Law of Torts - Fatal Accidents

In Fatal Accidents, cases two consequences follows:-

A. Estate Claims (Section 8 Civil Law Act)

Where the victim himself fatally wounded and compensation can be claimed by the estate of the victim and distributed according to Intestacy.

Special Damages

1. Out of Pocket


Medical care, transportation, clothing damage to vehicle and other damage (eg watch jewel)

2. Loss of Earnings\This can be claimed from the date of the accident till death.

3. Funeral Expenses

Please refer to section 8(2)(c) of Civil Law Act

General Damages

1. Pain and Suffering

If the victim injured and was suffering from pain and then he died, the estate can claim this damages. Provided the victim must be conscious.

But if the victim died without regaining conscious, cannot claim.

Please refer to the case of Low Yoke Ying v Sim Kok Lee.

2.Loss of Expectation of Life – Previously was awarded but after the amendment Section 8(2)(a) of Civil Law Act abolished it.

Loss of Future Earning for ‘Loss Years’ – after the person’s death also not recoverable.

B. Dependant’s Claim

As a result of the victim’s death, his dependants who are deprived of financial supports can claim compensation.

Categories of Dependants (Section 7(2) of Civil Law Act)

1. Two types of Dependants

i. Dependant in Law (adopt)

ii. Dependant in Fact

2. Categories of Person as dependant:

i. Husband/Wife

ii. Child – son, grandson, daughter, granddaughter, stepson, stepdaughter, legally adopted child

iii. Parents both sides – father, mother, grandfather, grandmother

Special Damages

1. Section 7 (3) of Civil Law Act

Dependants can claim any Loss of support suffers or any expenses incurred :-

i. medical expenses

ii. cost of travelling to funeral service

iii. placing death announcement

2. Funeral Expenses – if incurred by dependant

3. Pre Trial Loss of Support

General Damages

1. Bereavement (Section 7(B) of Civil Law Act)

This can be claimed by

i. spouse of deceased

ii. parents of deceased

iii. minor & unmarried child

Section 3 (3D) of Civil Law Act - - Court can award RM10,000.00

2. Loss of Services or Consortium (Section 7(3)(iii) of Civil Law Act)

Parent cannot claim for deprived of the Loss of service by the Child. But the Court award Loss of Consortium to the parents.

Husband/Wife cannot claim for loss of consortium with wife.

3. Loss of Financial Support

The dependants can claim for Loss of earning (future earning)

Section 7(3)(iv)(a) of Civil Law Act - - In assessing Loss of Earning after the death court must consider :

i. if victim has attained 55 years old cannot claim

ii. whether deceased before the death was in good health but for the injury and was receiving earning by own labour or gainful activity before death.

iii. multiplicand is the annual loss and period of dependency in the multiplier.

iv. other factors considered:-

- expected working life of deceased

- period of support required by dependant

- whether dependant will receive other sources of income as a result of the breadwinners death.

Section 7(3)(i) - - Insurance payments, EPF, Pension and Gratuity/Compensation paid under written law in respect of the death are not considered.

Illegal sources of income must be excluded

Chua Kim Suan & Teoh Teik Nam v Govt of Malaysia - - Court must ignore propect of increase in earning.

Prospect of Promotion

Section 7(3)(iv)(c)

Must deduct Living Expenses of deceased

Section 7(3)(iv)(d) - - calculation are same (deceased age 30 years & below = 16 years.)
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