Chapter 7 - General Damages for Personal Injury Flashcards
GENERAL DAMAGES FOR PERSONAL INJURY
Overview
1) Pain & suffering and loss of amenity
2) Loss of expectation of life
3) Loss of future earnings
4) Assessment of loss of future earning
5) Loss of earning capacity
6) Future costs of care
7) Deductions
8) Duty to mitigate
9) Contributory negligence
PAIN & SUFFERING & LOSS OF AMENITY
Definition & scope of claim
Yeoh Kim Kuan v Hamid:
1) Pain & suffering:
- compensation for enduring pain;
- includes actual physical pain, fear, distress or anxiety;
- length of pain continues is factor to be taken into account.
2) Loss of amenities:
- loss of dimunition of his enjoyment of life;
- e.g. deprivation of a limb, organ
- also covers special gifts, abilities & talent
PAIN & SUFFERING & LOSS OF AMENITY
Factors to be taken into account
Sam Wun Hoong v Kader Ibramshah:
- quantum is assessed on the nature of the injuries sustained & period of hospitalization;
- factors: P’s age, marital status, social position, value of money.
PAIN & SUFFERING & LOSS OF AMENITY
Unconscious P
Lim Poh Choo v Camden & Islington Area Health Authority:
- The fact that P was unconscious does not eliminate the actuality of deprivation of the ordinary experiences and amenities of life;
- If P has lapsed into comma, no award for pain & suffering but there is award for loss of amenities.
PAIN & SUFFERING & LOSS OF AMENITY
semi-conscious P
Thangavelu v Chia Kok Bin:
- There was element of pain & suffering & P claim is allowed.
PAIN & SUFFERING & LOSS OF AMENITY
overlapping injuries
Thirmalal & Anor v Mohamed Masry:
- Elements of overlapping exists when two or more injuries are suffered simultaneously.
- damages will not be assessed separately.
- global sum assessed for several injuries should be scaled down by reason of overlapping.
LOSS OF EXPECTATION OF LIFE
Whether claimable & conditions for claims
Lee Ann v Mohammed Sahari:
1) Whether claimable:
- By virtue of S.28A(2)(b), P’s loss of expectation life can be taken into account when assessing damages for pain & suffering.
2) Conditions for claims:
- P must be aware of the fact that his expectation of life has been reduced.
- If P is unaware, it cannot be claimed as pain & suffering.
LOSS OF FUTURE EARNINGS
Overview
1) Definition & scope of claim
2) Pre-conditions of claim - pre-amendment position
3) Pre-conditions of claim - post-amendment position
LOSS OF FUTURE EARNINGS
Definition & scope of claim
Ngooi Ku Siong & Anor v Aidi Abdullah:
- loss of future earnings are awarded as general damages;
- loss must be real assessable loss, i.e. loss that is capable of assessment at the date of the trial.
- it must be proved by evidence & cannot be speculative;
- there must be evidence of a real & substantive loss.
LOSS OF FUTURE EARNINGS
Pre-conditions of claim - pre-amendment position
1) Age - Teh Hwa Seong v Chop Lim Chin Moh:
- 55 was adopted as normal retirement age;
- court also take into account possibilities of P being able to work way beyond that age.
2) Good health - Looi Gnan Peng v Bay Tong Hai:
- P must prove that he is in good health prior to the accident;
- Damages must not be awarded unless it is proved or admitted that the P was in good health but for the injury.
LOSS OF FUTURE EARNINGS
Pre-conditions of claim - post-amendment position
1) Presumption of good health - Osman Effendi Mahmud v Mohd Noh Khamis:
- Where it had been established that P has been gainfully employed immediately before the accident, there is presumption that P was in good health.
2) Age:
- S.28A - fixed at below 60 years
3) Earning:
- S.28A - receiving earnings by his own labour or other gainful activity.
ASSESSMENT OF LOSS OF FUTURE EARNINGS
General assessment
1) Multiplicand - amount of earnings
2) Multipliers - number of years
ASSESSMENT OF LOSS OF FUTURE EARNINGS
Multiplicand - Overview
1) Illegal income
2) Part-time or over-time earnings
3) Allowance and pension
4) Prospect of increment or promotion
5) Unpaid leave
MULTIPLICAND
Illegal income
1) Chua Kim Suan & Anor v Govt. of Malaysia:
- any claim for loss of earnings from any illegal source should not be allowed as it is against public policy.
2) cf. Tay Lye Seng & Anor v Nazori bin Teh & Anor:
- not all earnings from illegal source should be excluded;
- Where P has not played an active role in the illegality, his earnings will not be excluded on the ground.
3) Recent - Putri Ayu bt Ismail v Raulammah Nooraiah (HC, 2016):
- It must be illegal without any exceptions;
- Loss of earning arising from illegal income is irrecoverable as adverse consequences arising from the illegal activity.
MULTIPLICAND
part-time or over-time
Batumalee Masilamani & Anor v Thong Chan Leng & Anor:
- P should not be deprived of the income of his part-time job as gardener;
- This is so especially when he is not a highly educated man & relying on part-time jobs to fund his monthly income.
MULTIPLICAND
Allowance & pension
1) Allowance - Marappan v Siti Rahmah:
- Earnings must be read with “gainful activity”;
- allowance is regarded as earnings.
2) Pension - Lee In Fong v Zaharah bte Johan:
- Pension cannot be classified as earning;
3) Pension - Jennifer Anne Harper v Timothy Theseira:
- Annuities and pension payments are within the meaning of “earnings”;
- But as the deceased was 68 y/o, there can be no award for “loss of support” from “earnings”.
MULTIPLICAND
Prospect of increment or promotion
1) The law - S.28A(2)(c)(ii):
- court shall not take into account any prospect of earnings being increased.
2) General rule - Tan Kim Chuan v Chandu Nair:
- A court shall not take into account any prospect of earnings being increased at some time in the future.
3) Exception - cf. Chang Ming Feng & Anor v Jackson Lim:
- Increment can be claimed if there is clear evidence of such increment & promotion
- Award will not be made if the promotion or increment or its amount is uncertain or speculative.
- OTF, claim is allowed.
- s. 28A(2)(c)(ii)of the Act does not prevent the court from taking into account the actual increase in the basic salary which the respondent was earning at the date of trial in order to arrive at a just award since that section applies to a prospective or speculative situation and not the actual.
- Section 28A(2)(c)(ii)of the Act should also not prevent the taking into account of the fact that the respondent, if he had continued in his previous job, would have commanded an increased salary due to increment if there was evidence of such.
MULTIPLICAND
Unpaid leave
Dirkje Peiternella v Mohd Noor Baharum:
- If P was on unpaid leave, she does not qualify for any award for damages for loss of future earnings as she was not earning at the particular time of accident.
- H/ever, P was entitled to claim for loss of earning capacity.
MULTIPLIERS
The law
S.28A(2)(d):
- fixed multiplier;
- below 30 years: 16
- 31 - 55 years old: 60 - age / 2
LOSS OF EARNING CAPACITY
Overview
1) Distinction between LOEC & LOFE
2) Test to award LOEC
3) LOEC for students
4) Application & example
LOSS OF EARNING CAPACITY
Distinction between LOEC & LOFE
Ngooi Ku Siong v Aidi Abdullah:
- LOEC: No prove that P has lost his earnings & there is risk may be thrown out of work at some future date.
- LOFE: real assessable loss, capable of assessment at the date of trial.
LOSS OF EARNING CAPACITY
Test to award LOEC
1) Ngooi Ku Siong v Aidi Abdullah:
- Risk must be real & not speculative;
- claims are only available when P was in employment;
- it is immaterial whether P is in or out of employment at the time of the trial.
2) Pengarah Institut Penyelidikan Perubatan v Intra Devi & Anor:
- Court must be satisfied that there is substantial or real risk that P might lose her job at some future date.
- The risk should not be speculative.
LOSS OF EARNING CAPACITY
LOEC for students
Tan Kim Chuan v Chandu Nair:
- LOEC is only for those who are in fact receiving earnings before the accident;
- LOEC is therefore not available for students.
LOSS OF EARNING CAPACITY
Application & example
1) Dirkje Peiternella Halma v Mohd Noor bin Baharom:
- P was on unpaid leave at the time of accident;
- P was awarded with LOEC which last for the rest of her working life.
2) Azizi Amran v Hizzam Che Hassan:
- there was clear medical evidence that P will develop osteoarthritis in which he will have to endure future pain & suffering;
- it would be difficult for him to get a job with the same salary with the arthritis & this is not a fanciful risk;
- court awarded a sum to compensate P taking into account the difficulty.
