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GP Tort > Chapter 8 - Fatal Accident Claims > Flashcards

Chapter 8 - Fatal Accident Claims Flashcards

1
Q

FATAL ACCIDENT CLAIMS

Overview

A

1) General principles
2) Dependency claims
3) Estate claims

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2
Q

GENERAL PRINCIPLES

Types of claims

A

Loo Khoo Chin & Loo An Moi & Anor v Tan Cheng Hang & Ors:

  • S.8 provides for estate claims: damages recovered will go to the estate & distributed as part of the inheritance of the beneficiaries.
  • S.7 provides for dependency claims: damages recovered will go to the dependents.
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3
Q

GENERAL PRINCIPLES

Limitation for dependency claims

A

Lee Cheng Yee v Tiu Soon Siang & Anor:

  • S.7(5) is absolute & contains no exception;
  • D may rely on it although P has not pleaded it.
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4
Q

DEPENDENCY CLAIMS

Overview

A

1) Meaning & purpose
2) Meaning of dependents & loss of support
3) Test for loss of support
4) Who are / are not dependents
5) Derivative action
6) Pre-conditions for claims
7) Additional pre-conditions
8) Source of income

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5
Q

DEPENDENCY CLAIMS

Meaning & purpose

A

Chan Ching Meng v Lim Yoke Eng:

  • To compensate for loss of support as a result of deceased’s death;
  • includes all pecuniary benefit the P received from the deceased.
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6
Q

DEPENDENCY CLAIMS

Meaning of loss of support

A

Muhammad bin Hashim (Bapa Si Mati) v Teow Teik Chai & Anor:

  • Support: pecuniary provision that furnishes the livelihood.
  • Loss of support: pecuniary benefit lost as a consequence of the death of the support provider.
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7
Q

DEPENDENCY CLAIMS

Test for loss of support

A

Muhammad bin Hashim (Bapa Si Mati) v Teow Teik Chai & Anor:

  • direct benefit to the claimant, not vicarious;
  • the claimant need not prove he was dependent on the financial support.
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8
Q

WHO ARE/ARE NOT DEPENDENTS

Overview

A

General - S.7 CLA

1) Divorced wives
2) Co-habitants wife
3) Spouse from customary marriage
4) Siblings
5) Post-humous children
6) Illegitimate children
7) Adopted children
8) Disabled siblings

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9
Q

WHO ARE/ARE NOT DEPENDENTS

Divorced wives

A

Payne-Collins v Taylor Woodrow:

  • divorced wife is not entitled to pursue a dependency claim.
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10
Q

WHO ARE/ARE NOT DEPENDENTS

Co-habitants wife

A

K v JMP Co. Ltd:

  • The co-habitant wife is not entitled to pursue a dependency claim she is not legally married to the deceased;
  • H/ever, the 3 children are entitled to dependency claim.
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11
Q

WHO ARE/ARE NOT DEPENDENTS

Spouse from customary marriage

A

Tan Siew Sin v Nick Abu Dusuki:

  • Spouse through customary marriage is not a dependent;
  • This is so unless the marriage is subsequently registered under LPA.
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12
Q

WHO ARE/ARE NOT DEPENDENTS

Siblings

A

Chan Ching Ming v Lim Yoke Eng:

  • Siblings do not fall within the definition of dependents under S.7.
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13
Q

WHO ARE/ARE NOT DEPENDENTS

Post-humous children

A

1) Maroyayee & Anor v Nadarajan:
- Posthumous child is included within definition of dependents.
2) cf. Chin Yoke Teng:

  • there is no cause of action for an unborn child.
  • i.e. no claim can be brought on behalf or for an unborn child.
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14
Q

WHO ARE/ARE NOT DEPENDENTS

Illegitimate children

A

K v JMP Co. Ltd:

  • Illegitimate children are dependents & entitled to claim for loss of support.
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15
Q

WHO ARE/ARE NOT DEPENDENTS

Adopted children

A

Zulkifli Ayob v Velasini Madhavan:

  • Adopted children can only be dependents if they are legally adopted.
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16
Q

DERIVATIVE ACTION

meaning & scope

A

Sambu Pernas Construction & Anor v Pitchakkaran:

P must satisfy conditions:

  • P has to prove that the death of the deceased was caused by “wrongful act, neglect or default”.
  • P must show that deceased can maintain an action & recover damages for the injury if he is not dead.
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17
Q

PRE-CONDITIONS FOR CLAIMS FOR LOSS OF SUPPORT

The law

A

S.7(3)(iv)(a)(a) CLA

  • Age 60 or below;
  • Receiving earnings.
18
Q

PRE-CONDITIONS FOR CLAIMS FOR LOSS OF SUPPORT

Continuous support after the death

A

Yap Ami v Tan Hui Pang:

  • If there is continuous support from the deceased’s estate after the death, claim will fail as there is no actual pecuniary loss of support.
19
Q

PRE-CONDITIONS FOR CLAIMS FOR LOSS OF SUPPORT

Loss must be in personal capacity

A

Chan Chin Ming v Lim Yoke Eng:

  • Claim to include mother’s spendings to her children will fail because claimable loss are only those which in her personal capacity.
20
Q

PRE-CONDITIONS FOR CLAIMS FOR LOSS OF SUPPORT

prospective loss of dependency

A

Latif Che Ngah & Anor v Maimunah Zakaria:

  • Although P’s claims is not substantiated, the amount awarded was reasonable & fair.
21
Q

PRE-CONDITIONS FOR CLAIMS FOR LOSS OF SUPPORT

directly connected to family relationship

A

Burgess v Florence Nightingale Hospital for Gentlewoman:

  • Husband cannot claim for loss of services from his wife as dancing partner.
  • Claimable loss is only those which sustained as a dependent on living expenses.
22
Q

PRE-CONDITIONS FOR CLAIMS FOR LOSS OF SUPPORT

loss must directly connected to family relationship

A

Burgess v Florence Nightingale Hospital for Gentlewoman:

  • Husband cannot claim for loss of services from his wife as dancing partner.
  • Claimable loss is only those which sustained as a dependent on his wife’s contribution to the living expenses.
23
Q

SOURCE OF INCOME

Overview

A

1) Illegal income
2) Pension
3) Prospect of increment
4) Additional savings
5) EPF

24
Q

SOURCE OF INCOME

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.
25
Q

SOURCE OF INCOME

Pension - whether ‘earning’

A

Lee In Fong v Zaharah bte Johan:

  • Pension cannot be classified as earning;
    cf. 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”.
26
Q

SOURCE OF INCOME

Prospect of increment

A

1) Pre-amendment position - Parvathy v Liew Yoke Khoon:
- loss of dependency awarded took into account the prospect increment of the deceased.
2) Post-amendment position - S.7(3)(iv)(b):
- No prospect of increment shall be taken into account.
3) Application - 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.
4) Application - 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.
27
Q

SOURCE OF INCOME

Additional savings

A

Nance v British Columbia Electric Railway Co Ltd:

  • savings should be added to the figure for dependency claims.
28
Q

SOURCE OF INCOME

EPF

A

Singapore Bus Service v Lim Soon Yong:

  • Principles in Nance also applicable to deceased’s contributions to EPF, which would have continued if he had not been killed.
29
Q

COMPUTATION OF LOSS

Overview

A

Multiplicand:

1) Conventional mode
2) Percentage mode

Multiplier:

1) The law

30
Q

COMPUTATION OF LOSS

Multiplicand - Conventional mode

A

1) How - Ahmad Nordin bin Haji Maslan v Eng Ngak Hua:

  • setting out details on each item of pecuniary benefit received by each dependant collectively;
  • requires careful itemization of each benefit which the deceased has provided for.

2) Shared expenses - Minachi v Mohd Yusof bin Zakaria:
- will only deducted if a logical division of the expenses can be made.

31
Q

COMPUTATION OF LOSS

Multiplicand - Percentage mode

A

1) How - Rebecca Matthew & Ors v Syarikat Kerjasama Serbaguna Gema Wong Siong Bhd:
- Involves taking account what the deceased would have been likely to have available to save, spend or distribute after meeting the costs of his living.
2) Living expenses - Harris v Empress Motors:

  • depends on deceased’s standard of life;
  • sum spent exclusively on others will not form part of his living expenses.
32
Q

COMPUTATION OF LOSS

Multiplier - the law

A

S.7(3)(iii)(d):

  • below 30 y/o: 16 years
  • 31-59 y/o: 60 - age / 2
33
Q

MITIGATION OF LOSSES

Whether dependents are required to mitigate

A

Lim Chai Oon v Normah bte Ismail:

  • There is no necessity for dependents to mitigate their losses.
34
Q

DEDUCTIONS

Overview

A

1) Contributory negligence
2) Pension & gratuity
3) Insurance
4) Donations & gifts

35
Q

DEDUCTIONS

Contributory negligence

A

Rubaidah Dirin v Ahmad Ariffin:

  • if the deceased was contributorily negligent, dependents can only recover proportion attributed to D’s blame.
36
Q

DEDUCTIONS

Pension & gratuity

A

1) The law - S.7(3)(i)(c)
- 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.
37
Q

DEDUCTIONS

Insurance

A

1) The law - S.7(3)(i)(a)
- no deduction for insurance;
2) Application - Ward v MAS:
- insurance benefit was not deductible both under S.28A & common law.

38
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.
39
Q

APPORTIONMENT

Apportionment between dependents

A

Ahmad Nordin bin Haji Maslan v Eng Ngak Hua:

  • To the widow would be more since she had to look after the children & provide them with necessities;
  • Share of the children was to be deposited to the Public Trustee until they reach the age of majority.
40
Q

ESTATE CLAIMS

The law

A

S.8 CLA

41
Q

ESTATE CLAIMS

Who can bring claims & limitation

A

S.8 CLA

42
Q

ESTATE CLAIMS

What can be claimed

A

1) Tham Meng Fatt v Utam Singh Omnibus Co Ltd:
- funeral expenses
2) Tham Meng Fatt v UTam Singh Omnibus Co Ltd:
- cost for extraction of probate / LA

GP Tort (9 decks)

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