The Chinese don't like to talk about death. However, death is an inevitable part of life, and sometimes it may be the result of an accident. Thus, it is useful to know if your family can receive support should something bad happen to you, and how much your life is worth.
What is a fatal claim?
The name itself is explanatory. Someone (defendant) must have negligently caused the victim's death. Note that an action in tort must be commenced within 6 years of the date the cause of action (harm) arose. There are several categories under fatal claims.
1. Bereavement (Deprivation)
What?
s7(3A) Civil Law Act - Bereavement award is a one-off payment of RM10,000 by the defendant to the family of a victim whose death was caused by negligence.
Who can claim?
- Spouse of deceased person
- Parent(s) of minor child who is single
The category of persons who can claim are very limited. There is no provision for a situation where a parent dies and the child survives. An estate administrator cannot claim for the benefit of the victim's estate. Note that even if the deceased is a minor, it must be specifically proven that he is not married, otherwise there will be no bereavement award (Hooi Seong v Ooi Pay Yeong [1995] 4 MLJ 670)
What if the deceased is more than 18 (considered adult) but still a student and single? Well, too bad. The parents won't be able to claim for bereavement.
So what if the deceased has more than one wife (Muslims)?
Hazimah Bt Muda & Anor v Ab. Rahim Bin Ab. Rahman & Anor [2000] MLJU 763 held that RM10,000 bereavement award was to be shared equitably between two wives recognized under customary law.
Mr Foo mentioned that earlier on there was a bill (subsequently retracted) that proposed to increase this amount to RM50,000 and to allow a child to claim for death of parents and vice versa. However, even if it is increased to RM50,000, is it fair to have it divided between multiple wives and children?
Who is a child?
s7(11) CLA says a “child” includes son, daughter, grandson, granddaughter, stepson
and stepdaughter. But don't forget the rule on who can claim above.
2. LOSS OF SUPPORT
Dependency is not found in CLA, but the phrase "dependency claim" is frequently utilized to describe loss of support under s7(3) CLA.
Who is a dependent?
Since this is a "dependency" claim, the claimant must prove the financial loss that he suffers as a dependent under s7(2).
s7(2) Every such action shall be for the benefit of the wife,
husband, parent, and child, if any, of the person whose death has
been so caused and shall be brought by and in the name of the
executor of the person deceased.
Siblings cannot claim. Also, if a child is taken care of by his relative, and the latter passed away, the child cannot claim.
Additionally, he must be a direct beneficiary of the financial support (Chan Chin Ming & Anor v Lim Yok Eng [1994] 3 MLJ 233). Nonetheless, if the claimant can show special circumstances that display the likelihood of of dependence, he will have a stronger case (Muhamad bin Hashim v Teow Teik Chai & Anor [1996] 4 MLJ 7, which held that money given by the deceased to the appellant for family expenses implies that the appellant as a member of that family has derived some direct benefit.)
Time Limit
s7(5) CLA - 3 years
Loss of Earnings
s7(3)(iv)(a) - if victim is over 55 years old, there shall be no award for loss of earnings.
Otherwise it will be calculated as follows:
- Multiplicand
(amount you are claiming for) x multiplier (years of purchase) = RM YYY
- Multiplicand
will be decided by the court, starting point being how much he earns:
i. Person who died must have been
gainfully employed at the time of his death (does not matter if you have a
contract/promised a job => this does not count)
ii. Court will only look at the
income of the deceased person at the time of death (court is not allowed to
consider of any prospects of deceased to be increased in the future)
The current formula is as follows:
- Below 30 years old, multiplier is 16.
- If 31-54 years old, 55 minus age of death, then divide by 2.
Say I earn RM1,000 nett per month (after deducting approx 20% for income tax), and I give my mom RM500 per month.
Scenario A: I die at 24! Multiplier is 16, therefore 500*12*16=RM96,000.
Scenario B: I die at 32! Multiplier is (55-32)/2=11.5, therefore 500*12*11.5=RM69,000.
However, the sums in real-life might be lesser than what is calculated above as it has often been argued by insurance company lawyers that the award should be read based on the annuity table. Even though many cases held that a straight multiplier should be used, in
Takong Tabari v Government of Sarawak and others (1996) 5 MLJ 435, RM270,000 damages was reduced by 1/3 for contingencies, and unfortunately leave to appeal was refused as it was not on a point of law.
FUNERAL EXPENSES
Reasonable
amount, normally around a few thousand.
INTERESTS
Interest is
awarded from the date of filing of writ until date of judgment, now it's 5% p.a. Special interest (as in pre-trial award) is 4% p.a. from date of accident to trial. No interest for anything
for the future.
As a conclusion, there are many inadequacies in the current law. Hopefully changes can be made to the CLA so that family members and/or close kins can be properly and adequately supported following the loss of a loved one.
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I was extremely blessed to have the chance to attend a special condensed course on Remedies organized by Puan Choong and Dr Nur Jannah. The information in this post mostly came from
Mr Christopher Foo's session on accident claims but should there be any mistake(s) or error(s) in interpretation, they are solely my own. Please let me know if there are any mistakes so I can correct them. I also referred to certain online publications [
Difficulties Suffered by Accident Victims by Etican Ramasamy | Dying Need to Review Bereavement by Malaysian Bar] and cases on Malayan Law Journal.
