Monday 10 April 2017

Claim for Dependency

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.



[1] Section 7 of Civil Law Act
[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
[3] Section 7(2) and section 7(11) of Civil Law Act
[4] [2000] 1 MLJ 593
[5] [1975] 2 MLJ 267 HC
[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
[7] [1994] 3 CLJ 687 SC
[8] [1975] QB300
[9] [1974] AC 207
[10] Fatal Accidents Act 1824
[11]  [1997] 3 AMR 2217
[12] The Civil Law Act 1956
[13] [1998] 1 AMR 522
[14] [1996] 1 CLJ 615
[15] [1994] 3 CLJ 687 SC
[16]  [1982] 2 MLJ 316
[17] [1955] 1 QB 349
[18] [1963] 2 All ER 344
[19] [1963] 2 All ER 344
[20] [1992] 4 CLJ 2108
[21] Section 7(3B) of the Civil Law Act 1956
[22] Hafiz, Azrin. “Fatal Claims.” Fatal Claims. Accessed May 12, 2015. http://www.slideshare.net/azrinhafiz/fatal-claims
[23] [1994] 1 MLJ 599
[24] [1994] 4 CLJ 192
[25] [1995] 4 MLJ 670
[26] [2004] 1 MLJ 525

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