Highlights

  1. One can claim Personal Injury (“the Plaintiff”) for injuries caused by others’ negligence.
  2. The Plaintiff can claim for damages, the compensation which is compensatory in nature.
  3. There are two types of damages which the Court will take into consideration:-
    (a) Special Damages
    (b) General Damages
  4. Special Damages must be quantified and to be proved in Court.
  5. General Damages are more intangible in nature and more difficult to quantify.
  6. The Court will not take into consideration certain sums or payment when assessing damages.
Understanding what is Personal Injury Claim

 

Q1. What is Personal Injury Claim?

Answer:

According to Black’s Law Dictionary, 5th Edition, Personal Injury means a hurt or damage done to a man’s person, such as a cut or bruise, a broken limb, or the like, as distinguished from an injury to his property or his reputation…

Q2. What is the objective of damages?

Answer:

In the case of Ong Ah Long v Dr.S. Underwood [1983] 2 MLJ 324, it highlights the objective of damages is that they are to be compensatory in nature. Syed Agil Barakbah FJ held that damages for personal injuries are not punitive and still less a reward. They are simply compensation that will give the injured party reparation for the wrongful act and for all the natural and direct consequences of the wrongful act, so far as money can compensate.

Q3. What damages the Plaintiff can claim under Personal Injury Claim?

Answer:

In the case of Sam Wun Hong v Kader Ibramshah [1981] 1 MLJ 295, Mohamed Azmi J held that there are two classes for damages in Personal Injury Claim. The first one is special damages which has to be specifically pleaded and the second one is general damages which does not have to be specifically pleaded. The Plaintiff would have to prove that he has suffered for him to claim both damages.

Q4. What is Special Damages?

Answer:

Special damages represent the Plaintiff’s actual pecuniary loss between the date of the accident and the date of the award or settlement. I.e. medical expenses, nursing fees, transport expenses to and from hospital, personal items damaged in the accident as well as pre-trial loss of earnings.

It must be noted that all special damages must be specifically pleaded and proved by evidence.

Q5. What is General Damages?

Answer:

General damages represent the loss to the Plaintiff that cannot be precisely quantified. Heads of general damages at common law include pain and suffering and loss of amenity, future loss of earnings, loss of capacity and future care expenses.

Q5(a). Can I claim for pain and suffering and loss of amenity?

Answer:

If the injured party becomes unconscious right after the accident, no award for pain and suffering but an award for loss of amenity may be awarded – Thangavelu v Chia Kok Bin [1981] 2MLJ 277.

Q5(b). Can I claim loss of future earnings?

Answer:

S28A(2)(c) of the Civil Law Act 1956 (CLA 1956) provides that in awarding damages for loss of future earnings the Court shall take into account certain consideration:-

a. The Plaintiff must be below 60 years old;

b. The Plaintiff must be receiving earnings at the time of the injury; and

c. The living expenses of the Plaintiff to be deducted in the award.

Q5(c). Can I claim loss of earning capacity?

Answer:

This is applicable where there is a real risk that the Plaintiff will lose his present job before the estimated end of his working life – Azizi Amran v Hizzam Che Hassan [2006] 3 CLJ 821.

Q5(d). Can I claim future care expenses?

Answer:

You may claim for:-

i. future nursing care (Udhaya Kumar a/l Karappusamy & Anor v Penguasa Hospital Daerah Pontian & Ors [2004] 2 MLJ 661);

ii. future medical care (Abdul Ghani bin Hamid v Abdul Nasir bin Abdul Jabbar & Anor [1995] 4 CLJ 317);

iii. Care by family member (Ahmad Daman Huri v Koo Chin Yau [1990] 3 MLJ 53);

iv. Household work by husband (Chong Pik Sing & Anor v Ng Mun Bee & Ors [1985] 1 MLJ 433);

v. Household work by mother (Wong Li Fatt William (an infant) v Haidawati bte Bolhen [1994] 2 MLJ 497).

General Questions:

 

Q6. The Court will not take into consideration certain sums or payment when assessing damages.

Answer:

S28A(1) and (2) CLA 1956 provides that in assessing damages recoverable in respect of personal injury which does not result in death, there shall not be taken into account the following for deduction:-

a. any sum paid or payable under any contract of assurance or insurance;

b. any pension or gratuity; and

c. any sum paid or payable under any written law relating to the payment of any benefit or compensation.

Q7. What if I am a young children who is not earning at the time of the accident?

Answer:

Unfortunately the young children who are not earning at the time of the accident would not be able to claim for loss of future earnings nor earning capacity as illustrated in the case of Tan Kim Chuan v Chandu Nair [1991] 1 MLJ 42.

Q8. What if I have been receiving illegal income at the time of the accident?

Answer:

The Court will not take into consideration any illegal earnings because it is against public policy as illustrated in Tan Lye Seng & Anor v Nazori The & Anor [1998] 3 CLJ 466.

Q9. What if I contribute to my personal injury?

Answer:

Damages will be reduced if contributory negligence is established under Personal Injury Claim.

THIS FAQ IS PREPARED AND PUBLISHED BY GENERAL LITIGATION, CORPORATE INSOLVENCY AND APPELLATE DEPARTMENT OF THE DISPUTES RESOLUTION OF MESSRS GAN & ZUL, ADVOCATES & SOLICITORS.
Prepared by:

Ben Lee Kam Foo (Partner)
Head of Dispute Resolution
Arbitrator & Adjudicator
Fellow of ADR, AIAC
Cross Border Taxation Planning

Shafihani Binti Md Ali (Associate)
General Dispute Resolution
Appellate Division
Contractual, Land and Commercial Disputes
Pre and Post Liquidation Disputes

Gan & Zul is an established legal firm in Malaysia which consists of experienced litigation lawyers. Our firm provides a wide spectrum of legal services covering various aspects of laws includes dispute resolution, debt recovery, land, bankruptcy, insolvency and corporate dispute. We are also a firm construction lawyers based in Kuala Lumpur.
If you have any queries or require additional information, kindly email us at kul.litigation@ganzul.com or call us at 03-2242 3836

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