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GP Tort > Chapter 7 - General Damages for Personal Injury > Flashcards

Chapter 7 - General Damages for Personal Injury Flashcards

1
Q

GENERAL DAMAGES FOR PERSONAL INJURY

Overview

A

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

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2
Q

PAIN & SUFFERING & LOSS OF AMENITY

Definition & scope of claim

A

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
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3
Q

PAIN & SUFFERING & LOSS OF AMENITY

Factors to be taken into account

A

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.
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4
Q

PAIN & SUFFERING & LOSS OF AMENITY

Unconscious P

A

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.
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5
Q

PAIN & SUFFERING & LOSS OF AMENITY

semi-conscious P

A

Thangavelu v Chia Kok Bin:

  • There was element of pain & suffering & P claim is allowed.
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6
Q

PAIN & SUFFERING & LOSS OF AMENITY

overlapping injuries

A

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.
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7
Q

LOSS OF EXPECTATION OF LIFE

Whether claimable & conditions for claims

A

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.
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8
Q

LOSS OF FUTURE EARNINGS

Overview

A

1) Definition & scope of claim
2) Pre-conditions of claim - pre-amendment position
3) Pre-conditions of claim - post-amendment position

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9
Q

LOSS OF FUTURE EARNINGS

Definition & scope of claim

A

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.
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10
Q

LOSS OF FUTURE EARNINGS

Pre-conditions of claim - pre-amendment position

A

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.
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11
Q

LOSS OF FUTURE EARNINGS

Pre-conditions of claim - post-amendment position

A

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.

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12
Q

ASSESSMENT OF LOSS OF FUTURE EARNINGS

General assessment

A

1) Multiplicand - amount of earnings

2) Multipliers - number of years

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13
Q

ASSESSMENT OF LOSS OF FUTURE EARNINGS

Multiplicand - Overview

A

1) Illegal income
2) Part-time or over-time earnings
3) Allowance and pension
4) Prospect of increment or promotion
5) Unpaid leave

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14
Q

MULTIPLICAND

Illegal income

A

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.
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15
Q

MULTIPLICAND

part-time or over-time

A

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.
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16
Q

MULTIPLICAND

Allowance & pension

A

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”.
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17
Q

MULTIPLICAND

Prospect of increment or promotion

A

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.
18
Q

MULTIPLICAND

Unpaid leave

A

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.
19
Q

MULTIPLIERS

The law

A

S.28A(2)(d):

  • fixed multiplier;
  • below 30 years: 16
  • 31 - 55 years old: 60 - age / 2
20
Q

LOSS OF EARNING CAPACITY

Overview

A

1) Distinction between LOEC & LOFE
2) Test to award LOEC
3) LOEC for students
4) Application & example

21
Q

LOSS OF EARNING CAPACITY

Distinction between LOEC & LOFE

A

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.
22
Q

LOSS OF EARNING CAPACITY

Test to award LOEC

A

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.
23
Q

LOSS OF EARNING CAPACITY

LOEC for students

A

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.
24
Q

LOSS OF EARNING CAPACITY

Application & example

A

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.
25
Q

FUTURE COSTS OF CARE

Overview

A

1) Need for proof
2) Medical care for future surgery
3) Care by loved ones
4) Care at paid medical institution

26
Q

FUTURE COSTS OF CARE

Need for proof

A

Jamil bin Harun v Yang Kamsiah:

  • Cost of care will only be awarded when there is evidence;
  • In some instances where injuries of grave, court may presume such need of care.
27
Q

FUTURE COSTS OF CARE

Medical care for future surgery

A

Seah Yit Chen v Singapore Bus Service:

  • P was awarded with agreed cost of proven future surgery, hospitalisation & treatment charges during the surgery.
  • This is allowed since damages are allowed once & for all.
28
Q

FUTURE COSTS OF CARE

Care by loved ones

A

Ahmad Daman Huri v Khoo Chin Yau:

  • It is just for P to recover compensation for the value of services that his wife has rendered;
  • He should hold it on trust for her as she herself cannot sue the tortfeasor;
  • If the wife has given up her job to take care of him, loss of income is also recoverable.
29
Q

FUTURE COSTS OF CARE

Paid care at institution

A

Lim Poh Choo v Islington AHA:

  • Courts allowed claim for care at a care institution;
  • when making award for cost of care at a paid institution, P’s living expenses were deducted from the costs of care at institution.
30
Q

DEDUCTIONS

Overview

A

1) Deductions of living expenses
3) Must be proved or admitted
4) Deductions of taxes
5) Insurance
6) Pension & gratuity
7) Donations & gifts
8) Failure to mitigate

31
Q

DEDUCTIONS

Deductions of living expenses

A

1) General rule - Chang Chong Foo v Shivanathan:

  • In personal injury claims, there cannot be deductions for living expenses since P is still alive;
  • P is still likely to incur some personal expenses.

2) Exception - Tey Chuan & Anor SEA Insurance Bhd:
- For personal injury claims, since P is still living, deduction may include extra cost of having his meals at work & expenses of going to work (i.e. since P is no longer working).

32
Q

DEDUCTIONS

Must be proved or admitted

A

Abdul Ghani bin Hamid v Abdul Nasir bin Abdul Jabbar:

  • Living expenses can only be deducted if the amount is either admitted by P or proved by D;
  • OTF, no deductions made since it was not proved or admitted.
33
Q

DEDUCTIONS

Deductions of taxes

A

Lim Eng Kay v Jaafar bin Mohamed Said (FC):

  • Sum awarded must take into account P’s income tax liability.
  • This is so even if the court has to speculate the amount of tax P needs to pay.
34
Q

DEDUCTIONS

Insurance

A

1) The law - S.28A(1)(a)
- no deduction for insurance;
2) Application - Ward v MAS:
- insurance benefit was not deductible both under S.28A & common law.

35
Q

DEDUCTIONS

Pension & gratuity

A

1) The law - S.28A(1)(b)
- no deduction for pension & gratuity;
2) Application - KR Taxi Services Ltd & Anor v Zaharah & Ors:

  • gratuity: included all direct payments of money by 3rd party to the dependants as a measure of assistance.
  • such benefit is not deductible.
36
Q

DEDUCTIONS

Donations & gifts

A

Lim Kiat Boon & Ors v Lim Seu Kong:

  • General rule: no deduction for money given as gifts;
  • Exception: where money given as a form of employer’s contractual obligation.
  • i.e. sum awarded will be payable back to the employer.
37
Q

DUTY TO MITIGATE

Duty to mitigate

A

Ting Jie Hoo v Lian Soon Hing Shipping Co:

  • P is at all times under a duty to mitigate his loss;
  • If it can be shown that P could have taken any other appropriate job, damages awarded will be reduced accordingly.
38
Q

DUTY TO MITIGATE

Failure to mitigate

A

Yoong Leok Kee Corp Sdn Bhd v Chin Thong Thai:

  • Assessment of loss must include P’s failure to mitigate;
  • OTF, sum awarded is reduced as P has failed to mitigate by leaving the Hospital & going against the medical advices.
39
Q

CONTRIBUTORY NEGLIGENCE

Overview

A

1) Meaning of negligence in CN
2) Example
3) CN for infants

40
Q

CONTRIBUTORY NEGLIGENCE

Meaning of negligence in CN

A

Nance v British Columbia Electric Railway Co Ltd:

  • the principle involving contributory negligence is that, where a man is part author of his own injury, he cannot call on the other party to compensate him in full.

Mohd Zukhairi Abd Ghapar & Anor v Quek Chiam Kee:

  • Does not mean breach of duty;
  • It means failure by a person to use reasonable care for the safety of himself or his property so that he becomes the author of his wrong.
41
Q

CONTRIBUTORY NEGLIGENCE

Example

A

Loh Chee Kong v Syarikat Bee Huat Bhd:

  • a prudent driver would anticipate the motorcyclist losing his control;
  • P did not avoid until it was too late;
  • P was held to be contributorily negligent.
42
Q

CONTRIBUTORY NEGLIGENCE

CN for infants

A

Mohd Safuan bin Wasidin & Anor v Mohd Ridhuan bin Ahmad (an infant):

  • degree of care attached to a child is different;
  • the younger the child, the lesser the degree of care is expected;
  • OTF, due to P’s tender age, he cannot be held liable for CN.

GP Tort (9 decks)

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