Chapter 8 - Fatal Accident Claims Flashcards
FATAL ACCIDENT CLAIMS
Overview
1) General principles
2) Dependency claims
3) Estate claims
GENERAL PRINCIPLES
Types of claims
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.
GENERAL PRINCIPLES
Limitation for dependency claims
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.
DEPENDENCY CLAIMS
Overview
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
DEPENDENCY CLAIMS
Meaning & purpose
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.
DEPENDENCY CLAIMS
Meaning of loss of support
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.
DEPENDENCY CLAIMS
Test for loss of support
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.
WHO ARE/ARE NOT DEPENDENTS
Overview
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
WHO ARE/ARE NOT DEPENDENTS
Divorced wives
Payne-Collins v Taylor Woodrow:
- divorced wife is not entitled to pursue a dependency claim.
WHO ARE/ARE NOT DEPENDENTS
Co-habitants wife
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.
WHO ARE/ARE NOT DEPENDENTS
Spouse from customary marriage
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.
WHO ARE/ARE NOT DEPENDENTS
Siblings
Chan Ching Ming v Lim Yoke Eng:
- Siblings do not fall within the definition of dependents under S.7.
WHO ARE/ARE NOT DEPENDENTS
Post-humous children
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.
WHO ARE/ARE NOT DEPENDENTS
Illegitimate children
K v JMP Co. Ltd:
- Illegitimate children are dependents & entitled to claim for loss of support.
WHO ARE/ARE NOT DEPENDENTS
Adopted children
Zulkifli Ayob v Velasini Madhavan:
- Adopted children can only be dependents if they are legally adopted.
DERIVATIVE ACTION
meaning & scope
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.
PRE-CONDITIONS FOR CLAIMS FOR LOSS OF SUPPORT
The law
S.7(3)(iv)(a)(a) CLA
- Age 60 or below;
- Receiving earnings.
PRE-CONDITIONS FOR CLAIMS FOR LOSS OF SUPPORT
Continuous support after the death
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.
PRE-CONDITIONS FOR CLAIMS FOR LOSS OF SUPPORT
Loss must be in personal capacity
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.
PRE-CONDITIONS FOR CLAIMS FOR LOSS OF SUPPORT
prospective loss of dependency
Latif Che Ngah & Anor v Maimunah Zakaria:
- Although P’s claims is not substantiated, the amount awarded was reasonable & fair.
PRE-CONDITIONS FOR CLAIMS FOR LOSS OF SUPPORT
directly connected to family relationship
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.
PRE-CONDITIONS FOR CLAIMS FOR LOSS OF SUPPORT
loss must directly connected to family relationship
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.
SOURCE OF INCOME
Overview
1) Illegal income
2) Pension
3) Prospect of increment
4) Additional savings
5) EPF
SOURCE OF INCOME
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.
