DIFFICULTIES SUFFERED BY ACCIDENT VICTIMS
This article highlights the sufferings of victims of motor vehicle accidents due to the amendments to Civil Law Act 1956 by Amendment Act A602 in the year 1984.
1. It has been often said that about 50 to 60 per cent of the litigation work handled by lawyers somehow arises due to road accident claims commonly called running down cases. The main claims would be either loss of dependancy or injury claims or both. Prior to the introduction of major amendments by the Amendment Act No: A 602 amending Section 7 and also introducing the new Section 28A of the Civil Law Act 1956 (the CLA) the law for loss of dependancy and injury claims was largely governed by common law based on English law and case precedents. The amendments to CLA made by the Amendment Act No: 602 came into force on 1st October 1984. Sixteen years have passed and numerous judicial decisions have been made on the interpretation of these sections by Judges of High Court, Supreme Court and now Court of Appeal and Federal Court. 2. The question one often asks or is often confronted with is that, are these laws and their interpretations and applications fair to all concerned, in particular to the dependants whose bread winner has been killed or the accident victim who has been seriously injured or maimed? 3. In claims of this nature two elements need to be looked into. The first is the question of negligence and the other is damages which encompass bereavement, loss of dependancy, damages for pain and suffering loss of past and future earnings and other special damages. I shall not deal with the question of negligence in this article as it is still completely covered by common law principles and in my humble opinion the state of the law in our country as in many other common law jurisdictions seems to be satisfactory. Negligence in each case * Advocate & Solicitor, High Court of Malaya
The Journal of the Malaysian Bar
Difficulties Suffered By Accident Victims
(2000) XXVIX No 3
depends on its own facts and circumstances though judicial precedents do play an important role in maintaining consistency. Depending upon the question of negligence commonly called “liability” the claimant may get hundred percent of the claim or it may be reduced by 10, 20, 50 or even 80 per cent as contributory negligence or may even be dismissed depending on the facts of each case. 4. The element of DAMAGES is now the greatest concern of all lawyers who are conversant in this area of the law. I shall deal with loss of dependancy, bereavement and injury claims separately.
LOSS OF DEPENDANCY
5. Loss of Dependancy claims brought by spouse, children and parents of the deceased often arise due to the death of victims in motor vehicle accidents. In cases where the victim suffers personal injuries then the victim himself brings the claim for damages for pain and suffering and loss of earnings and other special damages suffered by him. 6. Prior to the amendments to CLA, when a person is killed in a motor vehicle accident, subject to liability, the parents, wife (or husband) and children of the deceased could claim damages for loss of dependancy or loss of support as a result of the death of the bread winner. The aggrieved family members could also claim a sum of RM6,000-00 or so as general damages for loss of expectation of life (as value of the life lost) and funeral expenses ranging from RM500-00 to RM5,000-00. In order to arrive at a fair and reasonable amount as damages the dependants had to prove and convince the Court two factors called “MULTIPLICAND” and “MULTIPLIER”.
7. The MULTIPLICAND was arrived at, after establishing the earnings or the earning potentials or earning capacity of the deceased and out of that figure, the sum alleged to have been given to the dependants would become the multiplicand. To cite an example, if the deceased was...