APRIL 6 — The video of the motorcyclist who was killed after a car driven by a man allegedly high on drugs and alcohol rammed into him in Klang, Selangor on March 29 reminds me of an accident that happened almost 50 years ago.
On July 8, 1978 at about 12.30am, YKS was riding his motorcycle along Tambun Road, Ipoh from the direction of Ipoh town towards Tambun. He was on his way home in Ipoh Garden. He did not reach home. He died as a result of an accident which involved a collision between the motorcycle he was riding and a car driven by YC.
The parents of YKS brought a fatal accident claim arising from the death of YKS in the road accident. The learned trial judge found YC solely to blame for the accident.
There was no eyewitness to the accident except YC, who was not able to give a clear picture of how the accident happened. He could not remember how the accident happened. The learned trial judge therefore had to rely very much on the sketch plan.
According to the learned judge, from the sketch plan, it was clear that the motorcar was travelling at a great speed. The brake marks made by the left and right tyres of the car driven by YC showed that the car had travelled diagonally across the opposite side of the road from right to left.
The probable conclusion was that the collision occurred when the car was on the opposite side, encroaching into the path of the motorcycle ridden by YKS.
Such conclusion was supported by the presence of broken pieces of glass and the wiper of the car on the opposite side of the road. The impact of the collision must have been great as to cause YKS’s body to be thrown to YC’s side of the road. The motorcycle was also thrown to YC’s side of the road by the force of the collision.
There was evidence that at the time when the collision took place , YC was driving under the influence of drink. His blood specimen was taken and sent to the chemist for analysis who found that the alcohol content found in the blood was very high. YC was under the influence of alcohol and was not in a safe condition to drive the motorcar. (See Wong Kum Keong v Yeap Chooi [1987] 1 MLJ 290)
The parents’ claim is known in law as a dependency claim, which is a right of action provided by statute — that is, the Civil Law Act 1956 (CLA). Section 7(1) CLA says that whenever the death of a person is caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof , the party who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death has been caused under such circumstances as amount in law to an offence under the Penal Code.
Every action under Section 7(1) shall be for the benefit of the deceased dependents — that is, the wife, husband, parent, child and any person with disabilities under the care, if any, of the deceased person — and shall be brought by and in the name of the executor of the person deceased — Section 7(2).
However, the damages which the party who shall be liable to pay to the dependents shall be such as will compensate the dependents for any loss of support suffered together with any reasonable expenses incurred as a result of the wrongful act, neglect or default of the party liable — Section 7(3).
The purview and purport of Section 7 CLA came before the Federal Court in the case of Ketua Polis Negara & Ors v Nurasmira Maulat bt Jaafar & Ors (minors bringing the action through their legal mother and next friend Abra bt Sahul Hamid) and other appeals [2018] 3 MLJ 184.
Leave to appeal to the apex court was granted on several questions of law, two of which were:
- Whether exemplary damages can be awarded in claims founded on Section 7 CLA?
- Whether general damages for pain and suffering can be awarded to a Plaintiff in a dependency claim brought under Section 7 CLA?
In a landmark decision, by a majority (4:1), the Federal Court ruled as follows:
Section 7 CLA enabled an action to be brought against a person whose wrongful act, neglect or default injured another and resulted in the death of the injured person if such wrongful act, neglect or default would have entitled the injured person to maintain such an action and recover damages in respect of such injury had the injured person not died.
At the same time an action under Section 7 CLA could only be brought by the specified dependants and the estate of the deceased person in their own right. In addition, Section 7(3) clearly specified that the specified dependants could only claim damages of a compensatory nature for loss of support.
Thus, an award of exemplary damages under Section 7 was clearly contrary to the legislature’s intention in enacting that section. Hence, an express provision disallowing such an award was not required in Section 7 of the Act CLA and exemplary damages could not be awarded in claims founded on Section 7.
Where an action was a pure dependency claim under Section 7 CLA, an order of the court for exemplary damages to be paid by the defendant was an error in law.
Section 7 enabled the specified dependents to claim for damages in their own right to compensate them for loss of support due to death. As such, a claim for pain and suffering by the plaintiff was also beyond the purview of Section CLA.7 of the Act. CLA. For loss other than pecuniary loss, the only damages that Section 7 allowed to be claimed were damages for bereavement.
The sum that can be awarded as damages for bereavement is now RM30,000 under Section 7(3A), and shall only be for the benefit of (a) the spouse of the person deceased; (b) the child of the person deceased; and (c) the parents of the person deceased – Section 7(3B). The Yang di-Pertuan Agong may from time to time by order published in the Gazette vary the sum — Section 7(3D).
The gist of the decision is this: damages awarded pursuant to a dependency claim under Section 7 CLA is only compensatory in nature. (Emphasis is mine)
There have accordingly been calls for reforms to the CLA relating to dependency claims. So, it’s not just about reforms of the penal law relating to the death of a person caused by a wrongful act, neglect or default in a motor accident.
It’s about the worth of a life.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
You May Also Like