,000 was awarded. Agreed special damages, other than the cost of an artificial limb and of maintenance thereof and actual loss of earnings, were agreed at S$1,150. Having regard to all the circumstances, the sum of S$56,000 was awarded for pre-trial loss and a sum of S$25,000 for the cost of an artificial limb and maintenance. S$54,000 was awarded for loss of future earnings based on a yearly multiplicand of S$9,000 and a multiplier of 6.

Ng Kim Cheng v Naigai Nitto Singapore Pte Ltd & Anor [1991] 2 MLJ 296 High Court, Singapore (LP Thean J).

The plaintiff suing through his next friend, brought this action for damages against the defendants for personal injuries sustained by him in an accident. The plaintiff as a result of that accident sustained injuries without any serious disfigurement but during his period of incapacitation he did not suffer any financial loss. The damage was assessed at RM500 on the basis that the plaintiff's injuries were not serious although for a time he experienced pain as a result thereof and that he did not suffer any financial loss.

Noor Mohamed v Palanivelu & Anor [1956] MLJ 114 High Court, Kuala Lumpur (Buhagiar J).

The plaintiff, a creping machine operator, aged 32, had his left hand caught in the nip of the rolls and crushed, leaving only the proximal phalanges of the thumb and little finger, while the skin of most of the hand was also removed. He was in hospital for over a month. The limb being totally useless after healing of the wound, he took the advice of the orthopaedic surgeon, and on 9 September 1959 underwent an amputation of the lower third of the forearm in order that functional capacity of the disabled limb might be improved by being fitted with an artificial arm. In awarding damages, Ong J said: 'As regards damages the plaintiff claims by way of special damages a sum of RM298 for travelling expenses, which has been agreed. There is a further claim for loss of wages at RM120 per month for 18 months, from 27 March 1959 to 27 September 1960, and continuing. He was a daily paid worker at RM4 a day, plus overtime. On the evidence, I think a sum of RM96 would fairly represent an average month's income. He ought to have mitigated his losses, but appears to have made no attempt to do so. He might have earned less than his usual wages but he certainly could not have earned nothing at all until now if he had not preferred to remain idle. Under this head of claim I would award him, in round figures, the sum of RM2,000. As regards general damages, the loss of effective use of his hand, as a direct result of his actual injuries is no greater and no less than his present disability after amputation. I have given careful consideration to his past employment, his present circumstances and his future prospects of earning his living. For pain and suffering, reduction of future earnings, disability and loss of amenities, I think that, having regard to all the circumstances, a sum of RM10,000 is a fair and proper compensation. There will be judgment accordingly in favour of the plaintiff for RM12,298 and costs.

Lim Thong Eng v Sungei Choh Rubber Co Ltd [1962] MLJ 15 High Court, Kuala Lumpur (Ong J).

This was an appeal against the decision of the learned Chief Justice, dismissing the plaintiffs' claim in respect of injuries sustained by the first plaintiff then aged 17 [1/2]. The appellant/first plaintiff was employed by the respondents as a sweeper in their factory. He also assisted in the operation of a machine which compressed shredded paper or paper sweepings into bales of paper. The machine consists of three sections: the prime mover, the transmission machinery with its control, and the end device or appliance. On one occasion the appellant/first plaintiff's right hand was caught in the well of the machine, resulting in the amputation of part of his right forearm.

Held: the general damages in respect of pain and suffering, loss of amenities and enjoyment of life, embarrassment, etc assessed at S$20,000, and damages for loss of future earnings assessed at S$10,000, were reduced by one-third to S$20,000.

Ng Kay Thian & Anor v Redhill Paper Converters Ltd [1971] 2 MLJ 256 Court of Appeal, Singapore (Tan Ah Tah, Winslow and Choor Singh JJ).

The plaintiff sustained injuries in a traffic accident. He alleged that he was knocked down by a car. The plaintiff who was 42 years old and a bill collector sustained injuries as a result of which his left arm had to be amputated.

Held: in the circumstances of this case and having regard to the current trend of awards in similar cases, the general damages in this case would be fixed at RM22,500.

Ng Kay Thong v Chee Shan Shong [1966] 1 MLJ 234 High Court, Kuala Lumpur (Abdul Aziz J).

This was a claim for damages for personal injuries and loss suffered by the plaintiff caused by the negligence of the second defendant. On 27 March 1967, the plaintiff was travelling as a paying passenger in a motor taxi driven by the fourth defendant, when a motor lorry driven by the second defendant suddenly reversed from a side lane and collided with the nearside of the motor taxi. As a result of the impact, the plaintiff, who was seated in front, sustained injuries. His left arm was completely severed at midarm level and he also suffered a small laceration on the left lower eyelid with contusion of the left eye.

Held: general damages of RM25,365 and RM4,950 special damages and costs were to be awarded to the plaintiff.

Foo Kok Foo v Yap Hai Chwee & Ors [1972] 1 MLJ 153 High Court, Kuala Lumpur (Mohamed Azmi J).

This was an appeal against the decision of Abdul Aziz J who had awarded RM22,500 general damages and RM602.70 for special damages in a running-down action ([1966] 1 MLJ 234). The appeal was against quantum. The appellant was 42 years old and as a result of the accident lost all but five inches of his left arm. He was hospitalized for 50 days and an artificial arm had been fitted for him. It was argued that damages were too low and out of line with the trend of comparable cases.

Held: the learned trial judge in this case had considered all relevant factors in his assessment of the damages and the appeal should be dismissed.

Ng Kay Thong v Chan Shon Shong [1966] 2 MLJ 305 Federal Court, Kuala Lumpur (Barakbah LP, Ong Hock Thye FJ and Ismail Khan J).

The plaintiff (respondent herein) claimed damages against the defendants (one of whom was the appellant herein) on the ground that the injuries sustained by him were caused by the negligence of the defendants. The plaintiff was at the relevant time a wharf labourer. He was walking along a plank one end of which was placed on a boat anchored in the Singapore River and the other end on the edge of the quay at Boat Quay. The first defendant drove a motor-lorry which collided against the plank. This caused the plaintiff to fall into the river and he sustained an injury on his left arm. After the accident he was taken to the third defendant (the appellant), a Chinese physician (a 'sinseh'), for treatment of the injured arm. The third defendant applied some medicine to the arm and bandaged it. Three days later it became gangrenous and was amputated at the General Hospital. The plaintiff and the first two defendants arrived at a settlement and judgment by consent was entered in favour of the plaintiff. The only issue remaining to be tried was whether the third defendant was liable for negligence. The learned trial judge came to the conclusion that the third defendant was negligent in his treatment of the plaintiff's left arm and accordingly awarded S$28,070 as damages to the plaintiff (of this amount S$25,000 was for general damages). The third defendant appealed.

Held: dismissing the appeal, (1) the learned trial judge was right in finding that the loss of the plaintiff's left arm was caused by the negligent treatment given by the third defendant; (2) the sum of S$25,000 awarded by way of general damages was excessive. In this case the sum of S$17,500 would be a fair amount to be awarded for general damages. The total amount of damages would therefore be reduced from S$28,070 to S$20,570.

Ang Tiong Seng v Goh Huan Chir [1970] 2 MLJ 271 Court of Appeal, Singapore (Wee Chong Jin CJ, Tan Ah Tah and Chua JJ).

The parties having agreed that liability should be shouldered 50/50 and that special damages were to be at a sum of RM13,085, three issues arose in this hearing, namely: (a) quantum for pain and suffering and loss of amenities; (b) quantum for artificial limbs for future use and (c) loss of earnings for past and future. The plaintiff sustained severe injury to his right arm when he met with a road accident on 28 February 1989. The plaintiff underwent three operations to save his right arm but to no avail. Finally amputation of the arm above the elbow was carried out. When the plaintiff attended the hearing, he was using an artificial mechanical arm which could open and close mechanically about 3 cm only, consequently putting the plaintiff as a user to great disadvantage in that he had very poor control of simple movements. The plaintiff had been examined by a specialist in Singapore, who had recommended that the plaintiff be fitted with an electrical hand complete with an electronic hook, the cost of which would be S$9,000 to S$10,500. The specialist further recommended that the plaintiff be supplied with two artificial limbs and that the plaintiff needed to change the artificial limb once every six years until the plaintiff reaches the age of 65 to 70 years of age. The defendant questioned the plaintiff's need for an electrical arm as compared to a mechanical one which he already had.

Held, awarding damages to the plaintiff: (1) the general rule on the function of damages in tort actions is purely to put the plaintiff in the position had the tort not been committed in the first place and this can be done only with a reasonable award of damages. On the other hand, public policy considerations should not be used as a barometer in assessing damages. Large awards motivated by sympathy towards an injured plaintiff should not be encouraged but reasonably fair awards supported by evidence should be the correct guideline to adopt in assessing damages; (2) as a victim of the defendant's tortious act, the plaintiff is entitled to seek the best medical facility in order to put him back in his original position as though he had not met with the accident; (3) all artificial limbs require periodical servicing and repair and during the period of service or repair the plaintiff cannot be asked to do without them. It is the practice all over the world to supply two artificial arms every six years and the defendant has not challenged this practice; (4) in awarding damages for loss of future earnings, the court shall take into account only the amount relating to his earnings at the time when he was injured and the court shall not take into account any prospect of the earnings as aforesaid being increased at some time in the future; (5) monthly loss would be based on RM1,200 per month being the sum which the plaintiff would have paid to a helper in the event that his wife did not assist him full time in the business and this amount should be used as a multiplicand; (6) it is enacted in s 28A(2)(d)(ii) of the Civil Law Act 1956 that in assessing damages for loss of future earnings, the court shall take into account that in the case of any other person who was of the age range extending between 31 and 54 years at the time when he was injured, the number of years' purchase shall be calculated by using the figure 55 minus the age of the person at the time when he was injured and dividing the remainder by two; (7) past earnings are calculated by taking the number of months between the accident and the date wherein the plaintiff prepared his written submission and multiplying it with the multiplicand.

Appalasamy a/l Bodoyah v Lee Mon Seng Civil Suit No 23-135-1990 High Court, Johore Bahru (Abdul Malik Ishak J).

The plaintiff, a bangsawan dancer and singer, who was a passenger in a motor bus sustained an injury to her right arm, which led to the amputation of the arm above the elbow, in a collision between the bus and another vehicle. At the time of the collision, her elbow was resting on a window frame and projecting through the open window. The defendant who was sued as the employer of the driver of the other vehicle denied negligence and set up, as a further ground of defence, contributory negligence on the part of the plaintiff.

Held: a passenger who owes no duty to the driver of an oncoming vehicle, and who is seated in a normal manner and not infringing any prohibition or disregarding any warning, cannot be guilty of contributory negligence. Damages in the sum of RM2,000 were awarded to the plaintiff.

Katijah v Lee Leong Toh & Anor [1940] MLJ 87 High Court, Johore Bahru (Laville J).

This was an appeal against the award by the High Court of a sum of RM35,000 in respect of a claim by the respondent for the loss of her arm as a result of personal injuries sustained by her due to the negligence and/or breach of statutory duty on the part of the appellants, their servants or agents in failing to provide a safe system of work. It was contended that the award was considerably in excess of any discernible trend of awards made in cases involving similar injuries to persons of similar education and earning capacity and was manifestly excessive.

Held, allowing the appeal: (1) an appellate court can only interfere with an assessment if it is considered inordinately low or inordinately high or if it is so much out of line with the discernible trend or pattern of awards in reasonably comparable cases that it might be regarded as a wholly erroneous estimate; (2) in this case the award was inordinately high and manifestly excessive and the award should be reduced to RM27,500.

United Plywood and Sawmill Ltd v Lock Ngan Loi [1970] 2 MLJ 237 Federal Court, Malacca (Ong CJ (Malaya).

The plaintiff, while travelling in a bus owned by the first defendant and driven by the second defendant, sustained serious crushing injury to his right arm, which had to be amputated. He was awarded RM2,400 by the learned trial judge as special damages, and RM25,000 as general damages. On cross-appeal, it was argued on behalf of the plaintiff that the award of RM25,000 for general damages was so inordinately low as to justify the Court of Appeal in interfering and in particular that it was very much below the general run of damages given by the courts in such cases.

Held: (1) dicta of Birkett LJ in Bird v Cocking & Sons Ltd [1951] 2 TLR 1260, Singleton LJ in Rushton v National Coal Board [1953] 1 QB 495 and Morris LJ in Scott v Musical [1959] 2 QB 429 applied; (2) whether or not the award made by the trial judge was satisfactory, in all the circumstances of the case, it was not a wholly erroneous estimate of the damage suffered;in applying the above dicta, two considerations must be borne in mind: (i) local social, economic and industrial conditions are poles apart from conditions in England and Scotland and any tendency to take a particular line in relation to assessment of damages in cases of this type from a consideration of English and Scottish cases is not calculated to produce very useful results; (ii) local reported cases are so few in number and so diverse in their conclusions that they cannot afford any very reliable guidance.

Pahang Lin Siong Motor Co Ltd & Anor v Cheong Swee Khai & Anor [1962] MLJ 29 Court of Appeal, Kuala Lumpur (Thomson CJ, Hill and Good JJA).

A 32-year-old ex-tailor employed by the defendants as a winch driver of their dredging crane suffered multiple lacerations of the right hand and wrist involving wrist joint; compound fracture of the lower and ulna bone and the two main arteries of the hand; the median nerve and flexor muscle were severed. Two of the small bones of the wrist had been detached. As a result of these injuries the plaintiff had what is called a 'claw hand'. General damages: RM12,500; Special damages: RM469.50.

Abdul Samad v Gammon & Christiani-Nielsen [1962] MLJ cxxiii High Court, Kuala Lumpur (Gill J).

The plaintiff, a taxi driver aged 34 had his right arm disarticulated from the shoulder joint as a result of an accident for which the defendant admitted liability. The medical consultant was of the opinion that the plaintiff had lost the use of that arm completely and he could never derive any benefit from the artificial arm which would merely serve as an ornament. The plaintiff was earning a salary of about S$200 per month. It was also in evidence that he would no longer be able to drive a taxi and had not done so since the accident.

Held: (1) and (c) the disadvantage arising from disablement apart from loss of earning power. With regard to (c), one must take into account factors such as loss of the amenities and enjoyment of life, the embarrassments and drawbacks to which a man without a right arm will ordinarily be exposed and other disadvantages; (2) in assessing general damages, there are three elements to be considered: (a) pain and suffering; (b) loss of future earnings;one has to bear in mind that in dealing with award of damages in Singapore, the standards of England do not necessarily apply and one must make allowances for different living conditions and lower earning capacities here of persons like the plaintiff. Taking all these factors into consideration, the plaintiff should be awarded S$25,000 for pain and suffering and all the disadvantages arising from his disablement plus a further sum of S$23,000 for loss of future earnings and S$5,240 as special damages.

Saw Tong Seng v Ong Kim Hoon [1968] 1 MLJ 203 High Court, Singapore (Winslow J).

The plaintiff, Chan Lye Huat, rider of a motor cycle, claimed damages for personal injuries and other losses suffered by him as a result of an accident on 19 October 1979 involving a motor car driven by the defendant travelling in the opposite direction along Jalan Chain Ferry, Butterworth. The plaintiff said that he was knocked by the car on his side of the centre white line of the road as the car crossed it in order to overtake a bus. The off side of his motor cycle came in contact with the off side of the car before the car could swerve back to its side. Under cross-examination, the plaintiff admitted he could not say exactly how much the defendant had encroached on to his side of the road. The defendant gave a different story of the accident. The plaintiff was admitted to the Penang General Hospital on 19 October 1979 and suffered the following injuries: (a) laceration right forearm with cut extensor muscles; (b) fracture mid-shaft right radius; (c) fracture lower third right ulna; (d) subluxated lower radial-ulnar joint. He was discharged on 5 December 1979 and readmitted on 20 December 1979 until 11 February 1980 for manipulation of displaced fractures. The plaintiff was 40 years old at the date of trial.

Held: (1) on the balance of probabilities, the accident occurred when the defendant was partly on the wrong side of the road and as he was cutting back to his correct side and whilst the plaintiff himself was driving about three feet from, or perhaps even nearer to, the centre white line. In the circumstances, the plaintiff was liable for one-third and the defendant for two-thirds of the accident; (2) special damages agreed at RM580 (with interest at 3% per annum from date of accident to date of trial) were awarded; (3) a sum equivalent to half of RM11,493 claimed by the plaintiff was allowed for loss of income from 20 October 1979 to 31 December 1980; (4) a sum of RM270 per month was allowed as the amount paid by the plaintiff to his assistant for helping him to run his business from 1 January 1981 to 24 November 1983; (5) general damages for loss of future earnings were awarded based on ten years' purchase at the rate of RM270 per month; (6) a sum of RM20,000 was awarded for pain and suffering, with interest at 6% from service of writ to date of trial; (7) the defendant would pay the taxed costs. As the plaintiff was one-third liable for contributory negligence, he was entitled to two-thirds of the various amounts assessed.

Chan Lye Huat v Tan Ong Kong [1985] 2 MLJ 112 High Court, Penang (Gunn Chit Tuan J).

The first plaintiff, Mahat, rider of a motor cycle, met with an accident at 23[1/2] milestone, Air Hitam/Johore Bahru road, on 12 August 1981. The second plaintiff (Zaleha) was his pillion rider and wife-to-be. He left Muar for Johore Bahru for his wedding which was to take place that evening. A collision took place between the motor cycle and the motor-lorry driven by the first defendant (lorry driver) at about 2.25 pm when the weather was good and the road dry. Coming from Air Hitam and proceeding in the direction in which Mahat was travelling, the first defendant had to negotiate a very sharp left-hand bend just before the place where the impact occurred. Coming from Johore Bahru and going in the direction in which the lorry driver was travelling, Mahat had to negotiate a left-hand bend after which the road was straight for some 3[1/2] to 4 chains to the place where the impact occurred. The damage to the lorry was concentrated entirely on its offside rear wheel. The entire damage to the motor-cycle was concentrated on its front in the vicinity of the wheel which had come adrift. Mahat said after he had negotiated the bend, he saw the lorry encroach onto his path. Zaleha's evidence on liability is substantially similar to Mahat's. The lorry driver said he had taken a slight left-hand bend and was approaching the scene of accident when he saw the motor cycle negotiating the bend ahead. After the motor cycle went past, the lorry driver heard a bang from the rear. Mahat sustained fracture of the mid-shaft of the right radius and ulna and the right femur. Compression plating of the right radius and ulna was done on 24 August 1981 and intramedullary mailing of the right femur was done on 2 September 1981. Thereafter his right knee was stiff and his right elbow was limited in supination. He had scars on his forearm and thigh and on the right gluteal region. There was some limitation of movements in the right hip. He had an abnormal extension of ten degrees in the right knee and a limitation flexion also which would prevent him from squatting and sitting cross-legged. He was a piling operator and his injuries were such that he would not be able to return to his job as a piling machine operator. Zaleha sustained a fracture of the left acetabulum and superior ramus of the right pubic bone and abrasions and lacerations. As a result of her injuries, she cannot move her hips, knees and feet with normal facility, walking is barely possible and is at a slow rate. She walks with a limp and is liable to lose balance easily. In her case also, the only dispute was her claim for earning capacity because she could not function comfortably in her occupation as a telephone operator.

Held, dismissing the action with costs: (1) the accident was caused entirely by the negligence of Mahat; (2) (c) claim for loss of earning capacity failed for lack of evidence; (3) in the event that the defendants were liable, damages would be assessed as follows: In respect of Mahat (a) special damages agreed at RM4,500; (b) general damages agreed at RM34,000; (c) RM700 per month for the period of total incapability; (d) future loss assessed at 17 years and 2 months at RM100 per month on the actuarial tables. In respect of Zaleha (a) special damages agreed at RM600; (b) general damages for pain and suffering agreed at RM40,000;(obiter dictum) 'The time may soon come for us to consider whether in the light of modern circumstances, the cause of action vested in a married woman to sue for damages which her husband has caused her does not constitute a part of her separate property.'

Mahat bin Abdul Majid & Anor v Lau Kui & Anor [1986] 1 MLJ 351 High Court, Johore Bahru (Shankar J).

The first and second plaintiffs sued the defendant for damages for negligent driving of his motor-lorry. The defendant admitted liability and consent judgment had been entered in favour of the first plaintiff. The case concerned the assessment of the quantum of damages for the second plaintiff, an army corporal aged 33 at the time of trial. As a serviceman, he would retire at 40. He suffered injuries to his right arm. There was extensive soft tissue injury to right anti-cubital fossa with skin loss. There was laceration in his right leg. There was no fracture. Skin graft was done to his right cubital fossa ulcer. He was discharged about two months after the accident and followed-up with physiotherapy. The wound had then healed.

Held: (1) RM20,000 would be a fair and reasonable amount for pain and suffering and loss of amenities; (2) the loss of future earnings of his salary would be in the round figure of RM11,500 based on four years' purchase of RM270 per month being a round figure for the difference in his present salary and the maximum salary of a staff sergeant which he would be drawing in 1991; (3) a sum of RM6,000 was awarded for loss of future earnings after retirement; (4) a sum of RM9,500 was awarded for loss of pension and RM1,766 for loss of gratuity; (5) special damages were agreed at RM546; (6) the second plaintiff was therefore entitled to RM48,766 as general damages and RM546 as special damages with interest and costs.

Rodiah bte Ibrahim & Anor v Teoh Chiang Meng [1985] 2 MLJ 116 High Court, Penang (Mohamed Dzaiddin J).

This was an appeal from the decision of the High Court at Ipoh which gave judgment for the respondent and awarded the sum of RM2,017,440 in general and special damages due to the injuries suffered by him and caused by the negligent driving by the appellant of a motor van which grazed against the respondent's left arm while he was walking beside his car in a street in Ipoh.

Held: (1) in this case, the learned judge has failed to make a specific finding of fact on the expert evidence. It is not clear whether he assessed the damages for loss of earnings on the basis of the respondent's inability to perform major plastic surgery or any form of plastic surgery at all. The learned judge had not taken proper advantage of having seen and heard the expert witnesses in order to assess the value, reliability and the impressiveness of the evidence on either side to justify his conclusion; (2) the general principle is that an injured plaintiff is entitled to damages for the loss of earnings and profits which he has suffered by reason of his injuries up to the date of trial and for the loss of the prospective earnings and profits of which he is likely to be deprived in the future. There must be evidence on which the court can find that the plaintiff will suffer future loss of earnings it cannot act on mere speculation. If there is no satisfactory evidence of future loss of earnings but the court is satisfied that the plaintiff has suffered a loss of earning capacity, it will award him damages for his loss of capacity as part of the general damages for disability and not as compensation for future loss of earnings. In this case, the respondent has not shown that he has lost any future earnings but has only shown a diminished earning capacity; (3) in this case, the respondent should be awarded RM51,000 as part of general damages for loss of earning capacity and this together with the agreed damages of RM5,000 for personal suffering would make the sum of RM56,000 for general damages; (4) in view of the long delay in which the case came up for trial, there will be 6% interest on general damages from the date of service of the writ instead of 8% as awarded and 3% interest on special damages from the date of the accident instead of 4%.

Ong Ah Long v Dr S Underwood [1983] 2 MLJ 324 Federal Court, Kuala Lumpur (Lee Hun Hoe CJ (Borneo).

Dr Underwood was struck by a motor van driven by the respondent and suffered an injury to his left forearm which caused weakness of the left arm, loss of grip in the left hand and tremors of the left wrist and fingers. By agreement, the learned judge found Dr Underwood entitled to RM5,000 as general damages for pain and suffering and loss of amenities and RM2,000 a month for two months in respect of loss of earnings and RM200 per week for 20 weeks in respect of partial loss of earnings and RM200 in respect of damage to his watch. He also found Dr Underwood entitled to special damages for loss of earnings amounting to RM899,000 as pre-trial loss on the basis of a net sum of RM62,000 per annum after allowance of 50% for the tax element and also entitled to the sum of RM1,118,400 as special damages for loss of earnings as post-trial loss on the basis of net post-tax loss of RM14,500 per month and using a multiplier of eight years. The learned judge further ordered that the respondent pay to Dr Underwood interest at the rate of 8% per annum on general damages from the date of service of the writ to the date of judgment and at the rate of 4% per annum on special damages of RM907,200 only from the date of the action until the date of judgment and at the rate of 8% from the date of judgment till the date of realization. Dr Underwood was found entitled to his costs of the suit from the respondent on a party and party basis. On appeal, the Federal Court set aside the awards of RM899,000 and RM1,118,440 and substituted an award of RM51,000 as general damages for loss of future earning capacity. The Federal Court also ordered that the award of interest on general damages at the rate of 8% be reduced to 6% per annum and the award of interest on special damages at the rate of 4% be reduced to 3%. In this appeal, Dr Underwood argued that the judgment of the Federal Court of Malaysia should be set aside and the order of the High Court be restored. In the statement of claim, particulars of special damages were given: (a) Loss of earnings for two months at RM3,000 a month RM6,000 (b) Partial loss of earnings for a further period of 20 weeks at RM300 a week RM6,000 (c) Damage to Rado watch RM200 RM12,000; and went on to claim (i) Damages; (ii) Special damages of RM12,200; (iii) Interest at the rate of 6% from the date hereof to date of realization; (iv) Costs.

Held: (1) although the figures for a major plastic surgeon are the possible earning capacity of the appellant, it is not correct to assume that he lost this amount. It is clear reading the learned judge's decision as a whole that he did not regard it as having been established as certain that the appellant would have earned this amount and yet he allowed this loss of income as if it was certain. The learned judge therefore erred in principle; (2) in the circumstances, it is right to assess the chance that the appellant would have become a major plastic surgeon with the earning pattern found by the trial judge at a level which would allow him 50% of those additional earnings as a proper award. The pre-trial loss of income would therefore be RM499,500; (3) for the post-trial loss, it is reasonable to assume, as did the Federal Court, a working life of eight years from the date of trial with a multiplier of six years. Discounted at 50% this gives an award for post-trial loss of RM522,000; (4) the order of the Federal Court should be amended by ordering that there should be an award to the appellant of RM499,500 for pre-trial loss of earnings and of RM522,000 for post-trial loss of earnings and that the award of RM51,000 as general damages for loss of future earning capacity be deleted from the order.

Dr S Underwood v Ong Ah Long [1986] 2 MLJ 246 Privy Council Appeal from Malaysia (Lord Keith of Kinkel, Lord Brightman, Lord Griffiths, Lord Mackay of Clashfern and Lord Oliver of Alymerton).

At about 1.30 am on 19 April 1966, there was an accident at 13[1/2] milestone Machap Baru/Durian Tunggal Road involving the plaintiff's car and a lorry driven by the defendant. The facts were: (a) the two vehicles were travelling in opposite directions; (b) the accident took place at a bend; (c) there was no dividing white line in the centre of the road; (d) the damage to the vehicles was slight and on the offside; (e) the plaintiff was at all relevant time driving the car with his right arm resting on the offside door window with his elbow sticking out; and (f) the plaintiff refused, or was not prepared, to undergo a second operation which might or might not be successful.

Held: (1) it was far more desirable to give a one lump sum award in respect of general damages. The award of damages under different heads of damages merely tends to inflate the quantum; (2) general damages cannot be awarded by way of restitution but only by way of compensation and do include loss of earning. In fact general damages include damages in respect of injury to the plaintiff's health, the loss of his limb, if any, pain and suffering, his inability to return to his normal occupation and every other form of loss which he may suffer and which is not covered by special damages.

Goh Beng Seng v Dol bin Dolah [1970] 2 MLJ 95 High Court, Malacca (Sharma J).

This was an appeal against the quantum of general damages awarded to the plaintiff as a result of an accident in which he sustained injury to his left arm. The plaintiff had refused to have his arm amputated and as a result had to undergo a lot of pain and trouble for treatment. According to the medical evidence he could do any work not requiring use of the left arm. He was awarded RM15,000 as general damages. It was argued that the damages awarded in this case were not 'in line with a discernible trend or pattern of awards in similar cases'.

Held: in the circumstances of this case, the amount awarded for general damages was reasonable and not out of line with the discernible trend or pattern of awards in similar cases. 'Damages for injuries' include damages for loss of future earnings.

Lim Whong In v Hock Cheong Newspaper Transport Co Ltd & Ors [1967] 1 MLJ 105 Federal Court, Johore Bahru (Barakbah LP, Ismail Khan and Ali JJ).

The plaintiff was 60 years and 4 months old on 26 June 1984 when the accident took place. At the material time, he was the managing director of his family business. The plaintiff was driving his motor car when an SBS bus driven by the first defendant along Bras Basah Road collided into the rear of the plaintiff's car. The collision caused the plaintiff's car to be pushed forward more than 65m across two pedestrian crossings before it collided into the rear of another motor car. As a result of the collision, the plaintiff suffered severe back injuries and was hospitalized for 441 days.

Held: (1) but a driver was under no duty to give warning of his intention to merely decelerate his speed; (2) acceleration and deceleration were part of the give and take of driving. The duty of an on-coming vehicle was to keep clear of the vehicle in front, having regard to the fact that it might suddenly change speed without warning. Deceleration without warning was not an act of negligence. There was no negligence on the plaintiff's part for slowing down when he approached the traffic lights; (3) the critical words of rr 5 and 6 of the Pedestrian Crossing Rules 1982 required a driver when approaching a pedestrian crossing to proceed at such speed as would enable him to stop his vehicle before reaching such crossing if necessary; (4) visits to the hospital by the plaintiff's wife and children were a factor in the recovery of the plaintiff and was clearly recoverable. Recovery was also consistent with the statutory duty placed on spouses by the Women's Charter (Cap 353). Transportation expenses would therefore be allowed; (5) the plaintiff was an old man but after taking into account his age at the time of the accident and at the date of trial, the way he had coped with his injuries, and the steel-like qualities to fight against odds and his handicap, the proper multiplier should be five; (6) the multiplier was an artificial figure and took into account the accelerated receipt and uncertainties with regard to the future but multipliers had to be specific to the individual plaintiff. This was a case where the court had to have regard to the life expectancy and also to the working life. In respect of life expectancy, the court used five as the multiplier but for his working life the court chose two; (7) if a driver was about to make a sudden heavy stop, he was under a duty to signal traffic behind him of his intention;a total award of S$245,580.60 was awarded to the plaintiff.

Leong Kwong Sun v Teng Ching Sin & Anor Suit No 2543 of 1988 High Court, Singapore (KS Rajah JC).

The plaintiff in this case was a 22-year-old girl. She was severely injured in a road accident in a collision between the taxi in which she was travelling and a car coming from the opposite direction. Negligence had been admitted by the driver of the taxi. As a result of the said accident, the plaintiff suffered severe injuries. On admission to hospital, an emergency tracheotomy was done to save her life. She sustained a fracture of the left frontal bone of the skull with extensive cerebral contusion. She was in a coma for two months. When she regained consciousness two months later, she was almost totally blind. She regained her sight a year later. The plaintiff suffered from post traumatic dementia which resulted from severe brain damage. The condition is permanent and irreversible. The plaintiff suffered from complete loss of memory. She was disorientated to time, places and people. She also suffered from nominal aphasia, a form of speech defect characterized by inability to name objects. She suffered from a very serious disorder of her emotional faculties and was subjected to sudden outbursts of unprovoked aggression. Because of her unstable emotional behaviour, she had to be kept in her room every time her husband went to work. The plaintiff was also dependent on others to take care of her personal hygiene.

Held: the plaintiff was awarded RM100,000 for pain and suffering and loss of amenities; RM22,400 for the value of the services that the mother-in-law had rendered gratuitously and RM29,904 for the value of future services; RM12,200 for loss of earnings and RM14,952 for future loss of earnings. Per Chan J: 'Awards tend to increase in value in recent years because of the fall in the value of money. Damages in Òsevere brain damageÓ cases and damages in ÒparalysisÓ cases are comparable so that we may look at such cases in order to arrive at a conventional comparable figure. The highest awards in ÒparalysisÓ cases in this country were RM70,000 in 1966 and RM80,000 in 1970 and these awards have remained unchanged to this day. Such awards could not be the same today in monetary terms. Today's award has to be one which represents a comparable amount in current money values at the time when the award is made.'

Liong Thoo v Sawiyah & Ors [1982] 1 MLJ 286 High Court, Ipoh (Chan J).

The second plaintiff suffered severe brain damage by reason of which she underwent gross intellectual deterioration and personality changes. The second plaintiff also suffered a fracture of the right collar bone. At the time of the accident, the second plaintiff was 21 years old and a mother of two children. She was working as a production operator in a factory. According to the plaintiffs, the accident was caused entirely by the negligence of the defendant who, on the other hand, claimed that the plaintiffs were responsible for their own misfortune or alternatively were respectively 35% and 20% contributorily negligent.

Held: (1) the defendant was entirely to be blamed for the accident; (2) Losses of CPF contributions would be allowed for actual and future earnings at official rates. Claims for domestic help (past and future) S$37,228; (3) interest on general damages of S$70,000 at 6% per annum and on the actual loss of earnings, the CPF contributions, and expenses for domestic help at 3% per annum; (4) damages were awarded as follows: Pain and suffering and loss of amenities (inclusive of clavicle fracture) S$70,000; Actual loss of earnings S$20,850; Loss of future earnings S$57,600;the first plaintiff is awarded S$500 damages for pain and suffering for his relatively minor injuries.

Teo Tio Khiang & Anor v Ooi Eng Teong [1987] 1 MLJ 198 High Court, Singapore (Lai Kew Chai J).

The plaintiff's father sued as the next friend of his three-year-old son ('the infant plaintiff') who was hit by a car driven by the first defendant and owned by the second defendant. It was not disputed that the weather was fine on the day in question, the road straight and visibility unobstructed for about 250m before the point of impact. The infant plaintiff suffered severe brain damage and epilepsy secondary to the head injury and was prognosed as being dependent on others for his basic needs for the rest of his life. According to the medical reports, he could feel pain but was unaware of his condition or that he was suffering. His life-span was also shortened as a result of his injuries. The infant plaintiff sued for pain and suffering and loss of amenities, cost of past and future nursing care and special damages.

Held, awarding damages to the plaintiff: (1) the first defendant used that road daily and knew that the area was inhabited. Therefore, she should have put herself in a position where she could have halted the car in the event of an emergency. Furthermore, if she had kept a proper look out and had been travelling at a speed within her control, she would have been able to avoid knocking down the infant plaintiff. As such, she had failed to observe s 23 of the Highway Code. The first defendant also failed to warn the infant plaintiff of her presence either by sounding the horn or flashing the headlights of the car; (2) the irresistible conclusion was that the first defendant was negligent, and the second defendant, being the registered owner of the car, was therefore vicariously liable for her negligence. The liability of both defendants should be joint and several as prayed for in the statement of claim; (3) no contributory negligence or blame was attributable to the infant plaintiff. As he had been only two years and eleven months old at the time, no duty to take care of his own safety was imposed upon him. The defendants had also not proved that the infant plaintiff had shown a culpable want of care for his own safety; (4) in respect of damages for pain and suffering and loss of amenities, the sum of RM190,000 was awarded, bearing in mind that the fact of deprivation was taken as a substantial loss and in view of the current trend of awards for this head of damages. In assessing the damages, the court took into account the fact that the infant plaintiff could feel pain although unaware of his condition, the medical opinion that his physical condition would deteriorate and the fall of the value of money; (5) as for the cost of past nursing care, the court awarded the sum of RM260 per month for 12 months (ie the period for which the infant plaintiff's father had helpers working for him) and subsequently, RM300 per month until the date of judgment for services rendered by the infant plaintiff's mother in looking after him, taking into account the fact that she would still have had to take care of him even if he had not been injured. As for the cost of future nursing care, the sum of RM300 per month was awarded and, adopting a multiplier of 10, this amounted to RM36,000; (6) and RM20 for damaged clothing and shoes. The claims for a special bed, special food and nourishment, Chinese medium's fees, acupuncture and massage were not allowed. The plaintiff's failure to produce receipts for purchases was not fatal considering that they were village folk; (7) although the medical expenses in Singapore were incurred in February 1988, the sum was not due and payable prior to judgment. Therefore, the exchange rate should be taken at the date of judgment and not at the time of loss; (8) as for special damages, inter alia, RM2,100 was allowed for a wheelchair and reclining chairs; RM300 for transport charges to the hospital; RM520 for air fares to seek treatment in Singapore; S$7,764.10 for medical expenses incurred in Singapore;interest at the rate of 6%pa was awarded on the general damages for pain and suffering and loss of amenities from the date of service of writ to the date of judgment, and thereafter at the rate of 8%pa until satisfaction pursuant to O 42 r 12 of the Rules of the High Court 1980.

Wong Li Fatt William (an infant) v Haidawati bte Bolhen & Anor [1994] 2 MLJ 497 High Court, Kuching (Richard Malanum J).

This was an appeal by the defendant against the assessment of the senior assistant registrar with regard to damages for pain and suffering, loss of future earnings and future cost of maid. On 20 February 1988, the first plaintiff (an infant) was travelling as a passenger in motor taxi No SHA 3558M driven by the defendant along the central carriageway of Nicoll Highway in the direction of Guillemard Road, when the said motor taxi went over the road divider onto the wrong side of the said highway and collided with an oncoming motor taxi No SH 7799R. The defendant conceded liability and an interlocutory judgment was entered against him with damages to be assessed. Following a hearing on damages before a senior assistant registrar, it was ordered, inter alia, that the defendant should pay to the first plaintiff a total sum of S$691,699.85 as damages, together with interest accruing on S$181,163.85 at the rate of 6% pa from the date of the writ, up to the date of the order.

Held, allowing the appeal in part: (1) a judge's decision on quantum of damages should not be disturbed unless (i) the judge had applied a wrong principle of law or (ii) the amount awarded was either so inordinately low or so inordinately high that it had to be a wholly erroneous estimate of the damage; (2) considering the precedents, the appropriate compensation payable to the first plaintiff for the head injury and the consequential disabilities that resulted therefrom, and taking into account inflation, should not exceed S$70,000; (3) there was great difficulty in accepting that in the case of a person who had never worked, the national average wage should be used for purposes of working out his loss of future earnings. The amount to be taken in computing loss of future earnings had to be that of a young worker and not someone who had worked for some years. In considering loss of future income, the court had to have regard to whether the plaintiff would overcome the psychological problems; (4) on the evidence, it would be wrong to award the first plaintiff a sum as if she would forever be in need of a full-time maid. She did not need a full-time maid even at the time of trial. Therefore, damages would be awarded to obtain a local help just to keep an eye on her and such help should continue for a period of five years.

Peh Diana & Anor v Tan Miang Lee [1991] 3 MLJ 375 High Court, Singapore (Chao Hick Tin J).

In this case, the appellant, Yang Salbiah, was run down by a bus and became vegetative. The learned trial judge awarded a global sum of RM75,000 as general damages with the 'usual' order as to interest and costs. The appellant appealed against the quantum of damages.

Held: (1) the trend of modern authorities is not towards awards of global sums but towards awards under particular heads of claim; (2) (e) cost of future care and (f) loss of future earnings; (3) and (d) RM33,816 for loss of future earnings; (4) the total damages should come to RM129,178 and clearly, the global sum awarded by the learned trial judge was so inadequate that the appellate court must substitute its own assessment for that of the trial judge; (5) in a case of total or near total incapacity, the heads of claim for damages are (a) pain and suffering and loss of amenities; (b) out of pocket expenses up to date of trial; (c) cost of care to date of judgment with interest; (d) loss of earnings to date of judgment with interest;in this case, the proper damages to be awarded under the various heads would appear to be (a) RM70,000 for pain and suffering and loss of amenities with interest; (b) RM500 for out of pocket expenses; (c) RM25,362 for cost of future care;on principle there should be no interest on an award for future loss of earning capacity.

Yang Salbiah & Anor v Jamil bin Harun [1981] 1 MLJ 292 Federal Court, Kuala Lumpur (Raja Azlan Shah CJ (Malaya).

This was an appeal from the decision of the Federal Court reported in [1981] 1 MLJ 292. The second respondent, Yang Salbiah, had been run down by a bus and as a result of the accident suffered very serious brain injury which turned her into a subnormal child with permanent mental and physical disabilities. The trial judge ordered a global sum of RM75,000 as general damages with the 'usual' interest of 6% on the general damages to run from the date of the accident. On appeal, the Federal Court rejected the trial judge's view that the trend of local authority was towards global award in cases of this sort. The Federal Court held that it was necessary for the court in a personal injury case where there is an element of future loss or damage to itemize its award, that is, to make a separate assessment under each head of loss or damage. The Federal Court itemized the damages under the headings as follows: (a) Pain, suffering and loss of amenities RM70,000 (b) Loss of future earnings RM33,816 (c) Cost of future care RM25,362RM129,178. They awarded interest under head (a), but not under heads (b) and (c). The appellant appealed. Counsel also submitted: (i) as a matter of Malaysian law, it was wrong to itemize an award of damages in personal injury cases; (ii) in the case of an infant plaintiff, loss of future earnings was too speculative to qualify for an award of damages and that such a loss should not, in Malaysian law, be accepted as recoverable; alternatively, that in the present case, there was no evidence of any such loss; (iii) there was no acceptable evidence of any need for nursing services or any paid care in the future.

Held: (1) though no statutory requirement exists in Malaysia for the itemization of damages in personal injury cases, the written law certainly does not forbid or prevent differentiation in the period or rate of interest as appropriate between the different heads of loss or damage suffered by a plaintiff. Nor does the written law forbid the courts from adopting the itemization process in assessing damages. The courts of Malaysia are free to take their own course and the Federal Court was therefore not prevented by the written law of Malaysia from using the itemization process in the assessment of damages for personal injury; (2) in upholding the right of the second respondent to damages for loss of future earnings' capacity, the Federal Court accepted and applied the correct principles. If damages were to be a fair and adequate compensation for a plaintiff who is expected to live for many years during which time he will be unemployed or his earning capacity substantially reduced, it will be necessary to assess his future loss, difficult though the task may be in cases where the victim is a child. Though difficult, the court must do the best it can upon the evidence; (3) the submission that the Federal Court was wrong to allow loss of future earnings into their assessment of the plaintiff's damages must be rejected. In the circumstances of this case, the Federal Court had reached a reasonable estimate of the loss; (4) the findings of the trial court in this case, fully justified as they were by medical evidence, strongly support the inference drawn by the Federal Court that there would be continuing need for care including nursing services. The Federal Court using its local knowledge estimated a reasonable figure in terms of current money; they applied an appropriate multiplier and gave effect to all necessary discounts.

Jamil bin Harun v Yang Kamsiah & Anor [1984] 1 MLJ 217 Privy Council Appeal from Malaysia (Lord Keith of Kinkel, Lord Edmund-Davies, Lord Scarman, Lord Roskill and Lord Templeman).

In 1982, a collision occurred between two motor cycles, one ridden by the plaintiff/respondent ('the plaintiff') and the other by the first defendant/appellant, who was the second defendant/appellant's servant ('the defendants'). The main injury suffered by the plaintiff was a fracture of the skull and parietal bones resulting in brain damage, and she was left with permanent severe neurological disabilities. At the time of the accident, the plaintiff was a 23-year-old unmarried woman, and had been employed as a clerk in a company for RM350 per month. The plaintiff sought damages for personal injuries from the High Court which found the defendants 60% liable. The plaintiff was awarded, inter alia, RM100,000 for pain and suffering and loss of amenities under general damages, RM41,650 for pre-trial loss of earnings, RM63,000 for future loss of earnings, RM39,900 for pre-trial nursing care, and RM61,500.75 for post-trial nursing care to be apportioned accordingly. The defendants appealed and the plaintiff cross-appealed. For the plaintiff, it was contended that the trial judge had underestimated the general damages and should have assessed physical and intellectual impairments which arose from the same brain injury, separately. Then, the two amounts should be aggregated, and a reduction in respect of overlapping be made. In respect of the plaintiff's future loss of earnings, the trial judge obtained RM63,000 in a direct multiplication of the multiplier of 15 years and the loss of earnings at RM350 per month. The annuity tables were not used in the computation. The plaintiff argued that the trial judge erred in failing to take into account the probability that the plaintiff would get increments in years to come. On the other hand, it was contended for the defendants that the multiplier of 15 years should have been reduced to allow for the fact that the plaintiff was at a marriageable age and that it was probable that she would have ceased to work upon her marriage. The defendant further argued that the award for nursing care was too high as the plaintiff did not require all the services a maid could provide.

Held, upholding the trial judge's award for pain and suffering and loss of amenities, increasing the award for pre-trial loss of earnings to RM47,600, and retaining the awards of future loss of earnings and nursing care: (1) where disabilities stem from one injury, the extent of overlap would be such that there would be a merger and hence, allowance for overlapping in computing the award for pain and suffering and loss of amenities was not good enough. In this case, all the disabilities suffered by the plaintiff stemmed from one injury, ie the brain damage, and thus, the judge was right in making a lump sum award instead of making separate assessments for physical and intellectual disabilities, and to allow for overlap thereafter; (2) it was trite that the appellate court should only interfere with the decision of the trial court if it was satisfied that the judge has acted on a wrong principle of law or has made a wholly erroneous estimate of the damage suffered. While the RM100,000 awarded under general damages was on the low side, it was not so manifestly low that this court should increase the amount; (3) the court should take into account the plaintiff's prospects of future increment as the cause of action arose in this case in 1982, ie before the coming into force of the new s 28A(2)(c)(ii) of the Civil Law Act 1956 on 1 October 1984. The judge was therefore wrong in not giving an allowance for future increments; (4) the plaintiff's pre-trial loss of earnings would be increased to RM47,600, after taking into account the allowance for increments. In computing the plaintiff's loss of future earnings, RM500 would be used as her loss of earnings for each month, from the date of trial for the period of the 15 years. In this case, since a lump sum was to be awarded at the judgment date, annuity tables had to be used to determine the amount that should be paid, which if invested to give a return of 5%pa, would provide RM500 per month to the plaintiff for 15 years. The lump sum that should be awarded was approximately RM63,000, which coincidentally was the amount awarded by the trial judge; (5) unlike the English practice of taking into account both contingencies and advance payment in selecting the appropriate multiplier, the Malaysian practice had always been that the only factor taken into consideration in reducing the actual working years was contingencies. The reduction for the lump sum payment factor was met by the use of the annuity tables. It followed that there was no double deduction in Malaysia; (6) no allowance was made for the fact that it was probable that the plaintiff would cease gainful employment after her marriage, as to do so would be inconsistent with the realities of modern living. Also, the RM350 per month awarded by the trial judge for care and nursing was about right, as the plaintiff needed the assistance of a full time domestic maid. The fact that the plaintiff was looked after by her parents at home was irrelevant.

Tan Cheong Poh & Anor v Teoh Ah Keow [1995] 3 MLJ 89 Court of Appeal, Kuala Lumpur (VC George, Abu Mansor JJCA and KC Vohrah J).

The second respondent, a schoolgirl aged seven years, was involved in an accident whilst being driven in her father's car with a bus driven by the first appellant. The accident resulted in brain damage. Liability was admitted and the appeal was only on the quantum of damages. It was argued that: (i) special damages for air passages to London and back for the whole family should be reduced; (ii) the sum of RM65,000 awarded for the expenses of special schooling was far too much.

Held: (1) in the special circumstances of this case, the special damages awarded for air passages for the family should remain unaltered; (2) the sum awarded for the expenses of special schooling was justified.

Mohamed Ibrahim & Anor v Christopher Piff & Anor [1981] 1 MLJ 221 Federal Court, Kuala Lumpur (Suffian LP, Wan Suleiman and Chang Min Tat FJJ).

The plaintiff, aged 33 and employed in the police force at a salary of S$175 per month, was injured in a road accident. He sustained injuries including a haematoma of the left parietal region of the head. He had internal pains on the right side of the body which had become externally numb. The medical evidence confirmed that (i) the anaesthesia on his right side was due to hysterical or self-induced hypnotic state (with probably a slight organic base); (ii) either the spinal cord or the brain had been affected and there was undoubted brain injury; (iii) stress of litigation had caused severe anxiety neurosis which had retarded his mental faculties; (iv) the plaintiff's personality had not been any better even before the accident; (v) although the plaintiff's condition would improve to a certain extent, it was a matter for speculation whether he would improve to any great extent; (vi) the plaintiff's lack of sexual vigour was due more to mental than to physical causes which may or may not be related to the accident. It was also disclosed in evidence that the police authorities had been charitable in keeping him in the police force after the accident.

Held: although the plaintiff had sustained some injury to his brain or spinal cord, there was little evidence of any marked change of personality or loss of earnings as the plaintiff was still employed by the police force and was in receipt of his usual salary. General damages assessed at S$12,000.

Abdullah v Gladwin [1964] MLJ 35 High Court, Singapore (Winslow J).

The first plaintiff, a nine-year-old boy at the time of the accident, brought this action by his mother, the second plaintiff, against the defendant for damages for personal injuries sustained by the plaintiff as a result of the negligent driving of a motor car by the defendant on 4 August 1979. The plaintiff, while crossing a road, was knocked down by the defendant's car. The plaintiff suffered severe brain damage. After the accident, he was admitted to Alexandra Hospital and later transferred to Tan Tock Seng Hospital. He was unconscious for three days, and was unable to speak for one week. He sustained a fracture of the right maxilla and a laceration of the right cheek. A right periorbital hematoma was noted as well as a swelling over the right maxillary region. He was discharged from hospital on 29 August 1979. Dr Michael HL Yap, a neurologist, was of the opinion that after a lapse of about five years since the accident, the first plaintiff's improvement, if any, would not be significant. Dr Nei I-Ping, a consultant neurologist, concluded that the first plaintiff had deteriorated in his school performance owing to the severity of head injury. His improvement was likely to be minimal.

Held: (1) the defendant was solely to blame for the accident; (2) S$48,000 was awarded for loss of future earnings. These sums were awarded together and each was slightly lower than otherwise assessed in isolation; (3) special damages at S$200 were agreed and awarded to the second plaintiff; (4) a total sum of S$86,500 for general damages was awarded to the first plaintiff: S$35,000 was awarded for the permanent brain injury and S$3,500 for the fractured maxilla and laceration of the right cheek;costs to be paid by the defendant.

Tham Yew Heng & Anor v Chong Toh Cheng [1985] 1 MLJ 408 High Court, Singapore (Thean J).

The first respondent was involved in a collision with a motor car driven by the appellant. At the time of the accident, the first respondent was riding a motor cycle and was not wearing a crash helmet, and as a result, he suffered deepseated brain damage. The learned trial judge held that the appellant was negligent and awarded S$115,000 as damages. On appeal it was argued: the quantum of damages awarded to the first respondent represented a wholly erroneous estimate of the amount which ought to have been awarded to him.

Held, dismissing the appeal: having regard to the circumstances of the case, the trial judge's estimate of loss of prospective earning was not wholly erroneous and therefore the global award of S$115,000 was also not wholly erroneous.

Wong Ah Gan v Chan Swei Yueh & Anor [1970] 2 MLJ 25 Court of Appeal, Singapore (Wee Chong Jin CJ (Singapore).

The first and second plaintiffs in this case were walking on the pavement in Beach Road, Singapore, on 19 June 1977 when they were knocked down by a car driven by the defendant. Both the said plaintiffs were injured and they together with the parents of the first plaintiff, commenced action against the defendant for damages. Liability was admitted by the defendant in respect of the claims of the first and second plaintiffs. The defendant denied liability as regards the claims of the parents of the first plaintiff. The first plaintiff, Lai, was 24 years old and a fourth year medical student at the University of Singapore at the time of the accident. Lai was from Hong Kong on a Singapore government scholarship. As a result of the accident, he suffered extensive brain injuries, crushing all his hopes of being a doctor. He was discharged from hospital in April 1978 and resumed medical studies for some time. In January 1980, the Medical Board convened for his case and was of the view that it was most probable that he would never be able to complete the medical course as a result of the injuries sustained by him in the said accident. In May 1980, Lai, on the recommendation of the Board, took up radiography. Four months later he had to abandon it as he could make no headway. Lai was subsequently not gainfully employed. The third plaintiff, Tan, was Lai's mother. On being told of the said accident, she flew from Hong Kong to Singapore to be with her son. She remained with him ever since his discharge from the hospital. The High Court held that the reasonable and fair way to ascertain his loss of future earnings would be a sum representing the mean between the maximum and minimum salaries in the Hong Kong medical service. That would be in the region of HK$10,000 per month equivalent to SS$5,000 per month. Based on a multiplier of 15, the figure for loss of future earnings arrived at SS$622,800. The court also considered his loss of pension rights. The formula is: Highest salary drawn (HK$12,830) ´ months of service (180) ´ 12/60 = HK$46,188 = S$23,094. Two years' pension would be HK$46,188 rounded to HK$46,000. S$55,000 was awarded as damages for pain and suffering and loss of amenities of life. The plaintiffs' counsel also applied for interest on the award for pain and suffering and loss of amenities of life from the date of the service of the writ.

Held: (1) in Singapore, the power of the court to award interest on debts and damages is to be found in s 9 of the Civil Law Act (Cap 30, 1970 Ed). It is a discretionary power; (2) in the present case, interest was not allowed based on the principle that interest should not be allowed when damages are awarded in running-down cases; (3) in the normal run of cases, a third party will have no direct remedy against the wrongdoer. In the present case, there was no medical evidence that there was a need for the companionship of the mother for the rehabilitation of Lai. The claim for loss by the third and fourth plaintiffs was therefore not allowed; (4) the first plaintiff was awarded S$727,514 and costs and the second plaintiff was awarded S$8,500 and costs.

Lai Chi Kay & Ors v Lee Kuo Shin [1981] 2 MLJ 167 High Court, Singapore (Chua J).

The plaintiff sustained injuries in a motor accident. Liability for negligence was admitted by the defendant. The plaintiff received serious injuries to his brain which had caused a 50% deficiency, rendering him unable to do a number of things that a normal man could do, including difficulty in speech and in chewing food; he also suffered from a partial loss of taste, headaches, poor memory, lack of concentration and loss of his former personality. He had also suffered pain and permanent injuries. He was a university graduate but with the unfortunate accident that befell him, not only had he lost the opportunity of improving his earning power as an executive, but it also affected his personality rendering him fit only perhaps to perform the work of an ordinary clerk.

Held: in the circumstances, the general damages to be awarded to the plaintiff should be RM41,384 made up of RM3,000 for pain and suffering, RM15,384 for loss of future earnings, RM15,000 for brain injury and the effects thereof, RM5,000 for fracture of the mandible and the effects thereof and RM3,000 for facial injuries.

Khoo See Moi v Tay Teik Chang [1970] 2 MLJ 249 High Court, Seremban (Syed Agil Barakbah J).

In this case the respondent was injured in an accident between the motor cycle ridden by him and a motor car driven by the appellant. He sued the appellant for general and special damages. Liability was agreed between the parties in the ratio of 90% against the appellant and 10% against the respondent. The respondent was a trained school teacher and was undergoing a course in social science at University Science Malaysia, Penang. As a result of the accident the appellant sustained a severe brain injury and fractures of the right thigh bone and jaw bone. The learned trial judge made an award of damages as follows: (A) General damages (i) Pain and suffering and loss of amenities RM80,000 (ii) Post-trial loss of earnings RM231,000 (B) Special damages (i) Agreed damages for repair of motorcycle and transport to and from hospitals RM2,300 (ii) Pre-trial loss of earnings RM65,945 Total = RM379,245 (C) Interest (i) Interest at 6% on RM80,000 awarded for pain and suffering and loss of amenities from the date of service of the writ to the date of payment; and (ii) interest at 3% on the total of RM2,300 and RM65,945 awarded as special damages from the date of accident to the date of payment.'

Held: (1) the judicial warnings against the size of the award in some of the cases cannot be construed as laying down a new principle for assessing damages, but are merely intended to serve as a caution, lest the court might be moved by sympathy for an injured person to giving a higher award than would have been otherwise justified by evidence. The proper approach is therefore to avoid conjecturing into the unchartered sphere of public policy and for the appeal court to examine the award to see whether its assessment was perverse or whether it was arrived at on an incorrect principle; (2) in this case, there was no basis for the submission of the respondent that the assessment for pain and suffering and loss of amenities was low as he did not produce evidence to show that he required future care or that his life expectancy was in any way affected or that his prospect for marriage was diminished, as submitted by him; (3) in view of the nature of the injuries to the brain and to the right leg of the respondent, the award of RM80,000 for pain and suffering and loss of amenities could not be said to be excessive; (4) the finding that the respondent's pre-trial loss of earning amounted to RM65,945 was correct in principle but his income tax liability should be taken into consideration. The sum which could be awarded as a reasonable estimate of the respondent's loss of income is therefore (RM65,945 RM9,892) = RM56,053. The award of the sum in addition to the agreed sum of RM2,300 as special damages was not wrong in principle because the damages under this heading was in fact pleaded although it was incorrectly pleaded as general damages; (5) for the assessment of future earnings, the method of multiplicand times multiplier was an appropriate method and should have been adopted. On this basis, the sum that should be awarded should be RM93,587.42; (6) the court has a discretion to grant interest on the sums awarded as damages and in this case the award of interest by the learned trial judge should be upheld.

Lim Eng Kay v Jaafar bin Mohamed Said [1982] 2 MLJ 156 Federal Court, Ipoh (Raja Azlan Shah CJ (Malaya).

The plaintiff, a factory operator aged 25 years old met with an accident, as a result of which she suffered the following injuries: brain injury, epilepsy and residuals. The court found that the accident was caused solely by the negligence of the plaintiff. However, the court dealt with the question of the quantum for 'completeness as much argument had been addressed to the court by both parties'.

Held, dismissing the plaintiff's case: (1) the appropriate multiplicand was S$2 per hour and the multiplier was ten years. A multiplier of ten years directly applied to S$5,720 (which includes employer's CPF on pay at 25% amounting to S$1,144) per annum gives a total of S$57,200; (2) the period of loss of pay should be 3[1/2] years, from 18 February 1980 to 18 August 1983. The total loss of earnings would be S$12,697.03 and the total loss of employer's CPF contributions on loss of earnings would be S$2,669.52, making a total loss of S$15,366.55; (3) as to future medication, the court would award the sum of S$5,000; (4) interest should not be allowed when damages are awarded in running-down cases.

Tominam bte Tukimin v Toh Kai Chup [1985] 2 MLJ 345 High Court, Singapore (Chua J).

[Annotation: Affirmed on appeal. See [1989] 2 MLJ 257.]

In this case, the plaintiff, a girl aged nine years, suffered a severe brain injury as the result of being struck down by a lorry at a pedestrian crossing. The defendant admitted liability and the learned trial judge assessed general damages at S$40,000. The plaintiff appealed.

Held: an appellate court should be reluctant to disturb a finding of this nature, but in this case as no consideration was given to the question of the loss of future earnings, namely that for all practical purposes the girl was unemployable and her chances of marriage were virtually non-existent and not merely affected, a sum of S$60,000 general damages would be appropriate.

Tan Chwee Lian v Lee Ban Soon [1963] MLJ 149 Court of Appeal, Singapore (Rose CJ, Buttrose and Wee Chong Jin JJ).

The plaintiff, a trishaw rider, was crossing a junction when there was a collision between a motor cycle driven by the second defendant and a motor car driven by the third defendant at about the centre of the junction. The result was that the second defendant lost control of his motor cycle which proceeded to collide with the plaintiff's trishaw, overturning the trishaw and throwing the plaintiff to the ground. As a result, the plaintiff suffered a fracture of the parietal bone on the right, and a craniotomy carried out on the plaintiff's head showed that there was damage to the middle meningeal artery and there was laceration of the dura mater and brain tissue. The effect of the accident was that the plaintiff could not concentrate on what he was doing and was found to be of unsound mind and incapable of managing himself and his affairs.

Held: in the circumstances, the appropriate award under general damages should be RM37,600 (RM12,600 for loss of earnings and RM25,000 for loss of amenities).

Tan Kheng Kuan v Lim Chen Teik & Ors [1965] 1 MLJ 116 High Court, Penang (Hepworth J).

In this case, the respondent was injured in a road accident and suffered minimal brain damage. He was awarded damages of RM70,000 for pain and suffering and loss of amenities of life, RM112,722.80 for loss of future earnings before retirement and RM60,908 for loss of future earnings after retirement. The appellant appealed against the quantum of damages.

Held: (1) although the award for pain and suffering and loss of amenities of life was on the higher side, it was not shown that the learned judge had wrongly used his discretion in arriving at the figure and therefore the award would be confirmed; (2) the assessment of future earnings by the learned judge which was based on the difference between the respondent's present salary and what he would get as a superscale G officer, was untenable as it was contrary to the evidence and common experience and therefore the award could not be sustained; (3) the respondent was entitled to damages for loss of earnings after retirement and this would be assessed at RM31,172.23.

Kow Ah Dek & Anor v K Ratnasingam [1981] 2 MLJ 24 Federal Court, Kuala Lumpur (Suffian LP, Salleh Abas and Abdul Hamid FJJ).

The defendant was in breach of his statutory duty to take care and is liable for his negligence. The defendant is also liable in damages at common law. General damages of RM8,000 and special damages of RM160 awarded.

Liew Pong v Khiaw Fatt Rice Mill & Liew Thatt [1954] SCR 26 Supreme Court, Sarawak, North Borneo and Brunei

Tan Chye Choo & Ors v Chong Kew Moi [1966] 2 MLJ 4 Federal Court, Johore Bahru (Thomson LP, Ong Hock Thye FJ and Ismail Khan J).

See DAMAGES (PERSONAL INJURY OR DEATH), Vol 6, para 371.

This was an action for damages in respect of personal injuries sustained by the plaintiff when a motor cycle he was riding came in collision with a motor car belonging to the defendants and driven at that time by their servant. The learned trial judge found that there was no negligence on the part of the defendants and dismissed the suit. One of the submissions made on behalf of the plaintiff was that the defendants' driver was wrong in crossing from one lane to the other through the gap in the kerb and that he should have driven right up to the end of the kerb and 'U' turned there to get to the other side of the road.

Held: even if what the defendants' driver did was a breach of a regulation, such contravention by him was immaterial in default of any negligence being the cause of the accident.

Woo Peng Chong v Malayan Tobacco Distributors Ltd [1955] MLJ 178 High Court, Kuala Lumpur (Buhagiar J).

The first respondent, a dental surgery assistant, was injured when the door of an autoclave burst open throwing out surgical instruments and boiling water upon her resulting in her sustaining severe burns. It was alleged that the appellants were negligent in failing to provide a safe and proper place of work and in failing to take precautionary measures to prevent the accident. The respondents also alleged breach of statutory duty under the Factories and Machineries Act 1967 (Act 139). The second respondent alleged that after the accident he had to do all the household work including looking after the two children. Both respondents claimed general and special damages. The learned judge gave judgment for the respondents and awarded damages as follows (a) in respect of the first respondent: (i) RM80,000 as general damages with interest at 8%; (ii) RM46,152 as cost of plastic surgery and RM10,500 as cost of psychiatric therapy at a private clinic (iii) RM20,000 for loss of earning capacity and (iv) agreed special damages; (b) in respect of the second respondent: (i) RM10,000 as general damages; (ii) loss of two weeks' wages and payment to nephew to look after children. The appellants appealed against the awards.

Held: (1) the appeal against the general damages in respect of the first respondent is dismissed. In the special circumstances of the case, the award should not be disturbed, although it would appear to be a bit on the generous side; (2) the awards in respect of plastic surgery and psychiatric therapy should be disallowed as the treatment is available in any government hospital and they should be regarded as absorbed in the award for general damages; (3) there is no evidence that the first respondent would lose her job as a dental surgery assistant and therefore the award for loss of earning capacity should be quashed; (4) the general damages awarded to the second respondent should not be interfered with looking at the injuries sustained and the fact that the husband has to do most of the householdwork is not denied; (5) the appeal on the loss of two weeks' wages and the payment to the nephew to look after the children should be allowed as they are special damages but not proved.

Pengarah Institut Penyelidikan Perubatan & Anor v Inthra Devi & Anor [1988] 1 MLJ 19 Supreme Court, Kuala Lumpur (Mohamed Azmi, Hashim Yeop A Sani and Wan Hamzah SCJJ).

Takong Tabari v Government of Sarawak & Ors [1996] 5 MLJ 435 High Court, Miri (Richard Malanjum J).

See TORT, para 1560.

The plaintiff, a director of his two family companies, was severely injured when a collision between the first defendant's motor cycle and the second defendant's taxi caused the motor cycle to collide into the plaintiff. The plaintiff brought an action against both the defendants for damages for negligence. Before the trial, the parties agreed on a sum of special and general damages, leaving for trial only two issues, namely, liability and actual loss of earnings sustained by the plaintiff.

Held: (1) There was no dispute that either of the defendants or both of them were liable to the plaintiff who was an innocent bystander. On the evidence, both the defendants were negligent but the second defendant was negligent to a greater degree than the first defendant. The court therefore apportioned the blame as follows: two-thirds to the second defendant and one-third to the first defendant; (2) The plaintiff did not receive his salaries from the two companies during the period of disability as a matter of legal right, as there was no contractual obligation on the part of the companies to make such payments to him. No credit ought to be given for the amounts drawn by the plaintiff in assessing his loss of earnings. (3) A total amount of S$40,677.42 is to be awarded as actual loss of earnings sustained by the plaintiff.

Ong Jin Choon v Lim Hin Hock & Anor [1988] 3 MLJ 137 High Court, Singapore (Thean J).

This was a claim by the appellant for damages arising from an accident between two motor cycles. The two motor cycles were travelling in the same direction, the respondent travelling behind the appellant. The learned trial judge after hearing the evidence of both the plaintiff and the defendant found that they gave conflicting versions of the accident and she proceeded to seek assistance from the other silent evidence, that is, the pleadings, the sketch plan, damages to the vehicles and the police photographs to decide which of the two versions could be accepted as probably the true version. She held that the appellant was wholly to blame for the accident and absolved the respondent from any blame and accordingly dismissed the action. The parties agreed on special damages and future loss of earnings but the learned judge did not assess the quantum of general damages. The appellant appealed.

Held: the learned trial judge had failed to draw the proper inferences from the evidence available. In this case, the respondent could not be wholly absolved from blame and in the circumstances, the blame should be apportioned 75% as the appellant's share and 25% as the respondent's share.

Ong Kim Hai v Kusaini bin Surip [1984] 2 MLJ 285 Federal Court, Kuala Lumpur (Lee Hun Hoe CJ (Borneo).

This appeal arose from a claim for damages for personal injuries sustained by the respondent and said to have been caused by the negligence of the appellant in the driving of a motor vehicle on 23 April 1970. The trial court gave judgment for the respondent in the sum of S$76,624 and costs. The appeal was against the trial judge's finding that there was no contributory negligence on the part of the respondent.

Held: there was contributory negligence on the part of the respondent and he must bear his proper share of responsibility for the injury sustained by him. Having regard to all the circumstances of this case, the respondent's responsibility must be assessed at 40% and that of the appellant 60%. Accordingly the respondent was only entitled to recover S$45,974. The respondent must pay the appellant the costs of the appeal. Observations on (a) the duty of the driver of a motor vehicle which is following another motor vehicle; and (b) the concept of contributory negligence.

De Cotta v Tan Hock Lee [1972] 2 MLJ 173 Court of Appeal, Singapore (Chua, Choor Singh and Tan Ah Tah JJ).

The plaintiff was employed by a company to drive their lorry No JA 6566. The first defendant was the employee or servant of the second defendant, the Port of Singapore Authority ('PSA'). On 19 September 1978, the plaintiff was directed by his employers to deliver a lorry-load of plywood in bundles for storage pending shipment. The plaintiff's employers had booked a forklift with its driver from the PSA to unload the plywood at its premises. When the first defendant had unloaded three bundles from the lorry and had stacked them one on top of the other and after the forklift had moved back a little distance away from the stack consisting of the three bundles, the plaintiff walked up to place a piece of wood on the floor close to the stack to assist the first defendant to place a fourth bundle on the top of the three bundles of the stack. While he was placing the piece of wood on the floor in front of the stack the top bundle from the stack became unstable and tumbled down hitting the plaintiff on his right hand and arm, and the right leg and foot though he tried to move away from the falling bundle. As a result of this incident, the plaintiff suffered some injuries. The plaintiff claimed damages for injuries and loss against the first defendant for negligence and the PSA as the master of the first defendant. The plaintiff entered interlocutory judgment by default of appearance against the first defendant and contended that the PSA was liable as the first defendant's negligence was not in dispute. The PSA pleaded contributory negligence on the part of the plaintiff for putting a piece of wood at the bottom of the stack of plywood thereby causing it to fall. It also contended that as the forklift and the services of the first defendant were hired out to the plaintiff's employers or the exporter of the goods in question, the PSA is exempt from liability for the plaintiff's claim, having regard to reg 83(2) of the Singapore Port Regulations 1977.

Held: (1) reg 83(2) is not on similar terms as s 97B of the Port of Singapore Authority Act (Cap 173, 1970 Ed) as amended in 1971 and does not exclude the common law liability of the PSA for the plaintiff's claim, nor does it transfer any part of it onto the shoulders of the hirers of the services of the forklift and its driver, who are the employers of the plaintiff or the exporter of the goods in question; (2) reg 83(1) makes it quite clear that the liability of the PSA is not transferred to the hirer but the hirer is required thereunder to indemnify the PSA against any such claim like the one preferred by the plaintiff; (3) in the result, the PSA is liable to the plaintiff for 50% of the damages to be assessed, with costs.

Chai Chew Heng v Chung Su Chon & Anor [1965] 2 MLJ 277 High Court, Singapore (Kulasekaram J).

The appellant claimed against the respondents, his employers, damages for personal injuries suffered by him in the course of employment on 3 July 1975.

Held: (1) the appellant was also contributorily negligent and his share of the responsibility for the accident was one-half; (2) as the sum of S$85,000 was agreed for special and general damages on a 100% basis, the damages recoverable by the appellant would be S$42,500.

Mohamed Yeanikutty v Far East Truck Inc Manufacturing (Pte) Ltd [1984] 2 MLJ 91 Court of Appeal, Singapore (Kulasekaram, Lai Kew Chai and Abdul Wahab Ghows JJ).

This was an appeal against the decision of the Federal Court ([1969] 1 MLJ 59), reversing the decision of the High Court ([1968] 2 MLJ 66) in a claim for damages for personal injuries sustained in a collision between a taxi and a lorry.

Ramoo v Gan Soo Swee & Anor [1971] 1 MLJ 235 Privy Council Appeal from Singapore (Lord Hodson, Lord Wilberforce and Lord Cross of Chelsea).

The quantum of damages was agreed at RM35,000.

Held: (1) on the facts, it could not be said that the respondent was partly to blame for the injury he sustained; (2) the learned trial judge was correct in ordering interest to be paid from the date of service of the writ, as although the quantum was agreed, the amount was not paid into court.

Lim Kar Bee v Abdul Latif bin Ismail [1978] 1 MLJ 109 Federal Court, Kuala Lumpur (Gill CJ (Malaya).

The plaintiff in this case brought an action against the defendants for personal injuries caused by the negligence of the first defendant in driving a motor vehicle belonging to the second defendant. The quantum of damages had been agreed by both parties. The only dispute was as to the liability of the parties. The plaintiff gave evidence that at the time of the accident, he was riding his motor cycle along the stretch of River Valley Road, keeping close to the left edge of the road, about 3 or 4 ft from it. When riding in this manner at a speed of 24 to 25 mph a motor pick-up came behind and grazed against his right handle bar and he fell down and lost consciousness. The plaintiff admitted that he had been charged in the Traffic Court for careless riding of his motor cycle in connection with the said accident and he admitted he had pleaded guilty to the charge and had been fined. He explained the circumstances under which he pleaded guilty there and asserted he was never careless in the riding of his motor cycle. The police investigating officer found that the front mudguard of the plaintiff's motor cycle was slightly dented. It was bent or buckled inwards but the damage was only very slight. On the motor pick-up he found a slight dent at the rear panel towards the near-side above the tail light. After the hearing of the case, the learned trial judge dismissed the plaintiff's claim as he felt that the damages to the rear of the pick-up could not possibly fit in with the plaintiff's version of the accident. However on further consideration and especially as he had formed the opinion that the plaintiff was a truthful witness, he reversed his decision, as he found that the plaintiff's version was not altogether inconsistent and irreconcilable with the damage found on the motor pick-up.

Held, allowing the plaintiff's claim: the plaintiff had given a true account as best as he could of what happened in connection with the accident. The first defendant was entirely to blame for the accident.

Lim Yam Teck v Lim Swee Chiang & Anor [1979] 1 MLJ 162 High Court, Singapore (Kulasekaram J).

Held: although the plaintiff was substantially responsible for his injuries, there was a measure of contribution in negligence on the part of the bus driver. The plaintiff/appellant was 80% and the driver of the motor bus 20% to blame for the accident.

Loh Chee Keong v Syarikat Bee Huat Sdn Bhd & Anor [1982] 2 MLJ 184 High Court, Kuantan (George J).

The infant plaintiff at the time of accident ('the material time') was 2 years and 11 months old. He was knocked down by a car ('the car') owned by the second defendant and driven by the first defendant. It was contended for the infant plaintiff that he was knocked down by the first defendant due to her negligent driving. Both defendants denied the allegation. The issues before the court were (i) what was the probable speed of the car at the material time; and (ii) whether the first defendant was in reasonable control of the car while at the speed she was driving. Both PW1 and PW3, who were with the infant plaintiff at the material time, gave evidence that the first defen-dant was travelling very fast. PW2, the sergeant who drew the sketch plan, gave evidence as to the tyre-marks which measured up to 23.30 metres in length. The first defendant gave evidence that she was travelling at the speed of about 65 km per hour and that the infant plaintiff was about one metre in front of the car before he was knocked down. According to the first defendant, the infant plaintiff suddenly ran across the road and she applied her brakes when she saw the infant plaintiff. Also undisputed evidence had been adduced that the area was inhabited. As to the quantum of damages, three medical reports were tendered. As for the cost of nursing care for the past and the future, counsel for the defendants argued that the claim was put under the head of special damages and no evidence was adduced to support it. It was also his contention that the exchange rate should be at the time of loss.

Held, giving judgment for the plaintiffs: (1) the evidence of PW1 and PW2 that the car was travelling very fast would be the more probable account. On the balance of probabilities, the first defendant had to have been travelling at a speed of more than 65 km per hour at the material time; (2) the area being inhabited, the first defendant should have anticipated that she could be put on an emergency situation at any time while passing the area. She should have put herself in a position where she could halt the car in the event of such an emergency situation occurring. The first defendant also failed to take the necessary emergency precaution so as to be able to stop the car before knocking down the infant plaintiff, therefore breaching s 23 of the Highway Code to warn the boys of her presence either by sounding the horn or flashing the headlight of the car. On the balance of probabilities, therefore, she was not in reasonable control of the car while at the speed she was driving at the time; (3) given the condition of the road and if the defendant had been on a proper look out coupled with a speed which was within her control, then she would have been able to slow down so as to avoid knocking down the infant plaintiff. Therefore on the balance of probabilities, the first defendant would have seen the infant plaintiff at the earliest opportunity had she kept a proper look out; (4) for the tender age of the plaintiff, it was not reasonable to impose on him the duty to take care of his own safety. He could not be expected to judge the speed and the distance of the car at that time. Also the defendants had not proven that the infant plaintiff had shown a culpable want of care for his own safety. Therefore, no blame should be attributed to the infant plaintiff; (5) bearing in mind that it was the fact of deprivation which should be taken as a substantial loss and in view of the current trend of awards for this head of damages, the sum of RM190,000 should be sufficient and appropriate for the pain and suffering and loss of amenities which had befallen the infant plaintiff; (6) it would be expecting too much to require the plaintiff to produce receipts for the payment to the helpers or that the helpers should be called as witnesses. Thus a claim of RM260 for 12 months as from the date of discharge from hospital is allowed. Thereafter, the sum of RM300 per month is sufficient in view of the fact that the mother of the infant plaintiff would nevertheless still have to take care of him even if he had not been injured. In coming to that figure, the 'domestic element' should be excluded in order to avoid any risk of surplus payment instead of a fair and reasonable compensation for loss; (7) in other words, the cost of care having been assessed had to be met by an award calculated on an annuity basis. Thirdly, the correct approach should be, therefore, in the first place to assess damages without regard to the risk of future inflation unless it could be demonstrated that on the particular facts of a case, such an assessment would not result in a fair compensation; (8) RM300 should be sufficient, fair and reasonable for the cost of future care. As for the multiplier, considering the circumstances of this case, the figure 10 should be a fair one. In exercising the discretion, the following elements were taken into account, namely, the accelerated payment, the high probability that the infant plaintiff might not live a life span which he would have if he had not been injured and the availability of capital as well as income to meet the cost of care; (9) as for future cost of care, firstly, the issue of overlapping did not arise in this case as there was no claim for loss of future earnings. Secondly, the estimate of damages under this head had to proceed on the basis that resort will be had to capital as well as income to meet the expenditure;the relevant rate of exchange should be as at the date of judgment when the sum incurred can be said to be due and payable from the defendants.

Wong Chin Yong (as next friend of the Infant William Wong Li Fatt) v Haidawati bte Bolhen & Anor Suit No KG 36 of 1989 High Court, Kuching (Richard Malanjum J).

In an action which concluded on 6 November 1962 for damages for injuries sustained in an accident, counsel for both the plaintiff and the defendant agreed that in the assessment of damages, a pension received by the plaintiff as a result of the accident was not to be taken into account. The agreement was apparently reached in the light of the existing state of the law as declared in Payne v Railway Executive [1951] 2 All ER 910. On 20 November 1962, Payne's case was not followed by the English Court of Appeal in Browning v War Office [1962] 3 All ER 1089. The defendant appealed on the ground that by reason of the decision in Browning's case, the pension receivable by the plaintiff ought to be taken into consideration in reduction of the quantum of damages awarded to him.

Held: Payne's case was not a binding authority in Singapore and as no attempt was made to argue against its correctness, the point should not be allowed to be argued on appeal.

Pay Eng Kee v Ramasamy [1963] MLJ 177 Court of Appeal, Singapore (Wee Chong Jin CJ, Tan Ah Tah and Buttrose JJ).

The plaintiff was injured in a catastrophic road accident for which the defendant admitted liability. The judge made no deduction in the award of damages for payments made to the plaintiff pursuant to relevant UK legislation. Also, having assessed the multipliers for future cost of care and future loss of earnings, the judge increased those multipliers to take account of the incidence of higher rates of taxation likely to be attracted by interest on the capital sums of his award. The defendant appealed against the award directly to the House of Lords.

Held, reducing the award: (1) damages for negligence were intended to be purely compensatory. Where the damages were essentially financial in character, being the measure of the plaintiff's consequential loss of earnings or consequential expenses he had been put to, the basic rule was that it was the net consequential loss and expense which the court had to measure. If the plaintiff had, as a result of the injuries, enjoyed receipts that he would not otherwise have been entitled to, those receipts were to be set against the aggregate of the plaintiff's losses and expenses in arriving at the measure of his damages; (2) there were two exceptions to the basic rule that such receipts were to be set against the loss: insurance moneys under policies of insurance that the plaintiff had paid the premiums for and moneys received from the bounty or benevolence of third parties motivated by sympathy for his misfortune; (3) the statutory payments made to the plaintiff in this case were to be set against the aggregate loss and expense. They did not fall within the two exceptions to the basic rule; (4) the judge was also wrong to increase the multiplier to take into account increased tax. The award was reduced accordingly.

Hodgson v Trapp [1988] 3 All ER 870 House of Lords (Lords Mackay, Bridge, Brandon, Oliver and Goff).

The appellant, an Australian, was employed as a pilot by the defendant. While flying the defendant's aircraft, the aircraft developed engine trouble causing the appellant to make an emergency crash landing. The appellant consequently suffered, inter alia, a head injury. The defendant admitted 100% liability and the only issue was the quantum of damages. The appellant called X, a clinical psychologist, to give expert evidence as to the extent of his head injury. X testified that the appellant's neuro-psychological impairments were permanent. The defendant, however, adduced contrary medical evidence to show that the appellant merely suffered loss of memory. The appellant was unable to resume work as a pilot after the accident. The appellant had received RM300,000 from an insurance company under a general accident policy taken out by the defendant for the benefit of its employees under the terms of their employment contracts. The appellant was currently receiving financial assistance from the Social Security Department of Australia. The appellant did not work after his accident. Before the appellant became a commercial pilot, he was a mechanic. The High Court rejected X's evidence and accepted the evidence of the defendant's witnesses regarding the extent of the appellant's head injury. The High Court also held that three years after the accident, the appellant should have mitigated his damage as he was capable of finding a job. In assessing the amount of loss of future earnings, the High Court applied 55 years as the appellant's retiring age. The appellant was awarded RM301,250 in damages but the High Court deducted RM300,000 from that amount. [See [1991] 3 MLJ 124.] The appellant appealed to the Supreme Court, firstly, on the ground that the High Court should have accepted X's evidence. The appellant then argued that he could not mitigate his damage by finding a job because by doing so, he would be penalized by the Social Security Department of Australia. The appellant also alleged that the High Court, in assessing the quantum of damages, should have considered 65 years as the retiring age in Australia based on the 'Ansett Airlines of Australia (Pilots) Award 1989'. The appellant further contended that the defendant as the tortfeasor should take its victim as it finds him. The appellant finally argued that under s 28A(1)(a) of the Civil Law Act 1956, the insurance payment should not be deducted from the amount of damages awarded.

Held, allowing the appeal in part: (1) the trial judge's rejection of X's evidence was not completely unjustified because of X's failure to take into account the appellant's academic qualification when X carried out the IQ test on the appellant; (2) the principle that the tortfeasor had to take his victim as he found him, could not be extended to mean that in assessing damages the court was compelled to apply foreign law and norms. Such an approach would lead to absurdity and uncertainty if the award of damages were to fluctuate greatly depending on the social security law and level of affluence of the injured person's country. The trial judge was thus justified in holding that the appellant should have mitigated his damage; (3) the trial judge did not err in applying 55 years as the appellant's retiring age instead of 65 years because there was no evidence that the appellant had ever been employed by Ansett Airlines, nor was there evidence that the Ansett Airlines of Australia (Pilots) Award 1989 was applicable to all airlines in Australia. Foreign law on any particular topic was a question of fact which was to be proved by expert evidence; (4) the appellant had failed to prove that the trial judge's assessment of damages was wrong in principle and/or wholly unreasonable; (5) under the common law, the appellant's insurance cover was a service benefit contractually granted by the defendant in the event of the appellant's death or permanent disability which was analogous to a lump sum pension or gratuity. Such insurance payment was not analogous to wages and should not therefore be deducted from the award of damages; (6) the plain meaning of the words in s 28A(1)(a) of the 1956 Act had made it crystal clear that any sum paid in respect of personal injury which did not result in death under any contract of insurance shall not be taken into account in assessing damages.

Ward v Malaysian Airlines System Bhd [1991] 3 MLJ 317 Supreme Court, Malaysia (Hashim Yeop A Sani CJ (Malaya).

On 1 September 1984, along Thomson Road, K was involved in a motor accident with O. As a result of the accident, K suffered a fracture of the right femur, a fracture of the right acetabulum, an open fracture of the right tibia and a fracture of the right medial malleolus. As a result of his injuries K was unable to resume employment as a CISCO officer. After his retirement on 13 September 1985, K could only find sedentary work. On 27 August 1987, K died from mild recurrent myocardial infarcts. At the time of his death K was 51 years old. K's widow brought an action for damages.

Held, entering judgment for K's widow: (1) O was clearly negligent; (2) O had moved his pick-up out from in front of a row of vehicles, K could not have seen O emerging because his line of vision would have been blocked; (3) as O inched forward K's motor cycle hit the front bumper of O's pick-up and careered off and landed further up the road; (4) the duty of care was on O and on him alone, and O was therefore solely to blame for the collision; (5) K had led an active life prior to the accident. Following the accident he was compelled to a forced sedentary life style; (6) the enforced sedentary life style, the frustrations of an active man, had to have contributed in some small measure to the deterioration of his health, this head of damage would be best taken care of in the allowance that had to be made for accelerated death in awards for specific injuries; (7) the most severe injury suffered by K was the fractures of the femur and the acetabulum. As the two injuries were close together it would be proper to treat them together and S$26,000 would be awarded; (8) K undertook part-time work during his employment and though this would have been a breach of his terms of employment, it would not be contrary to public policy to countenance it; (9) it was a fact of life that lowly paid people would supplement their incomes by taking on part-time work, and unless that part time-work interfered with the regular employment, employers turned a blind eye.

Tan Yeow Hun & Anor v Ong Thong Seng Suit No 5318 of 1986 High Court, Singapore (Karthigesu J).

Marappan a/l Nallan Koundar & Anor v Siti Rahmah bte Ibrahim [1990] 1 CLJ 32 Supreme Court, Malaysia (Hashim Yeop A Sani CJ (Malaya).

See DAMAGES (PERSONAL INJURY OR DEATH), Vol 6, para 606.

The defendant appealed a decision of the Chief Justice awarding the plaintiff damages totalling B$748,610 following a motorcycle accident in which the plaintiff was seriously injured as a result of the defendant's negligence. The defendant was found to be wholly responsible for the accident. The defendant appealed the finding of liability on the grounds of the failure to admit expert evidence as to the speed at which the motorcycles were travelling at the time of the accident and the ground that the Chief Justice rejected from the outset the defendant's contention that the action was incompetent by virtue of the fact that the rider of the motorcycle was on the highway illegally, not having a valid licence or insurance. The defendant challenged the general damages claiming that the element of double compensation was overlooked in the sums awarded for domestic helper and future medical expenses. The plaintiff cross-appealed on the question of quantum.

Held, dismissing the appeal and allowing the cross-appeal to the extent indicated: (1) on the issue of the Chief Justice's refusal to admit expert evidence, it was difficult on the facts to see how he could have done otherwise. The application to admit the report was brought under O 25 rr 2 and 8 of the Rules of the High Court 1980. Pleadings were deemed to be closed with the filing of the defence on 24 August 1994 and O 25 r 8(1)(b) required any party seeking to rely on expert evidence to disclose the substance of the report within ten weeks of the close of pleadings. No attempt was made to introduce the report until the concluding stages of the trial and after the conclusion of the plaintiff's case, nearly eight months later. Order 25 r 8(2) did not assist as the report of expert evidence bearing on the accident should have been available or at least in the contemplation of the defendant at an earlier stage. Although the court had discretion under O 36 r 6(1) to admit the evidence even though it was not submitted prior to the summons for directions, the discretion was correctly exercised; (2) the maxim ex turpi causa non oritur actio, relied on in the defence together with s 106 of the Evidence Act sought to put the onus on the plaintiff to show that she was unaware of the fact that the rider of the motorcycle on which she was injured did not have a licence or insurance. Authority showed that even if she knew the motorcycle was being used illegally, it would not relieve the defendant of his duty of care to other road users. As a matter of policy, the courts had refused relief by way of damages to one of two participants in a criminal act who was injured in the course of a joint venture as the courts would decline to determine the standard of care to be exercised in such an undertaking. However, Jackson v Harrison (1977) 138 CLR 456 is on point there the driver of a motor vehicle was disqualified from driving, which fact was known to his passenger and the court noted this had no bearing on the standard of care expected from the driver; (3) in relation to the claim of double compensation in the award of a domestic helper and future medical expenses, there was bound to be overlap between the two heads. The claim that once the recommended medical treatment was completed, the plaintiff might not require the skilled domestic helper and could manage with a general domestic helper was not very realistic. These matters always involved an element of guesswork and there was no glaring inequity here so as to have the court interfere. The future medical treatment award followed the approach that it was reasonable to follow the more hopeful medical opinion that the plaintiff could improve with treatment. On the facts, it was not possible to disagree and the award could not be said to be one the Chief Justice was not entitled to make; (4) the challenge to the findings on quantum in the cross-appeal went to a sum disallowed for a trip for treatment and assessment, taken on medical advice, when future medical expenses were allowed. It did not seem logical to exclude the cost of the initial assessment while allowing the estimated cost of the future treatment when, without the initial assessment, the plaintiff might never have undergone treatment; (5) no allowance was made under the pre-trial loss of earning capacity head as the plaintiff had not worked prior to the accident. The plaintiff would have become employable 23 months before the trial commenced and those months must be taken as a period in which she could have been earning. The monthly salary of B$1200 plus one month's bonus was correct, reduced by the disability pension of B$150 which would have been paid. The claimed sum of B$27,930 was just and should be awarded; (6) post-trial loss of earning capacity allowed was B$190,080 with a multiplier of 16 applied to a 40-year period. This was achieved using the salary of B$249,600 from which the B$150 monthly disability pension total of B$72,000 was deducted and the 5% employer's contribution to the pension fund, totalling B$12,480 was added. Hodgson v Trapp [1989] AC 807 calculated the sum in another way the B$150 disability pension was subtracted from the multiplicand which amounted to B$218,400, to which the 5% total of B$10,920 was added. The total was B$229,320. This was the fairest and simplest method of calculating post-trial loss of earnings and the order should be varied accordingly.

Emran bin Haji Abdul Rahman v Keasberry Civil Appeal No 5 of 1995 Court of Appeal, Brunei (Fuad (President).

The plaintiff was involved in a collision between a motor car driven by the second defendant and a bicycle ridden by himself. He sustained various personal injuries resulting in the loss of vision in his right eye. Interlocutory judgment was given against the defendants and the only question to be decided was that of damages.

Held: in the circumstances of this case, the court would award RM20,000 for the loss of vision in the right eye and scars on his face, RM3,000 for pain and suffering and RM5,000 for loss of amenities and other disadvantages.

Wong Tin Vui v Patrick Midok & Anor [1975] 2 MLJ 260 High Court, Kota Kinabalu (Yusoff J).

The appellant, a boy under 14 years, sustained severe personal injuries as a result of an accident in which a government lorry driven by the first respondent knocked down the bicycle on which the boy was riding. The boy sustained fractures of his left cheek bone and left humerus and was blinded in the left eye. He was still suffering from constant weeping as a result of blockage of the lachrymal duct and had a permanent facial deformity. The trial judge found that the driver of the government lorry was negligent and awarded RM12,500 general damages. An appeal was lodged against the quantum of damages and the defendants cross-appealed against the whole of the decision. The cross-appeal in so far as it related to liability was dismissed. On the question of damages,

Held: (1) the damages awarded by the learned trial judge were too low and he had in particular overlooked the consideration of the increased vulnerability of a one-eyed man; (2) the court would not have been justified in interfering with the award of RM12,500 by the trial judge if the appellant had suffered no more than the loss of his eye but in view of the fact that he would continue suffering from watering of the eye and from his facial disfigurement and that he had an arm disablement for some two years, the damages should be increased to RM15,500.

Mohamed Ikhawan v Johar & Anor [1966] 1 MLJ 179 Federal Court, Kuala Lumpur (Thomson LP, Pike CJ (Borneo).

The plaintiff, an odd job labourer, was slashed by the defendant with a parang. He sustained serious injuries and lost the sight of his left eye. The plaintiff claimed that he earned an average of RM300 per month. Since his employment was of a casual nature, the parties agreed that RM150 per month would be a fair figure for the purpose of computing the sum to be awarded by way of loss of earnings and loss of earning capacity. The severity of the attack which was unprovoked led the court to award exemplary damages in the sum of RM15,000 following the case of Loudon v Ryder authority for the proposition that this was a proper case in which exemplary damages should be awarded. However, on reconsideration,

Held: (1) the case of Loudon v Ryder was overruled by Rookes v Barnard. The categories in which exemplary damages may be awarded are very narrow. The present case was not within the permitted categories and the award of RM15,000 for exemplary damages was clearly per incuriam; (2) the court revised its order and ordered the defendant to pay the plaintiff the sum of RM25,000 for general damages and RM10,000 for special damages and for loss of future earnings and earning capacity. The plaintiff was also awarded RM2,000 costs inclusive of disbursements.

Abdul Rahim bin Sian v Mesdi bin Warian [1985] 1 MLJ 442 High Court, Muar (Shankar J).

The plaintiff, a machineman employed by the defendants who were manufacturers of kitchen utensils, was engaged in trimming and fettling zinc plates when a zinc trimming flew into his right eye in consequence of which the sight of the eye was destroyed.

Held: taking into consideration the age of the plaintiff and other contingencies, general damages were assessed at RM12,000, less 30%, with costs.

Wong Soon San v Malayan United Industrial Co Ltd [1967] 1 MLJ 1 High Court, Kuala Lumpur (Raja Azlan Shah J).

Abdul Rahman bin Abdul Karim v Abdul Wahab bin Abdul Hamid [1996] 4 MLJ 623 High Court, Johor Bahru (Abdul Malik Ishak J).

See CIVIL PROCEDURE, para 331.

Appeal against the decision of the learned trial judge who awarded the respondent/plaintiff S$20,290 damages for personal injuries and consequent loss and expense was dismissed.

Keppel Bus Co Ltd v Sa'ad bin Ahmad [1972] 2 MLJ 121 Court of Appeal, Singapore (Wee Chong Jin CJ, Chua and Tan Ah Tah JJ).

While the plaintiff was milling rubber cuplumps on a machine, some substance which came off the roller and which he thought was stone or sand flew into his left eye. As a result he lost vision in his left eye. The plaintiff sued the first defendants who are the Nam Hong Rubber Factory for damages for the aforesaid injury. The second defendant was joined when the first defendants alleged in their defence that he, and not the first defendants, was the plaintiff's employer. The second defendant admitted that he had hired the plaintiff to work in the factory.

Held: the plaintiff was awarded RM15,000 damages for loss of sight in one eye and special damages of RM253.20 plus interest.

Mariasusai s/o Suminader v Nam Hong Trading Co Ltd & Anor [1975] 2 MLJ 271 High Court, Seremban (Wan Suleiman FJ).

The plaintiff sued the defendants for damages arising out of an injury to his right eye which was caused by his being struck by a splinter of stone as a result of blasting operations at a quarry in Malacca.

Held: general damages should be fixed at RM12,500 for the loss of one eye and a further RM6,000 for loss of earnings.

Shamsudin v Yap Choh Teh & Anor [1969] 1 MLJ 26 High Court, Malacca (Gill J).

The third plaintiff, a telephone operator aged 22, was hospitalized from 16 December 1961 to 21 January 1962. On admission, her condition and injuries were described as follows: patient was unconscious; bleeding from mouth and right ear; lacerated wound over the right side of scalp; fracture of the jaw. Medical examination showed no evidence of any disability resulting from the injuries. However, as a result of the accident her right eye had been thrust outward, the 'protosis right eye' was likely to be permanent. This condition of the eye had a disfiguring effect and her right eye hurt when facing strong sunlight. She claimed that the disfigurement of her eye had impaired her prospects of marriage.

Held: her case was one in which her prospects of marriage had been reduced. Taking into consideration all the circumstances of the case, general damages assessed at RM8,500.

Saniah & Ors v Abdul Hamid & Ors [1967] 2 MLJ 255 High Court, Ipoh (MacIntyre J).

The respondent Seema Balvantrai Goda is a young Indian girl who while on a visit to Singapore was injured by a taxi driven by the appellant. She was ten years old at the time of the accident and her right eye was so severely injured that she has lost the sight of of that eye. The learned trial judge found the appellant solely to blame and awarded a global sum of S$50,000 as general damages for the loss of sight in the right eye, pain and suffering and loss of her marriage prospects. On appeal,

Held, dismissing the appeal: (1) or unless the amount is so grossly excessive or insufficient as to lead to the conclusion that some error in principle must have taken place; (2) it is settled law that an appellate court should not interfere with an award of damages unless it is satisfied that the judge has acted on a wrong principle of law, or has misapprehended the facts, or has for these or other reasons made a wholly erroneous estimate of the damage suffered;even on the assumption that the trial judge erred in principle in any way or has acted on a wrong principle of law, the amount of the global award was not grossly excessive or a wholly errorneous estimate of the damage suffered by the respondent.

Ng Moon Leong v Seema Balvantrai Goda [1986] 2 MLJ 405 Court of Appeal, Singapore (Wee Chong Jin CJ, Sinnathuray and Thean JJ).

In this case, as a result of a collision between a motor van and a motor bus at the junction of Tanjong Katong Road and Dunman Road, the appellant who was riding a motor cycle was hauled down by the motor van. As a result of the accident, the appellant lost the sight in his eye. The learned judge found that the accident was due solely to the negligence of the driver of the motor van. He awarded S$84,000 (S$20,000 for the loss of future earnings; S$4,000 for fractures of the right zygomatic bone and of the base of the left fifth metacarpal bone; S$60,000 for loss of amenities) as damages and in doing so rejected the submission of the plaintiff that a sum should be awarded for a servant for the plaintiff. The plaintiff appealed and the appeal was only as to quantum of damages.

Held, dismissing the appeal: (1) in the circumstances, there was evidence to show that the appellant was at least partially unable to look after himself and was and would remain in need of some additional help; (2) however, having regard to the principles regarding overlapping and having regard to the quantum of the award, the amount assessed for the additional expenses likely to be incurred in providing the appellant with some extra help should not be added to the figure awarded, as the sum awarded represented a fair and reasonable compensation as a whole to the appellant for the injuries suffered by him.

Mohamed Repin v Lim Yu Kee [1969] 1 MLJ 64 Federal Court, Singapore (Wee Chong Jin CJ, Tan Ah Tah FJ and Winslow J).

The plaintiff had been injured while performing his work at the factory of the defendants and had been blinded as a result of the accident. He instructed solicitors who arranged a settlement of his claim. The plaintiff subsequently repudiated the settlement and brought an action for damages.

Held: (1) as a general rule, it is against public policy to allow settlements between solicitors on behalf of their respective clients in accident cases to be challenged with impunity; (2) a settlement like other contracts is voidable on specific grounds as, for example, undue influence, misrepresentation, fraud or mistake; (3) in this case, the plaintiff had not shown any such specific grounds and therefore the application of the defendants to strike out the writ of summons must be allowed.

Yap Chee Meng v Ajinomoto (Malaysia) Berhad [1978] 2 MLJ 249 High Court, Kuala Lumpur (Harun J).

In this case, liability was agreed at 50/50. The plaintiff suffered injuries which resulted in a permanent scar and a deformed left index finger and also had fractured ribs and bruises and lacerations.

Held: (1) in this case, it was quite justifiable to itemize the injuries received by the plaintiff separately in the same accident. The classification of the injuries would help in guiding the court to arrive at a reasonable quantum; (2) an award of RM3,000 would be reasonable for the scar, RM1,000 for the deformed left index finger and RM5,000 for the fractured ribs. Having regard to all the injuries sustained by the plaintiff and the guidelines offered by the classifications, a reasonable award for general damages would be RM10,000. On the basis of 50% liability the plaintiff's award would be RM5,000.

Chua Ow Pow v Lee Foong & Anor [1975] 1 MLJ 186 High Court, Raub (Hashim Yeop A Sani J).

The present claim involved only quantum on both general damages and loss of earnings as the defendants have admitted liability. As a result of the accident on 30 July 1977, the plaintiff suffered the following injuries: (1) facial injuries and fractures and loss of nine teeth. For the three fractures, the plaintiff was wired and immobilized with arch bars between his upper and lower jaws and they were removed before his discharge from hospital on 5 November 1977; (2) neck injuries which include lacerations to the laryngeal region, two fractures to the thyroid cartilage and cricold ring which prevented the plaintiff from speaking or vocalizing for three months following the accident; (3) compound fracture of the lower half of the left radius and ulna which required fixation of a pin and plate and which were subsequently removed when the fracture showed union. The plaintiff was hospitalized for three months and five days and underwent four operations. He was under constant medical attention for well over three years.

Held: the plaintiff should be awarded RM81,500 general damages (being RM26,000 for facial injuries, RM40,000 for neck injuries, RM15,000 for the fracture of the radius and ulna, RM500 for bruises) RM5,810 special damages (being RM2,700 for loss of earnings during the six months incapacity and agreed damages RM3,110.)

Aidi Abdullah v Ngooi Ku Siong [1984] 1 MLJ 139 High Court, Kuala Lumpur (Siti Norma Yaakob J).

The respondent was riding a motor cycle in Petaling Jaya when he was knocked down by a motor lorry driven by the first appellant as the servant of the second appellant, after the lorry had emerged from a minor road. The respondent sustained facial and neck injuries, a compound fracture and minor bruises. The learned trial judge made separate awards for the fractures and the facial injuries for which she awarded the sum of RM31,500 but deducted RM5,500 for overlapping and awarded RM26,000 as damages. With regard to the neck injuries, the learned trial judge applied her experience in adjudicating cases of this nature and awarded a global sum of RM40,000 as damages. The learned trial judge held that loss of future earnings and loss of earning capacity were items of special damages which the respondent was entitled to claim only if they were specifically pleaded. After going through the evidence, she held that the respondent was not entitled to loss of future earnings or loss of earning capacity. The appellants appealed on the ground that the award of the learned trial judge was manifestly excessive and not in keeping with the trend of authorities. The respondent cross-appealed against the refusal of the learned judge to award him damages for loss of future earnings and/or loss of earning capacity.

Held: (1) the fractures and the other connected injuries in this case should be assessed together and not separately and added up at the end because they are not separate heads of compensation. Although the principle applied by the learned judge was incorrect, the award of RM26,000 under this head was in no way manifestly excessive or unreasonable; (2) with regard to the neck injuries, it was not proper for the learned judge to discard the authorities and use her own experience in assessing the damages. Experience alone, however long, without resorting to comparable cases which are the best guides, may result in speculation. The award of RM40,000 was erroneous and manifestly excessive and RM22,000 would be a fair and reasonable award; (3) both loss of future earnings and loss of earning capacity are items of general damages; (4) on the evidence in this case, the respondent was not entitled to damages for loss of future earnings, which was not proved, nor was he entitled to damages for loss of earning capacity.

Ngooi Ku Siong & Anor v Aidi Abdullah [1985] 1 MLJ 30 Federal Court, Kuala Lumpur (Lee Hun Hoe CJ (Borneo).

The infant plaintiff sued through her next friend for damages for personal injuries suffered as a result of her being knocked down by a motor car driven by the defendant when she was crossing the road. It appeared that the infant plaintiff had been left in a car by her mother, who had crossed the road to go to a shop. Sometime later, the infant plaintiff got out of the car and crossed the road in the direction in which she had seen her mother go. After she had crossed the middle of the road she was knocked down by the defendant's car. As a result of the accident, the plaintiff had a deep lacerated wound 6" long running across her face involving the nasal bone and the lower margin of the left orbit. She was left with a permanent disfigurement of her face by reason of two large and prominent scars. There was also a scar causing her left nostril to narrow as it went down. This had caused a certain amount of blocking of the left nostril which would obstruct the normal flow of the nasal discharge during a cold. Furthermore, her mouth was slightly crooked to the left when she smiled because the muscles of her right cheek did not pull up the right side of the mouth. The orthopaedic surgeon opined that plastic surgery might reduce the facial disfigurement to some extent, but the scars would still remain.

Held: (1) the defendant was entirely to blame for the accident and must be held liable for damages; (2) even if there was evidence of negligence on the part of the plaintiff in this case, in view of her age, no contributory negligence could be attributed to her; (3) the negligence of the person in charge of the child was no answer to the claim made by the plaintiff against the defendant; (4) taking into account the pain and suffering that she must have undergone and the permanent disfigurement of her face which was unlikely to disappear completely by plastic surgery, general damages would be assessed at RM10,000.

Symes v Ling Ngan Ngieng [1966] 2 MLJ 149 High Court, Kuala Lumpur (Gill J).

The respondent had been injured in a road accident and had suffered injuries on her face which left scars which in the opinion of her family doctor needed plastic surgery. She subsequently went to New York and plastic surgery was done on her. The learned trial judge awarded her RM10,000 as general damages and also awarded part of the cost of the journey to New York and the expenses she incurred there as special damages. The appellant appealed against these awards alleging that they were manifestly excessive. There was evidence that the plastic surgery could have been performed by a qualified surgeon in Singapore at considerably less cost.

Held: (1) the amount of RM10,000 awarded for general damages in this case was manifestly excessive as the injuries suffered by the respondent were comparatively minor injuries and the general damages should be reduced to RM5,000; (2) as the medical expenses were reasonably incurred for medical treatment and as the learned judge had only awarded part of the actual expenses incurred, the appeal against the award of special damages would be dismissed.

Rajaletchumi & Anor v Angela Soh Oon Kay [1971] 1 MLJ 129 Federal Court, Kuala Lumpur (Azmi LP, Gill and Ali FJJ).

The second plaintiff suffered cerebral concussion and two lacerations measuring 8 cm and 4 cm on the right frontal region of his scalp and right supra-pubic region.

Held: (1) the first plaintiff was awarded general damages in the sum of RM4,500 and interest at the rate of 6% per annum from date of service of writ to date hereof, RM1,060 special damages, interest at the rate of 3% per annum from date of accident to the date of judgment; (2) the second plaintiff was awarded general damages in the sum of RM4,000 and interest at the rate of 6% per annum from date of service of writ to date hereof, RM690 special damages and interest at the rate of 3% per annum from date of accident to date of judgment; (3) the third, fourth, fifth, sixth, seventh and eighth plaintiffs should be awarded the sum of RM152,102 being the dependency claim, interest at the rate of 3% per annum on RM16,800 from the date of accident until the date of judgment; (4) the third plaintiff was awarded the agreed sum of RM2,000 as funeral expenses, interest at the rate of 3% per annum from the date of accident to the date of judgment; (5) costs to the plaintiffs.

Eng Ngak Hua & Ors v Ahmad Nordin bin Haji Mazlan & Anor [1987] 1 MLJ 241 High Court, Kuala Lumpur (Siti Norma Yaakob J).

Chua Kim Suan & Anor v Government of Malaysia & Anor Civil Suit No 816-85 High Court, Ipoh (Abdul Malek J).

See DAMAGES (PERSONAL INJURY OR DEATH), Vol 6, para 326.

The plaintiff was an employee of independent contractors engaged by the defendants to load and unload iron bars at the defendants' factory. The iron bars were loaded by means of a crane operated by a servant of the defendants. The procedure for the loading operation was that the bars would be hoisted after the plaintiff had given a voice signal and raised his right hand. During one of these operations, the plaintiff's left thumb was severely crushed against a load of iron bars as the chain which he had fastened around them tightened when the crane driver commenced to lift the load after the plaintiff had given the voice and hand signals.

Held: the plaintiff was guilty of contributory negligence and was therefore entitled to only 25% of the total damages, ie 25% of S$3,500 general damages and S$500 special damages.

Kuok Keet Ling v National Iron & Steel Mills Ltd [1967] 2 MLJ 48 High Court, Singapore (Winslow J).

The plaintiff operating a power press machine at a foundry met with an accident whereby the injuries sustained necessitated amputation of the index and middle fingers of his right hand. He claimed damages against his employers the owners of the foundry for the injuries. The judge, examining the surrounding circumstances in the light of the probabilities of the case,

Held: the defendants were solely liable. The plaintiff was allowed the agreed sum of RM318 as special damages and general damages assessed at RM3,000.

Tan Sin Chong v Hong San Kwong Onn Chuan Foundry [1968] 1 MLJ 62 High Court, Malacca (Ismail Khan J).

The plaintiff while working in the defendants' factory on a part-time basis as a machine operator, was injured by the machine that he was operating. As a result of the accident, the plaintiff suffered amputation of the right index finger, the right middle finger and the right ring finger. The plaintiff was a daily paid worker rated at S$8.80 per day from Monday to Saturday. At the end of August 1985, his wages were to have been S$9.26 per day.

Held: (1) damages were awarded as follows: Special damages (agreed) S$2,387 Damages for pain and suffering S$30,000 Damages for loss of future earnings S$45,000; (2) interest would be paid at 6% from 19 January 1982 till 22 March 1985.

Ong Moh Chong v Hitachi Chemical (S) Pte Ltd [1987] 1 MLJ 450 High Court, Singapore (Rajah J).

Left thumb got caught against load of iron bars. General damages: S$3,500.

Kuok Keet Ling v National Iron & Steel Mills Ltd [1967] 2 MLJ 48 High Court, Singapore (Winslow J).

In this case, the plaintiff was employed as a sawyer in the plaintiff's sawmill. He was injured in the course of his employment and as a result lost three fingers of his right hand. Because of the injuries he was refused further employment at the defendant's sawmill. He was out of work for one year until he found employment as a labourer. He sued the defendants and claimed general and special damages.

Held: (1) in this case, the pre-trial loss of earnings should have been claimed as special damages. Even though the claim was wrongly made as general damages, the court could increase the special damages to include the pre-trial loss of earnings; (2) having regard to the sums awarded in other cases and in particular to the injuries suffered by the plaintiff and the length of his stay in hospital, the sum of RM15,000 would be allowed for pain and suffering and loss of amenities; (3) with regard to loss of future earning capacity, the amount awarded should be RM18,683.39; (4) the general damages should be reduced to take into account the possibility of overlapping and the amount awarded should be RM32,683.89.

Mat Jusoh bin Daud v Syarikat Jaya Seberang Takir Sdn Bhd [1982] 2 MLJ 71 High Court, Kuala Trengganu (Salleh Abas FJ).

The plaintiff and one Mustakim were the operators of a clicking press. The plaintiff was working as a feeding operator and Mustakim was the machine operator. It was alleged that while the plaintiff was spreading powder on the rubber sheet, Mustakim negligently caused the cutter to descend and cut the plaintiff's right hand, as a result of which four of his fingers had to be amputated.

Held: taking all relevant factors into consideration, damages would be assessed at RM14,500.

Mohamed Husin v Shum Yip Leong Rubber Works Ltd [1972] 1 MLJ 17 High Court, Kuala Lumpur (Yong J).

In this case, the appellant claimed damages for personal injuries sustained in a road accident which occurred between a timber lorry driven by the first repondent and a motor cycle ridden by the appellant. The learned trial judge dismissed the claim of the appellant and did not make a provisional assessment of damages. The appellant appealed.

Held: (1) in assessing damages the court will only consider the medical reports which were before the trial court and formed part of the agreed bundle of documents; (2) there was no satisfactory evidence of loss of future earnings, but as the court was satisfied that the appellant had suffered a loss of earning capacity, it will award him damages for his loss of earning capacity as part of the general damages for disability and not as compensation for loss of future earnings; (3) considering all the circumstances, the sum of RM22,000 is the appropriate amount for pain and suffering, loss of amenities and earning capacity in the present case.

Multar v Lim Kim Chet & Anor [1982] 1 MLJ 184 Federal Court, Johore Bahru (Wan Suleiman Ag CJ (Malaya).

On or about 22 October 1975, the plaintiff was run-over by the tyre of a forklift belonging to the first defendant and driven by the second defendant. As a result, his right foot was crushed and deformed and he walked with a limp. The accident occurred during and in the course of the plaintiff's employment as a forklift attendant. The plaintiff was 17 years old at the time of the accident. He averred that the defendants were negligent and claimed against his employers loss of wages for 40 months, expenses and general damages. Both defendants have denied liability and the alleged negligence.

Held: (1) on the facts disclosed in the evidence, the second defendant is wholly liable and the plaintiff had in no way contributed to the accident; (2) the plaintiff should be awarded damages of RM28,000 for loss of total earnings, RM30,000 for pain and suffering, RM16,300 for loss of earning capacity, and RM33,900 for future loss of earning capacity and interest at 3% per annum on special damages from the date of accident to the date of service and thereafter at 6% per annum; no interest on the amount for future loss of earnings; 6% per annum on the rest of the award from the date of service of the writ to the date of judgment and thereafter at 8% per annum.

Tan Lian Heng v Kilang Papan Aman Sdn Bhd & Anor [1987] 2 MLJ 630 High Court, Kuantan (Shaik Daud J).

'I can find no authority to support the proposition (and personally, as long as I am free to do so I shall set my foot against any attempt to lay down any such rule) that the assessment of damages in personal injury cases must in every case result from the application of some sort of formula, that we must measure the shortening of the leg by the inch, that we must ascertain to the nearest inch the point at which the leg has been amputated and that we should thereby arrive at some figure which we can use to perform some arithmetical operation or to arrive at some absolute notional standard of damages.': per Thomson CJ.