REMEDIES II

MS. JULIA FARHANA BINTI ROSEMADI

 FATAL CLAIMS: SECTION 7 OF THE CIVIL LAW ACT
1956

• Section 7 of the CLA 1956 deals with dependency claims.

• (1) Whenever the death of a person is caused by wrongful act, neglect or
default, and the act, neglect or default is such as would, if death had not ensued,
have entitled the party injured to maintain an action and recover damages in
respect thereof, the party who would have been liable if death had not ensued
shall be liable to an action for damages, notwithstanding the death of the person
injured, and although the death has been caused under such circumstances as
amount in law to an offence under the Penal Code.
 WHO MAY BRING A CLAIM?

• SECTION 7 (2) OF THE CLA 1956

• WIFE
• HUSBAND
• PARENT
• CHILD
• SECTION 7 (11) OF THE CLA 1956
• “CHILD” : SON, DAUGHTER, GRANDSON, GRANDDAUGHTER, STEPSON AND STEPDAUGHTER;
• “PARENT” : FATHER, MOTHER, GRANDFATHER, GRANDMOTHER
 CASE: CHAN CHIN MING V LIM YOK ENG [1994] 3
MLJ 233

• Supreme Court: Brothers and sisters are not ‘dependents’ therefore cannot claim
for loss of support
 SECTION 7 (3)(IV)
(iv) in assessing the loss of earnings in respect of any period after the death of a person
where such earnings provide for or contribute to the damages under this section the court
shall —
(a) take into account that where the person deceased has attained the age of fifty five
years at the time of his death, his loss of earnings for any period after his death shall
not be taken into consideration; and in the case of any other person deceased, his loss of
earnings for any period after his death shall be taken into consideration if it is proved or
admitted that the person deceased was in good health but for the injury that caused his
death and was receiving earnings by his own labour or other gainful activity prior to his
death;
 ‘DECEASED HAD ATTAINED THE AGE 55 YEARS OLD’

• CASE: JENNIFER ANN HARPER V TIMOTHY THESEIRA [2009] 2 CLJ 499 HC

• The deceased age is 68 years old at the time of death, thus the claim for loss of
support was precluded by virtue of Section 7(3)(iv)(a)
 OTHER CONDITIONS THAT MUST BE SATISFIED

• ‘Deceased must be in good health’

• Case: Osman Effendi v Mohd Noh [1998] 4 AMR 3687
• ‘must be earning at the time of death’
• Case: Dirkje v mohd noor [1990] 3 mlj 103
 MULTIPLICAND

• Section 7 (3)(iv)
(b) take into account only the amount relating to the earnings as aforesaid and the
court shall not take into account any prospect of the earnings as aforesaid being
increased at any period after the person’s death;
(c) take into account any diminution of any such amount as aforesaid by such sum as
is proved or admitted to be the living expenses of the person deceased at the
time of his death;
 REDUCTION OF DAMAGES

• Case: Chan Chin Ming v Lim Yok Eng (Supreme court)

• Takong Tabari v Govt of Sarawak
• 1/3 of the earnings will be deducted.
• See Muniyandi & Anor v Eric Chew Wai Keat & Anor [2003] 3 MLJ
527
 MULTIPLIER

• Section 7(3)(iv)(d)
• Fixed multiplier:
• Below 30 years : 16
• Case: Ibrahim bin Ismail v Hasnah bte Puteh Imat [2004] 2 AMR 253
• Age 31 -54: 55 – (deceased age at the time of death) / 2
 BEREAVEMENT

• SECTION 7(3A)
• An action under this section may consist of or include a claim for
damages for bereavement and, subject to subsection (3D), the sum to
be awarded as damages under this subsection shall be ten thousand
ringgit.
 WHO CAN CLAIM?
• SECTION 7(3B)
A claim for damages for bereavement shall only be for the benefit —
(a) of the spouse of the person deceased; and
(b) where the person deceased was a minor and never married, of his parents.
• SECTION 7(3C)
Where there is a claim for damages under subsection (3B)(b) for the benefit of the
parents of the person deceased, the sum awarded shall be divided equally
between them subject to any deduction likely to be made in respect of all costs and
expenses including cost not recovered from the defendant.
 CASES FOR BEREAVEMENT

• NOOR FAMIZA BT ZABRI & ANOR V AWANG BIN MUDA & ANOR
• The spouse of the deceased was awarded rm10,000 for bereavement
• HAZIMAH BT MUDA V AB RAHIM BIN AB RAHMAN [727] MD 1.
• The bereavement award must be shared equitably between two wives.
• HOOI SEONG V OOI PAY YEONG [1995] 4 MLJ 670
• No award for bereavement was made by the high court as it could not be
presumed that the minor deceased was not married.
 FUNERAL EXPENSES

• SECTION 7(3)(ii) CLA 1956

• Damages may be awarded in respect of the funeral expenses of the
person deceased if such expenses have been incurred by the party
for whose benefit the action is brought;
 SECTION 8 CLA 1956 : ESTATE CLAIMS

• A claim brought by a representative of the deceased’s estate for a personal

injury claim that they would have been entitled to if they are still alive
• Section 8 (5) the rights conferred by this section for the benefit of the estate of
deceased persons shall be in addition to and not in derogation of any rights
conferred on the dependants of deceased persons by section 7 and so much of
this section as relates to causes of action against the estates of deceased persons
shall apply in relation to causes of action under the said section as it applies in
relation to other causes of action not expressly excepted from the operation of
subsection (1).
 SECTION 8(2)
• Where a cause of action survives as aforesaid for the benefit of the estate of a
deceased person, the damages recoverable for the benefit of the estate of that
person—
(a) shall not include any exemplary damages, any damages for bereavement
made under subsection 7(3a), any damages for loss of expectation of life and any
damages for loss of earnings in respect of any period after that persons death;
(b) in the case of a breach of promise to marry shall be limited to such damage, if
any, to the estate of that person as flows from the breach of promise to marry; and
(c) where the death of that person has been caused by the act or omission which
givesrisetothecauseofaction,shallbecalculatedwithoutreferencetoanyloss or gain to
his estate consequent on his death, except that a sum in respect of funeral expenses
may be included.
 CONTEMPTUOUS DAMAGES

• May be awarded to all type of torts.

• Contemptuous damages are awarded to a plaintiff when the court
feels that the plaintiff does not have a good claim.
• The amount of damages is the smallest denomination of money.
• The court has the discretion to instruct the plaintiff to bear the cost of
both parties
 NOMINAL DAMAGES
• Granted for torts which are actionable per se
• Nominal damages are awarded when the plaintiff proves that the
defendant has committed a tort, even though the plaintiff has not suffered
any actual loss.
• Nominal damages are awarded in recognition of the plaintiff’s legal right.
• Case: Tay Tuan Kiat v Pritam Singh Bar [1987] 1 MLJ 276
• Nominal damages for the sum of rm500 was awarded in recognition of the
plaintiff’s right.
 EXEMPLARY DAMAGES

• Damages are awarded as a punishment and deterrent to the

defendant.
• Not compensatory in nature
• The function is to deter the defendant from repeating his act in the
future
 CASE FOR EXEMPLARY DAMAGES

• Rookes v Barnard [1964] AC 1129

• “exemplary damages could be awarded in cases;
• (i) of oppressive, arbitrary or unconstitutional acts by government servants;
• (ii) where the defendant’s conduct had been calculated by him to make a
profit for himself which might well exceed the compensation payable to the
plaintiff;
• (iii) where expressly authorised by statute.”
 CASSEL & CO LTD V BROOME [1972] AC 1072

The defendant was ordered to pay 15,000 pound for general

damages and 25,000 pound for exemplary damages
 AGGRAVATED DAMAGES

• Compensatory in nature
• Aggravated damages are awarded when the plaintiff has suffered injury or loss
other than pecuniary loss, such as smear on his reputation, feeling of shame,
mental pain or so forth.
• Aggravated damages may be awarded for malicious falsehood and defamation.
• It serves to compensate the mental distress that the plaintiff has suffered
 CASES FOR AGGRAVATED DAMAGES

• ROSHAIREE ABDUL WAHAB V MEJAR MUSTAFA OMAR & ORS [1997] 1 CLJ
SUPP 39
• BISNEY V SWANSTON [1972] 225 ESTATES GAZETTE 2299
• The plaintiff was awarded 250 pounds for aggravated damages as the act of
the defendant who parked his trailer in front of the plaintiff’s coffee shop caused
the plaintiff’s business to be adversely affected.
 INJUNCTION

• An injunction is an additional remedy to general damages where

damages alone are not an appropriate or sufficient remedy.
• It is an equitable remedy, the grant of injunction is granted at the
discretion of the court.
 CONT…

• Injunction is usually not granted where:

• (i) monetary compensation is adequate
• (ii) the plaintiff only suffers a slight damage
• (iii) the injury to the plaintiff is temporary
• (iv) the plaintiff himself consents or allow his right to be encroached upon
• (v) the circumstances provided for under s. 54 of the specific relief act 1950 exist
 TYPES OF INJUNCTION
• A) PROHIBITORY INJUNCTION
• A prohibitory injunction requires the defendant to cease his activities and is
normally in cases of nuisance and repeated trespass.
• B) MANDATORY INJUNCTION
• Requires the defendant to do a positive act
• Case: K Mahunaran v Osmond Chiang Siang Kuan
• an order of injunction was granted against the defendant to demolish a wall
• See also: Morris v Redland Bricks Ltd
 THE GRANT OF AN INJUNCTION AT DIFFERENT TIMES
• (A) QUIA TIMET INJUNCTION
• A quia timet injunction is granted before the tort occurs on the condition that the
plaintiff can prove that he will suffer substantial damage if the tort in fact occurs.
• (B) PERPETUAL INJUNCTION
• A perpetual injunction is usually, but not necessarily, granted at the end of trial
after the hearing of an action.
• (C) INTERLOCUTORY INJUNCTION.
• An interlocutory injunction is granted after or during the commission of the act
alleged to be a tort and is issued as a temporary measure before the cases is
brought to the court.
 AMERICAN CYNAMID CO V ETHICON LTD [1975] AC
396, HL.

• There must be a serious issue to be tried and the balance of convenience and the
justice of the case must be in the plaintiff’s favour. The plaintiff must agree to pay
damages if, after the trial, the injunction is retracted.
• Guidelines;
• 1. Is there a serious issue to be tried?
• 2. If so, what is the balance of convenience?
 SPECIFIC RESTITUTION OF PROPERTY

• The remedy of specific restitution of property would arise in the torts of

conversion or detinue, or trespass to land.
• Case: Whiteley v Hilt [1918] 2 kb 808
• Specific restitution of property will not be awarded if damages is an adequate
remedy
 EXTINCTION OF LIABILITY

Factors which will extinguish the liability of the defendant include:

(i) waiver
(ii) accord and satisfaction
(iii) releases
(iv) judgment
(v) limitation
(vi) death of a party
THANK YOU