What is a claim for dependency?
As defined under section 7 of the Civil Law Act[1],
claim for dependency is brought for the benefit of dependants to compensate
them for loss of support as a result of the deceased’s death. It is a claim under section 7(1) of the Act for
lost support brought by the dependants of a deceased person[2]. Basically, loss of
support is the financial loss suffered by the dependant. It is not limited to
food or sustenance but should equate with the pecuniary benefit the plaintiff
receives from the deceased so as to enable him/her lead a certain life.
Section 7(2) and section 7(11)[3]
of the Act precisely states dependants to include: husband, wife, parent, child
of the deceased. Father, mother and grandparents are included in the definition
of parents in the said provision. While child, it includes son, daughter,
grandchild, illegitimated and adopted child of the deceased. As in the case of Zulkifli
Ayob v Velasini K Madhavan & Anor[4],
the court held that the dependants, for the purpose of section 7 of the
Act, are wife, husband, parent and child of the deceased. An adopted child
cannot therefore be a dependant unless the child is a legally adopted child.
It is vital to know
that a posthumous child is included within the definition of dependant. This
can be seen in the case of Mariyayee
& Anor v Nadarajan[5],
where in this case, the
plaintiffs brought an action on behalf of the estate and dependants of the
deceased who sustained fatal injuries in an accident involving a bicycle ridden
by the deceased and a motor car driven by the defendant on June 29, 1972, in
Gopeng Road, Ipoh. On that day, the deceased was riding his bicycle from the direction
of Ipoh towards Gopeng when a collision took place near the 1st milestone at
Gopeng Road between his bicycle and a motor vehicle owned and driven by the
defendant and proceeding in the same direction. The deceased left a widow and
four infant children including a son born posthumously on whose behalf the
plaintiff claimed for special and general damages. It was held that on the
balance of probabilities, the defendant was negligent and wholly liable for the
collision in which the deceased died, the posthumous child was entitled to
claim relief as a dependant and in the circumstances an allowance of $20 a
month for his support was fair and proper and general damages in the sum of
$21,600 plus interest at 6% per annum should be awarded to the deceased's widow
and children.
Siblings i.e. brothers and sisters are not included[6]
as in the case of Chan Chin Min v Lim Yok
Eng[7],
where out of the RM750 allegedly contributed by the deceased, the direct
benefit derived by the plaintiff, who was the mother of the deceased, was only
RM375 as the rest was used for the benefit of the sister of the deceased who
was not a dependant under the Act. It is the actual loss to the dependant that
has to be taken into account. A divorced wife is not a dependant but the wife
who deserts the husband prior to his death can only claim for dependency if she
shows a significant prospect of reconciliation. This can be seen in the case of
Payne-Collins v Taylor Woodrow[8],
where the deceased’s divorced wife attempted to pursue a dependency claim
upon his death. The court held that a divorced wife is not entitled to do so
under the Fatal Accidents Act 1846.
A divorced wife is not being a dependant as opposed to
wife who deserted her husband prior to his death, reference could be made to
the case of Davis v Taylor[9].
In this case, the wife committed adultery and deserted the husband five weeks
before his death. All attempts of reconciliation failed shortly before his
death and the deceased instructed his lawyers to institute legal proceedings.
Upon his death, she instituted a claim for dependency. Lord Reid stated as
follows: “She claims under sec 2 of the Fatal Accidents Act 1824. In order to
succeed she must prove that she has suffered ‘injury’ resulting from her
husband’s death. Admittedly the injury must be of a financial character. In the
ordinary case where the spouses were living together on the husband’s earnings,
what the widow loses is the prospect of future financial support. There can be
no question of proving as a fact that she would have received a certain amount
of benefit. No one can know what might have happened had he not been killed.
But the value of the prospect, chance or probability of support can be
estimated by taking all significant factors into account”. The court decided
that the test for a claim by a dependant under the English Fatal Accidents Act
1824[10]
was whether there was a reasonable expectation of pecuniary benefit from the
deceased, which meant in the case of a deserting widow, who had forfeited any
right to maintenance, she had to show that there was some significant prospect,
as opposed to a mere speculative possibility, of reconciliation with her
husband had he lived; and that in the present case since the plaintiff had
failed to establish such a prospect of reconciliation, her claim failed.
Perhaps in addressing the issue of ‘who are
dependant?’ in the context of a wife, reference should be made to the position
of a ‘wife’ married under customary rights. In other words, does a ‘wife’
married under customary rights fall within the definition of a wife in section
7(2)? In the case of Chong Sin Sen v Janaki a/p Chellamuthu[11],
isteri yang sah kepada Muniappa Pillai a/l Marith Muthoo, where the
plaintiff, the widow of the deceased who was killed in a road accident, brought
an action for loss of support against the defendant pursuant to section 7(2) of
the CLA 1956[12].
The defendant contended that plaintiff was not the lawful wife of the deceased
because her marriage to the deceased contravened the provisions of the Law
Reform (Marriage and Divorce) Act 1976. The marriage was not solemnised
according to the 1976 Act as the deceased and the plaintiff had only undergone
a customary marriage on August 31, 1991. The court held that the respondent has
the locus standi to commence the action against the defendant. The term
‘wife’ has not been defined in the CLA, the word should be given its natural
meaning without any reference to the provisions of the 1976 Act as there is no requirement
in the CLA that the term as found in section 7(2) of the CLA should be confined
to a woman whose marriage was solemnised and/or registered under any prevailing
Act relating to marriages and divorce. Still on the case of Chong Sin Sen
v Janaki a/p Chellamuthu, isteri yang sah kepada Muniappa Pillai
a/l Marith Muthoo, the court went further and stated that in the
absence of express elucidation by the legislature, the word ‘wife’ found in section
7(2) of the CLA should not be restricted to a woman whose marriage has been
solemnised and registered pursuant to the provisions of any prevailing Act
relating to marriages and divorce. The Married Women Act 1957 provides that a
‘married woman’ includes any woman who has undergone a customary marriage and therefore
that term would include a ‘wife’ found in section 7(2). Therefore the
respondent having undergone a customary marriage with the deceased is a ‘wife’
and therefore has the locus standi to bring the action on behalf of the
deceased’s estate. In Tan Sai Hong v Joremi bin Kimin &
Anor[13],
it was held that where the same question came up involving a Chinese
customary marriage. The court held that section 7(2) of the Civil Law Act,
merely states inter alia, that an action under section 7(1) of the Act may be
brought for the benefit of a wife of a deceased. The section does not seek to
differentiate nor make any distinction between a lawful and unlawful wife. Section
2 of the Income Tax Act, 1967 however defines a ‘wife’, as being a woman who is
regarded by any law or custom, as the wife of a man. On the facts, the
plaintiff admitted that she and the deceased went through a Chinese customary
marriage which was never registered and the plaintiff and the deceased had
lived harmoniously as husband and wife and had children out of that union.
While loss of support, support means the pecuniary
provision which furnished a livelihood, a source of means of living,
subsistence, sustenance and maintenance. Loss of support is for all practical
purposes translated into financial loss sustained by a dependant. The amount
that makes up ‘loss of support’ is the amount the deceased would have given his
dependants during his lifetime and this amount would be dependant primarily on
the earnings of the deceased less his living expenses.
The test for loss of support is the direct benefit to
the claimant. The claimant need not prove that he/she was totally dependant on
the deceased’s contribution for his/her every day sustenance. In Muhamad
bin Hashim v Teow Teik Chai[14],
the deceased contributed RM700 towards the family. The father (who was
claiming as a dependant) was earning RM500 and he was responsible for providing
for two families. He needed the supplementary contribution of the deceased to
provide for the families including himself and the court held that as a member
of the family of the deceased he would have derived some direct benefit and awarded
RM250 for eight years. In Chan Chin Min v Lim Yok Eng[15],
it was decided that where out of the RM750 allegedly contributed by the
deceased, the direct benefit derived by the plaintiff, who was the mother of
the deceased, was only RM375 as the rest was used for the benefit of the sister
of the deceased who was not a dependant under the Act. It is the actual loss to
the dependant that has to be taken into account. In Yap Ami v Tan
Hui Pang[16],
where the court did not award any damages for dependency as the deceased before
his death was an active partner in a firm and as such partner was earning
RM1,450 per month and after his death that very sum was paid to the dependants
as the deceased’s share of the profits. The dependants, therefore, did not
suffer any loss.
To sum it all up, if claimant wants to claim for dependency,
the claimant needs to be a person qualified under section 7(2) and he must
prove that he has suffered ‘loss of support’ and the loss must be directly
connected to a family relationship. Thus if the loss is due to contractual
relationship, it cannot be claimed. In the case of Burgess v Florence
Nightingale Hospital[17],
the husband and wife were both professional dancing partners and the wife died
due to the negligence of a surgeon. The court held that the basis of damages
was that the benefit must be a benefit arising from the relationship as husband
and wife, and allowed a modest sum for the deceased wife’s contribution to the
joint living expenses but the claim for loss of services of the wife as a
dancing partner was rejected.
In addition to the above, reference could also be made
to the case of Maylon v Plummer[18],
where the deceased operated a company which was ‘a one- man business’. His wife
was the director and secretary to the company. Her salary for the above duties
was an inflated sum which was banked into her husband’s account together with
his salary for the general benefit of the family. The husband died in an
accident and the wife claimed dependancy. The court held that: “... the salary
which the plaintiff received via her husband’s bank account and which was used
for the benefit of the plaintiff and her children was derived solely from the
relationship of husband and wife between her and the deceased. The salary and
the benefits were lost on the termination of the relationship by the death of
the husband. Still on the case of Maylon v Plummer[19],
in assessing the actual loss, the court deducted from the salary which was
banked in, the market value of her services as director and secretary. The
balance represented the benefit derived from the plaintiff’s relationship to
the husband as his wife.
Loss of future earning
Section 7(3)(iv)(a) provides that to establish a claim
for loss of future earnings, it must be shown that:
(i) the deceased was aged below 55 at the time of
accident (as can be seen in the case of Lee In Fong v Zahara
Bte Johan[20],
where the court allowed a claim by the dependants of the deceased who
was 63 years. The court held that if the deceased who is over 55 years old but
in receipt of pensions which he used to support his family, the pension would
not be considered ‘earnings’ for the purpose of dependancy under sec
7(3)(iv)(a) and therefore the age barrier in the sec would not apply). For a
deceased, who had attained the age of 55 at the time of his death, his loss of
earnings for any period after his death shall not be taken into account. For a
deceased aged 55 years and above, there is deemed to be no financial support
provided to dependants and therefore there is no dependency, in the eyes of the
law.
(ii) it must be proved that or admitted that the
deceased was in good health but for the injury that caused his death. Good
health us not defined by the Act.
(iii) the deceased must have been receiving earnings
by his own labour or other gainful activity prior to his death. ‘Prior’ to his
death is synonymous with ‘before’ and it was held in Dirkje that
‘before’ means ‘at the time.’ The deceased must therefore be earning at the
time of his death/her death. If the deceased was on no pay leave, temporarily
laid off etc at the time of the accident, his earnings will be treated as nil
and therefore, his dependants will not be entitled to loss of support.
Considering everything, if the above 3 conditions are
satisfied, the next step is to calculate the appropriate multiplier and multiplicand.
Bereavement
This is a new head of damages introduced into the
dependency claim by the amendments[21].
It is available only to:
(a) spouse of the person deceased;
(b) parents of the deceased person, who was a minor,
at the time of death and who never married. For claim for bereavement, the
plaintiff must prove that the deceased was a minor and that he was never
married[22].
It can never be presumed that where a person is a minor, he has never been
married.
(c) the amount of the damage provided by the statute
is RM10,000;
(d) the sum of RM10,000 awarded as damages for
bereavement to the parents shall be divided equally between them. Perhaps it is
vital to note that if there are two lawful widows, especially in cases
involving Muslims, would both of them be entitled to RM10,000 each?
In the case of Noor Famiza bte Zabri & Anor v
Awang bin Muda & Anor[23],
the deceased, the first plaintiff’s
husband, was killed in an accident which was found to have been negligently
caused by the defendant. The first plaintiff, as the spouse of the deceased,
was granted RM10,000 for bereavement under section 7(3A) read with section
7(3B)(a). In Santhanaletchumy a/p Subramaniam v Zainab bte
Saad & Anor[24],
the High Court held that bereavement is not part and parcel of the general
damages.
Another case is of Hooi Seong (The Beneficiary of Hooi Teck Weng, Deceased) v Ooi Pay
Yeong (The Legal Representative of the Estate of Ooi Kok Teong, Deceased)[25],
where it was reiterated that the court should only allow a claim for
bereavement where it has been satisfied as to the marital status of the
deceased. In Ibrahim Ismail & Anor v Hasnah Puteh Imat & Anor & Anor
Appeal[26],
the Court of Appeal on appeal reduce the damages for bereavement since there
was a finding of contributory negligence against the deceased. It is trite that
the effect of a finding of contributory negligence is to entitle a defendant to
a proportionate reduction of the damages awarded to a plaintiff.
Reference
1.
Balan,
P. “Journal of Malaysian and Comparative Law.” Damages for Personal Injuries
and Causing Death: A Critical Survey. Accessed May 12, 2015. http://www.commonlii.org/my/journals/JMCL/2004/3.html#Heading47
2.
Hafiz,
Azrin. “Fatal Claims – For revision purposes only.” Slideshare. PowerPoint.
2007. 12 May 2015.
3.
Mohamed
Nafees, Seeni Mohamed. “Fatal Accidents.” PowerPoint presentation. Northern
University of Malaysia, Sintok, Kedah, Malaysia.
4.
Civil Law Act 1956 (Act 67): As at 20th
April 2001.
Petaling Jaya, Selangor Darul Ehsan: International Law Book Services: 2001.
[2] Balan, P. “Journal of Malaysian and
Comparative Law.” Damages for Personal Injuries and Causing Death: A Critical
Survey. Accessed May 12, 2015. http://www.commonlii.org/my/journals/JMCL/2004/3.html#Heading47
[6] Balan, P. “Journal of Malaysian and
Comparative Law.” Damages for Personal Injuries and Causing Death: A Critical
Survey. Accessed May 12, 2015. http://www.commonlii.org/my/journals/JMCL/2004/3.html#Heading47
[22] Hafiz, Azrin. “Fatal Claims.” Fatal Claims.
Accessed May 12, 2015. http://www.slideshare.net/azrinhafiz/fatal-claims
Thank You For the info
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