Chapter 6 - Special Damages for Personal Injury Claim Flashcards
SPECIAL DAMAGES
Overview
1) Traditional medicines
2) Medical appliances
3) Transport expenses
4) Private or government hospitals
5) Overseas treatment
6) Pre-trial cost of care & gratuitous care
7) Cost of substitutes
8) Pre-trial loss of earnings
TRADITIONAL MEDICINES
Test to award
R, RA, RB
Seah Yit Chen v Singapore Bus Services:
- Whether it is reasonable for P to seek such traditional medicine & incur such expenses.
- Whether it is sought based on reliable advices, reasonable expectation of the benefit & not just on the impulse on P.
- i.e. P must show that:
- It was reasonable for him to seek such a treatment;
- He had sought the treatment based on reliable advices;
- He is reasonably expected to benefit from the treatment.
- it depends on facts & circumstances of each case.
TRADITIONAL MEDICINES
Recent Example
CA, 2017
Rohgetana Mayathevan v Dr. Navin Kumar & Ors:
- Traditional treatment which is pleaded & particularised, can be proved by oral or documentary evidence;
- OTF, such claims were allowed so long they were within a reasonable sum & justifiable in the circumstances.
MEDICAL APPLIANCES
Test to award
E, N
Wong Li Fatt William (an infant) v Haidawati bte Bolhen & Anor:
- Claim for medical appliances must be provided with evidence & demonstrate its necessity.
- OTF, claim for bed to aid blood circulation was not allowed since there was no evidence to show that the bed is necessary.
- Wheelchair & reclining chairs are allowed as it was evidently necessary.
TRANSPORT EXPENSES
Test to award
F, R, N
Ting Swee Ting v Tiong Teck Hock & Anor:
- The test to award transportation expenses by family members is fair, reasonable & necessary.
- OTF, claims are allowed since P was 18 yo and had no one there.
- It was reasonable for P & her mother to make the trip & incur the expenses.
- having regard to the local conditions, the sum claimed was fair & reasonable.
PRIVATE OR GOVERNMENT HOSPITALS
Test to award
J, R
NA, WRT, GI
Chai Yee Chong v Lew Thai:
- General rule: quantum must be reasonable.
- Rule for private & government hospitals:
1) Govt hospital: full expenses shall be awarded
2) Private hospital: must be justified AND reasonable.
- Justified if:
1) The treatment is NOT AVAILABLE in the government hospital; or
2) Even if it is available, it is not available WITHIN REASONABLE TIME; or
3) The treatment even available, is GROSSLY INADEQUATE. - Reasonable if:
Court to consider the normal charges at other local private hospitals. - If the costs is unjustified or unreasonable:
1) Court may dismiss the claim altogether; or
2) Award 1/3 or less of the total expenses.
PRIVATE OR GOVERNMENT HOSPITALS
Recent application
MC, 2020
Ju Wai Nye v Mui Siang Lin:
- Plaintif telah mengambil risiko sendiri apabila memasukkan anaknya ke Hospital Swasta berbanding Hospital Kerajaan.
- Ianya bukanlah dibuat atas dasar nasihat doktor yang bertugas.
- Oleh itu, mahkamah ini berpandangan ianya bukanlah satu justifikasi yang kukuh untuk Plaintif mendapatkan rawatan di hospital swasta berbanding hospital kerajaan.
- Dengan demikian, berpandukan kepada amalan yang sedia ada, Mahkamah memutuskan untuk hanya membenarkan 1/3 dari jumlah tuntutan Plaintif iaitu sebanyak RM7,496.95 (RM22,490.85 X 1/3) sebagai kos perubatan anak Plaintif.
OVERSEAS TREATMENT
Test to award
R
Chong Kam Siong v Herman bin Baharuddin:
- Whether the expenses are reasonable;
- Court will struck out the claim if the expenses incurred are unreasonable.
- “an ordinary citizen of this country has a right to choose medical treatment for his injuries and illness from whatever and from wherever. The only limitation to this freedom are economic and availability factors.”
OVERSEAS TREATMENT
Application
1) Chong Kam Siong v Herman bin Baharuddin:
- Close proximity between JHB & SG, it is not unreasonable for anyone in JHB to seek treatment in SG.
2) Dharam Singh Dhillon v Ibrahim bin Shaaban:
- Treatment to US was unnecessary since it is available locally;
- The court awarded the equal amount as if the treatment was done locally.
OVERSEAS TREATMENT
Recent application
x
PRE-TRIAL COSTS OF CARE
Whether gratuitous is allowed
John Andrew Malthouse v. Cyril Steven [2015]:
- care provided by a relative or spouse must be rewarded with monetary compensation.
PRE-TRIAL COSTS OF CARE
Factors for assessment of costs
Liong Thoo v Sawiyah & Ors:
- prevailing money value;
- costs of a servant;
- value of the service.
- practice has been providing a lower costs for gratuitous care since it will be provided anyway.
COSTS OF SUBSTITUTES
Definition & scope of claim
Raja Zam Zam v Vaithiyanathan:
- compensation for costs paid for help to do housework;
- or to substitute other benefits provided by the P such as to send her kids to school etc.
- P can claim expenses of engaging the servants to the same job.
PRE-TRIAL LOSS OF EARNING
Distinction between pre-trial & future loss of earning
Ngooi Ku Siong v Aidi Abdullah:
- PTLE is special damages;
- LFE is general damages.
Chan Ching Meng v Lim Yoke Eng:
- distinction must be made for the purpose of awarding interest.
PRE-TRIAL LOSS OF EARNING
Definition & scope
Sumarni v Yow Bing Kwong:
- actual amount of earnings lost by P as a result of an accident caused by D;
- i.e. from the date of accident until the date of trial.
