1. ) Tan Lay Peng v 1. ) Ong Beng Sheng (BK-A53KJ-290-11/2020)

KAM AK CHAN …PLAINTIF-PLAINTIF

ONG HOCK CHEW …DEFENDAN-DEFENDAN SESSIONS COURT (SEPANG) Dr. Azrol Bin Abdullah CIVIL SUIT NO BK-A53KJ-290-11/2020 Decision: 31 Januay 2024 Representation Messrs PS Sohanpal & Sidhu for the Plaintiffs Messrs Othman Hashim & Co for the Defendants GROUNDS OF JUDGMENT A) INTRODUCTION [1] This case involves a head-on traffic collision, resulting in the unfortunate death of a 19-year-old young man by the name of Kam Long Chin (the deceased) whose life was snuffed out in the prime of his life. Mendakwa sebagai ibu dan bapa yang sah sebagai orang-orang tanggungan KAM LONG CHIN, simati [2] By a writ issued on 6.11.2020, the deceased’s parents (the plaintiffs) brought an action against the defendants claiming damages as dependants of the deceased. [3] I allowed the plaintiffs’ claim for loss of contribution, bereavement, special damages, costs and interests. [4] In determining liability, I found that the first defendant (SD1) was solely negligent in the accident and had breached the duty of care towards the deceased. I could not find any contributory negligence on part of the deceased. Acordingly, the SD1 is imputed with 100% liability; whilst the second defendant being the owner of the vehicle driven by the SD1 is vicariously liable. [5] Dissatisfied, the defendants are now appealing at the High Court against my decision on both liability and quantum. Hence this judgment. B) KEY BACKGROUND OF FACTS [6] The findings made by this court were set against the succeeding background of facts presented by both parties. I shall only refer to the relevant facts and pieces of evidence that led to my findings on liability and quantum. [7] On 30.11.2019 around 11:05 pm, the deceased was driving a car bearing registration number WRV 2138. The deceased was ferrying two passengers heading towards Klang. Upon reaching KM30 Jalan Klang-Banting-Port Dickson, a car driven by SD1 bearing registration number BLT8221 that was travelling from the opposite direction ran full tilt into the kerb of the road divider, encroached onto the path of the deceased and collided head-on with the deceased’s car. [8] The deceased died instantly at the accident scene together with one of his two passengers. Another passenger in the deceased’s car survived the accident but escaped with serious injuries and live to tell the tale. However, the survived passenger from the deceased’s wrecked car had commenced a separate action vide case number A53KJ-160-08/2021. That case was tried together with this present case. On the other hand, SD1 had suffered injuries and was hospitalised. [9] Six witnesses were called during trial namely: i) IO : Inspector Lau Ung Hee Investigating Officer ii) SP1: Ng Huen Hai Representative to the deceased’s employer/ Manager First Sun Enterprise iii) SP2: Yang Kim Poh Manager at Hock Seng Casket Parlour iv) SP3: Tan Lay Peng First Plaintiff (Mother of the deceased) v) SD1: Ong Beng Sheng First Defendant vi) SD2: Leonard Yau Weh Ping Eye witness / a friend to SD1 / passenger travelling in car BLX7195 [10] I shall next in summary fashion, set out the salient arguments advanced by the parties in this case to provide better appreciation of the evidence produced before this court during trial. Some of the facts however will emerge later in the analysis section as they would be better understood when mentioned in such fashion. C. SUBMISSIONS ON LIABILITY The Plaintiffs’ Version [11] Although the outcome of the investigation has not been issued, the IO has confirmed that at the material time, the car which was driven by SD1 had encroached onto the path of the deceased and collided head-on with the deceased’s car, killing the deceased and a passenger instantly. [12] The photographs taken by the IO and the position of the broken pieces of glass proved that SD1 was negligent and must be imputed with 100% liability. The plaintiffs’ counsel submitted that the doctrine of res ipsa loquitor should be applicable in this case. [13] The second defendant being the owner of the vehicle driven by SD1 should be held vicariously liable. The Defendants’ Version [14] The counsel for SD1 submitted that SD1’s encroachment on the rightful lane of the deceased was unintentional because SD1 was avoiding an unknown car which suddenly exited from a minor road from his left and entered the right lane in front of SD1. [15] The doctrine of res ipsa loquitor should not be a applicable to this case because the accident was inevitable. SD1 insisted that his liability should be reduced to only 80%. D. SUBMISSIONS ON QUANTUM [16] The following matrix summarises the arguments advanced by parties on the reasonable sum for general damages and special damages that should to be awarded to the plaintiffs based on 100% liability. ITEMS PLAINTIFFS DEFENDANTS GENERAL DAMAGES Loss of contribution RM 307,200.00 (based on testimony of witnesses) or RM281,598.72 (based on 1/3 rule) 1/3 rule is not applicable. Calculation must be based on the deceased’s living expenses. RM200 x 12 x 16 = RM38,400 Bereavement RM30,000 RM30,000 SPECIAL DAMAGES a) Funeral expenses RM31,685.70 RM 31, 689.70 b) Post mortem report To be taxed under costs To be taxed under costs c) Police/Road Transport Department/chemist/Adjuster reports To be taxed under costs To be taxed under costs d) Losses of cash, gold bracelet, handphone, watch, bag and others withdrawn - e) Costs for the cause papers withdrawn - f) Loss of Employee Provident Fund (KWSP) contributions 42,432.00 To be dismissed as it was not pleaded by the plaintiff

LIABILITY [17] It was undisputed by parties that the deceased and SD1 were travelling on a normal trunk road along Jalan Klang-Banting-Port Dickson at the material time. Upon reaching KM30, both had collided head-on with each other. The said collision also involved another car (Myvii) bearing registration number BMP 3801 which was at the material time travelling in the same direction as the deceased. [18] A separate legal action was initiated by the victim of BMP 3801 but was heard together with this case. Therefore, I shall not touch on the merits relating to car BMP 3801 in this case. [19] The sketch plan produced by the IO in this case clearly showed that the car driven by SD1 which had been marked as MK3 in the sketch plan, had ended on the opposite lane after running full tilt into the concrete kerb of the road divider. The damage marks of the concrete kerb of the road divider were marked by the IO as ‘KL’ in the sketch plan. [20] After running full tilt into the concrete kerb of the road divider, SD1 encroached onto the rightful path of the deceased and collided head-on with the car driven by the deceased. SD1’s car then collided with another car BMP 3801. In short, SD1’s car had collided with two innocent vehicles due to his negligence. The deceased’s car was marked as MK2 in the sketch plan. [21] The sketch plan demonstrated that all three vehicles involved in this collision were not stucked together after the impact but were pushed away, leaving the component fragments of the cars (marked as SK by the IO in the sketch plan) scattered on the road. To my mind, there was nothing unusual for vehicles involved in accidents not to instantly stopped and stuck together upon impact. This notion can be further supported with the decision of the Federal Court in Foong Nan v Sagadevan [1971] 2 MLJ 24, wherein Ong CJ observed as follows: The vehicles could not have instantly stopped dead upon impact, but the heavier vehicle must by its greater momentum have pushed the lighter one backwards. [22] The markings of MK3, MK2 and SK in the sketch plan conclusively proved that the cars driven by SD1 had collided head-on with the car driven by the deceased. The severe frontal damage shown on all vehicles reasonably concludes that the damage was due to a high-speed impact. I adopt the similar observation made by the Court of Appeal in Sukatno v Lee Seng Kee [2009] 3 MLJU 84, where Abdul Malik Ishak JCA ruled as follows: By looking at the extensive damage to the defendant's motor van WR 5906, one can reasonably conclude that the defendant had driven at a fast speed and it had caused the plaintiff to sustain serious injuries which led to his paralysis when the said motor van collided into the plaintiff. [23] I am amused with SD’1s defence. SD1 had crafted his defence in a manner that it was the deceased who was blameworthy in the accident for the failure of avoiding SD1’s car. Due to the deceased’s failure, the head-on collision ensued. I reproduce below the relevant paragraphs of SD1’s defence in its original language:

Semasa di laluan bertentangan, sebuah motokar No WRV 2138 dipandu oleh si mati secara malangnya berlanggar dengan motokar Defendan Pertama. …

Sekiranya, yang mana adalah tidak diakui, si mati telah meninggal dunia dan Plaintif-plaintif telah diletakkan kepada kehilangan dan perbelanjaan, ini bukanlah disebabkan oleh apa-apa atau sebarang kecuaian yang didakwa atas Defendan Pertama dalam pemanduan, pengendalian dan kawalan motokar No. BLT 8221 tetapi disebabkan secara tunggal atau disumbangkan secara besar oleh kecuaian si mati sendiri dan atau kecuaian seorang pemandu motokar yang tidak dikenali dalam pemanduan, pengendalian dan kawalan motokarnya. (emphasis is mine). [24] Unfortunately, I do not fancy the above narrative contained in SD1’s defence because the burden is on SD1 to explain to this court how he ended up on the opposite side of the road, encroaching the rightful path of the deceased. Otherwise, the law presumes SD1 to be negligent. [25] The presumption of negligence or res ipsa loquitor was dealt with in Teoh Guat Looi v Ng Hong Guan [1998] 4 MLJ 525 where the Court of Appeal ruled that where a car was found in a position where in the ordinary course of things it had no right to be, prima facie case of negligence can be presumed against the driver. [26] The question now is whether the maxim res ipsa loquitor is applicable to the present case. I find it apposite to state the summation of the law by Faizah Jamaludin J. in Tenaga Nasional Bhd v Panareno Sdn Bhd (Vital Projects Sdn Bhd, third party and Semantra No-dig Engineering Sdn Bhd, fourth party) [2018] MLJU 2003 on the maxim of res ipsa loquitor: [126] “Res ipsa loquitor” is a Latin term, which in English means, “the thing speaks for itself”. It is a circumstance where this Court can infer negligence on the part of the Defendant if TNB can show that the nature of damage to the Cable suggests both negligence and the Defendant’s responsibilities. The maxim is explained by the editors of Clerk & Lindsell on Torts, 20th Ed3 at p.542 as follows: “It is only a convenient label to apply to a set of circumstances in which a claimant proves a case so as to call for a rebuttal from the defendant, without having to allege and prove any specific act or omission on the part of the defendant. He merely proves a result, not any particular act or omission producing the result. Res ipsa loquitor, which stems from the judgment of Erle C.J. in Scott v London v. St Katherine Docks (1865) 3 H. & C. 596 at 601, applies where (1) the occurrence is such that it would not have happened without negligence, and (2) the thing that inflicted the damage was under the sole management and control of the defendant, or of someone for whom he is responsible or whom he has a right to control. If these two conditions are satisfied it follows, on a balance of probability, that the defendant, or the person for whom he is responsible, must have been negligent. There is, however, a further negative condition: (3) there must be no evidence as to why or how the occurrence took place. If there is, then appeal to res ipsa loquitor is inappropriate for the question of the defendant’s negligence must be determined on that evidence.” [127] NH Chan JCA in Teoh Guat Looi v. Ng Hong Guan [1998] 4 MLJ 525;; [1998] 4 CLJ 416 (CA) citing Megaw LJ in Lloyde v West Midlands Gas Board [1971] 1 WLR 749, described res ipsa loquitor as follows: “…….. res ipsa loquitur as in essence no more than a common sense approach to the effect of the evidence in certain circumstances. It means that a plaintiff prima facie establishes negligence where: (i) it is not possible for him to prove precisely how the accident happened, but (ii) on the evidence as it stands, he manages to show that the accident could not have happened without negligence on the part of the defendant.” [27] The plaintiffs in this case were entitled to rely on the legal maxim of res ipsa loquitor in establishing their case against the defendants subject to the fulfilment of all three conditions: i) The accident would not have happened without negligence. ii) The damage was under the control of the tortfeasor. iii) The cause of the accident is unknown. [28] The first and second conditions could be easily suit the facts of the present case. The accident between SD1 and the deceased would not have happened without the negligence of SD1. SD1 had the control over the damage because the magnitude of the damage was a direct result from SD1’s unruly driving behaviour. [29] The difficulty is apparent in fitting the facts to the third condition because the cause of the accident between SD1 and the deceased is known. Since the third pre-condition unable to be met, the maxim res ipsa loquitor is not appropriate to be applied in the present case. For that matter, this court has to determine SD1’s negligence based on the available evidence. [30] SD1’s sudden action in encroaching onto the rightful path of the deceased had actually placed the deceased in the agony of the moment, causing the deceased having no chance to avoid SD1’s car or averted the accident. The deceased was in no way to be blamed for the collision. In this regard, I subscribe to the decision of the Federal Court in Kek Kee Leng v Teresa Bong Nguk Chin & Anor [1978] 1 MLJ 61, wherein Seah J observed as follows: Speaking generally, when one is faced with an impending danger, one does not normally act immediately. The court should give some allowance for this. During these vital seconds, the plaintiff would be closing in fast onto the motor-car. It seems to me that the plaintiff would not be able to avert the collision even if he had slowed down to 20 miles an hour. What would be the result if the plaintiff had applied his brake? Taking into account the Table of Braking Distances, it would appear that travelling at a speed of 30 miles an hour, the overall stopping distance would be in the region of 75 feet. Even if the plaintiff had forcibly applied his brake, it is plain that he could not have avoided colliding with the 2nd defendant's motor-car. Should the plaintiff swerve to his right on to the path of oncoming traffic? Or should he swerve to his left? There was no evidence that by swerving either to his left or right, the plaintiff could have avoided the collision or that it would be safe for him to do so. [31] SD1 shoulders the responsibility to discharge the onus of proof under section 102 of the Evidence Act 1950 (the Act) that he was in the agony of the moment before he encroached onto the rightful path of the deceased. In this respect Section 102 of the Act states: Section 102. On whom burden of proof lies. The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. [32] The application of section 102 of the Act had been carefully explained by the Federal Court in U Television Sdn Bhd & Anor v Comintel Sdn Bhd [2017] MLJU 1242, wherein Zulkefli Ahmad Makinudin PCA guided as follows: [35] On the meaning and application of the term ‘burden of proof’ section 101 of the Evidence Act 1950 [‘the Act’] states that it is the burden to establish a case which rests throughout on the party who assert the affirmative of the issue. The ‘burden of proof’ in section 102 of the Act is the burden to adduce evidence, to make out or rebut the claim. The ‘burden of proof’ in section 102 of the Act shifts from one side to the other according to the weight of the evidence. [33] SD1 in his testimony told this court that he was travelling at the speed of 100km/h before he encountered an unknown vehicle exiting from a minor road on his left and encroached into his lane. Whereas according to the IO, the speed limit at the accident location was only 60km/h. Clearly, SD1 was driving beyond the permitted speed limit. Surprisingly, SD1 had conceded to the fact that he was actually speeding at the material time. In fact, during re-examination SD1 said that the damage to the concrete kerb of the road divider would not have happened if he was not speeding. At the conclusion of SD1’s re-examination, SD1 also agreed that he was negligent. For ease of reference, I reproduce the final question and SD1’s answer during re-examination by his own counsel: Soalan: Peguam Plaintif ada mencadangkan kepada kamu bahawa kamu cuai dan kamu jawab kamu setuju. Adakah kamu cuai? Jawapan: Boleh kira cuailah [34] The admission by SD1 may be considered to be a strong ground to impute SD1 with liability. This is in consonance with the principle of law pronounced by the High Court in Muniyandi a/l Periyan & Anor v Eric Chew Wai Keat & Anor [2003] 3 MLJ 527 wherein VT Singham J ruled as follows: …the second defendant must have been speeding and was not able to control his motorcar to bring it to a stop in order to avoid the collision. All these omissions and admissions on his part clearly establishes negligence against the second defendant and that he did not act as that of a prudent driver. [35] According to the IO, there were only two eye witnesses in this accident namely, Fong Yong Yan and SD2 whom allegedly had seen the accident. Both were the friends of SD1 and they were travelling on the same road but in a different car bearing registration number BLX 7195. According to the police report lodged by Fong Yong Yan, he was driving on the right lane behind SD1’s car at the material time. Fong Yong Yan told the IO that he saw an unknown car exited from the left minor road and abruptly entered the right lane in front of SD1’s car. Fong Yong Yan was not called to give evidence and his police report remained as ID. Hence, Fong Yong Yan’s version was not considered by this court. [36] However, the defendants managed to secure the attendance of SD2 to testify in court. SD2 tendered his witness statement to this court and affirmed all his testimonies therein as true. His witness statement was at enclosure 61 had been marked as PSSD2. According to SD2, he was a passenger in a car driven by Fong Yong Yan at the material time. They were travelling on the right lane. SD1’s car subsequently came from behind and overtook Fong Yong Yan’s car before an unknown car exited from the left minor road causing SD1’s car ran full tilt into the kerb of the road divider. SD2 told this court that he had lodged a police report pertaining to this accident. However, the IO told this court that SD2 did not lodge any police report. SD2’s police report also was nowhere to be found in the bundle of documents. Therefore, it would be safe for me to hold that SD2 did not lodge any police report over this matter. [37] The IO told this court that the statements given by SD1 and SD2 to the police contradicted to each other. SD2 claimed that SD1’s car was on the left lane, whilst SD1 claimed that he was on the right lane. To my mind, which driving lane SD1 and SD2 were, was not crucial because the fundamental issue was whether SD1 had breached his duty of care and recklessly behaved on the road so much so putting other road users in peril. [38] it is my considered observation that the testimony of SD2 had actually helped the plaintiffs to buttress their evidence against SD1. The law is trite that that the plaintiffs are allowed to rely on the evidences given by the defendants in proving their claim. In this respect, the plaintiffs’ counsel was on point in citing the case of Chong Keow @ Chong Seaw Oon (Suing as the Adminitratrix of the Estate of Wong Kooi Tai @ Wong Foo Keak-Deceased v Shaari Bin Yaakob [1988] 2 CLJ 163, at 166 wherein the Lim Beng Choon J ruled as follows: Be that is it may, as the present proceeding involves a civil action and not a criminal prosecution, the plaintiff can rely on the evidence of the defence to establish his case. [39] SD2’s testimony was the last piece of the puzzle that could impute SD1 with liability. SD2’s testimony can be summarised in the following manner-SD1 was speeding. SD1 overtook the car ridden by SD2. SD2 saw SD1 had lost control over his car when SD1 attempted to avoid an unknown car that exited from the left minor road. [40] The IO told this court that she had investigated the statements given by SD1, SD2 and Fong Yong Yan about the unknown car which purportedly exited from the left minor road in their respective statements. However, the IO concluded that the veracity of their statements could not be proved. The IO’s finding over this matter was not disputed by SD1 and SD2. In Chu Kim Sing & Anor v Abdul Razak bin Amin [1999] 6 MLJ 433 the High Court ruled: It is now trite law that what is not challenged or disputed is deemed to have been admitted. [41] Accordingly, I find that the conclusion made by the IO over this matter is cogent. The defence put forth by SD1 that he was avoiding an unknown car exited from left minor road is untenable, unproven and merely after thought. SD1 unable to discharge the onus of proof as required by section 102 of the Act. [42] In the circumstances, even if the existence of the unknown car was true, SD1 should have been able to avoid safely without running full tilt into the concrete kerb of the road divider and encroaching onto the opposite lane if SD1 was not speeding. SD1 had loss the control of his car not because of avoiding the unknown car per se; but avoiding the said unknown car while speeding. Although the IO was unable to state the distance between ‘KL’ and the left minor road; my careful perusal over the sketch plan concludes that the distance between both was significantly far apart. It was unreasonable for SD1 to say that he was unable to avoid the unknown car within such a distance unless he was driving more than 100km/h. [43] This court is not persuaded by SD1’s defence that the accident was inevitable or due to the agony of the moment. It is my considered observation that SD1’s deliberate action in driving beyond the permitted speed limit on a dark road vividly demonstrates the recalcitrant behaviour of SD1 towards the law and shrugged off the safety of other road users. [44] For the reasons adumbrated above, I found that SD1 is blameworthy in the accident and it is appropriate for this court to impute 100% liability on SD1. the second defendant is held vicariously liable for being the owner of the car driven by SD1. [45] This court is not prepared to pronounce any liability on the deceased since there is nothing shown to this court that the deceased was contributory negligent. Therefore, the deceased is in no way to be blamed for the collision. [46] I shall now move on to assess the quantum.

(ii) QUANTUM [47] In assessing quantum, I am mindful that an award must be fair whereby proper compensation for the injury suffered and the loss sustained. In Lim Poh Choo and Islington Area Health Authority [1980] AC 174, Lord Scarmen had this to say: … the principle of the law is that compensation should as nearly as possible put the party who has suffered in the same position as he would have been in if he had not sustained the wrong … There is no room here for considering the consequence of a high award on the wrongdoer or those who finance him. [48] Similar sentiment was also expressed in Inas Faiqah bt Mohd Helmi (an infant suing through her father and next friend, Mohd Helmi bin Abdul Aziz) v Kerajaan Malaysia & Ors [2016] 2 MLJ 1; [2016] 2 CLJ 885, wherein the Federal Court said at p 10 (MLJ); p 984 (CLJ): [20] It is trite that damages serve as compensation, not a reward less still a punishment … In assessing damages, the court should not be motivated by sympathy and award fair compensation based on cogent evidence. The court should not descend into a domain of speculation. The evaluation of those evidence, which form the basis of any risk of future damage, must therefore still be undertaken. And the trial judge can only evaluate such evidence based on the recognised balance of probabilities standard. [49] Having these principles against the overall backdrop, I shall now consider the following claims submitted by the plaintiffs. a) Loss of Dependency [50] In considering the calculation for loss of contribution, this court must determine the multiplicand and the multiplier. Multiplier: [51] In determining multiplier, sections 7(3) and 28A(2)(d)(i) of the CLA 1956 are applicable where the years’ purchase shall be 16 if deceased’s age is less than 30 years old at the time of death. In Marappan Nallan Koundar & Anor. v Siti Rahmah Ibrahim [1990] 1 MLJ 99, his Lordship Gunn Chit Tuan SCJ (later CJ (Malaya)) for the Supreme Court at page 101 said: The legislature has made its intention very clear by using mandatory language in s 28A(2)(d) of the Act ‘in assessing damages for loss of future earnings the court shall take into account that in the case of a person who was of the age thirty years or below at the time when he was injured, the number of years' purchase shall be 16’. The learned judge was therefore right in awarding a multiplier of 16 in this case. [52] In the present case, the deceased died at the age of 19 years old. Therefore, the years’ purchase shall be 16 (192 months). Multiplicand: [53] There are two approaches in calculating the multiplicand. The first approach is based on testimonies of the witnesses which I termed it as the conventional method. Meanwhile the second approach is termed by precedents of cases as the ‘modern trend’. [54] However, I do not prefer to embrace the conventional method in determining the multiplicand because the some of the evidence given by SP3 were based on estimations and SP3 did not offer much evidence for this court to consider. [55] I prefer to devise the modern trend, which to my mind is more reasonable and able to reduce the standard of error. The modern trend permits this court to make 1/3 deduction from the deceased’s monthly income. [56] The modern trend has been noticeably applied by our courts. Suffice for me to quote the relevant paragraph in Rohani a/p Tengkah (widow suing on her behalf and on behalf of her two children, as dependance of Zinuddin Bin Sipoh, deceased) v Zainal bin Lani & Anor [2004] 5 MLJ 289, which comprehensively explained about the method of applying the modern trend in calculating the multiplicand: …I propose to adopt what LC Vohrah J in Low Suit (m, w) Administratrix of the estate of Tan Mee Ho (J) and Tan Mee Kiau (f) both deceased v Lim Sun Hiang t/a Syarikat Ta Thong & Anor [1992] 2 CLJ 1035 at p 1036, called the 'modern trend', that is, the practice of merely deducting a percentage from the monthly earnings, instead of going through labouriously and painstakingly in detail on the various expenditures incurred by the deceased when alive, in order to determine his living expenses. In the case cited, the learned judge, having referred to Rebecca Mathew & Ors v Syarikat Kerjasama Serbaguna Gema Wong Siong Bhd & Anor [1990] 1 MLJ 443 said: ... I would, in accordance with the modern trend, deduct one-third from the first deceased's wages as living expenses leaving the remainder as surplus income. Similarly for the second deceased. …Accordingly, following the modern trend, I shall deduct approximately 1/ 3 (strictly, 1/3 of RM1,300 is RM433, but for ease of calculation, I propose to round up the figure to RM400) from the deceased's monthly earnings of RM1,300 and arrived at the multiplicand of RM900 (ie RM1,300 - RM400 = RM900). The appeal in respect of the multiplicand is thus allowed. [57] The plaintiffs’ counsel persuaded this court to make 1/3 deduction from the deceased’s gross income. However, I find myself unagreeable with the suggestion given by the plaintiffs’ counsel because the law clearly states that the 1/3 deduction has to be from the nett income (take home pay) and not the gross income. In this respect, I am guided by the principle enunciated in Shahrizam bin Damsah v Mahathir bin Mohd Isa & Anor [2014] 10 MLJ 490 wherein the learned High Court Judge ruled as follows: …none of the Court of Appeal cases had used the words take home-pay or gross income as submitted by both parties. In the case of Rohani Tengkah, the court merely used the words monthly earnings and decided that the whole of the deceased's earnings should have been taken as the starting point (as the base figure). Be it as it may, I believe that the monthly earning referred to by the Court of Appeal judges in the case of Rohani Tengkah is the monthly take home earnings because it was this income that the deceased took home every month and from which the deductions for living expenses would be made. (emphasis added) [58] Applying the of the above principles to the present context and the evidence given by SP1, I accept that the deceased’s monthly average nett income was RM2001.45 based on the evidence at Exhibit P3. 1/3 from RM 2001.45= RM667.15 (expenses) Nett income minus expenses (2001.45-667.15) = 1334.30

1334.30 x multiplier (192 months) = RM 256,185.60 [59] By taking the deceased’s take-home pay as the multiplicand and deducting 1/3 from the take home pay for the deceased’s personal living expenses, the value of dependency claim of the plaintiff is RM 256,185.60. b) Funeral Expenses [60] I have considered evidence given by SP2 in assessing the plaintiffs’ claim for funeral expenses. However, during submission, the defendants’ counsel had proposed RM31,689.70 as the reasonable amount for funeral expenses. The amount proposed by the defendants was RM 4 higher than the sum demanded by the plaintiffs. The plaintiffs demanded only RM 31,685.70 for funeral expenses. Therefore, I allow the plaintiffs’ claim for funeral expenses in the sum of RM 31,685.70. c) Bereavement [61] Sections 7(3A) and (3B) of the Civil Law Act 1956 (CLA1956) state the following provisions:

An action under this section may consist of or include a claim for damages for bereavement and, subject to subsection (3D), the sum to be awarded as damages under this subsection shall be thirty thousand ringgit.

A claim for damages for bereavement shall only be for the benefit of—

the spouse of the person deceased;

the child of the person deceased; and

the parents of the person deceased. [62] Based from the above provisions, the plaintiffs in this case being the parents of the deceased, are entitled to be awarded with a total sum of RM30,000 for bereavement by virtue of sections 7(3A) and (3B) of the Civil Law Act 1956. d) Loss of Employees Provident Fund (EPF) Contribution [63] The plaintiffs demanded for the loss of EPF contribution in the sum of RM42,432.00 but the defendants counsel in retort opposed to the plaintiffs’ claim because it was not pleaded in their pleadings. In this respect I am agreeable to the submission by the defendants’ counsel. [64] It is trite that the loss of EPF contribution can be claimed from the court. In Lau Kung Kai v Abu Serah Bin Bol (M) [2008] MLJU 352, the learned High Court Judge allowed the claim for the loss of EPF contribution in the following terms: To my mind the plaintiff is entitled to be compensated for the loss of his employer’s contribution to the Employee’s Provident Fund… On the issue of entitlement to EPF employer’s contribution, the above-quoted case was cited with approval in Soh Hau Huat @ Anthony v. Mohd Nor Taya & Anor [1992] 4 CLJ 2185; [1992] 3 CLJ (Rep) 600. [65] It is pertinent to reemphasise that all special damages must be specifically pleaded in pleadings. The loss of future EPF contribution falls within the realm of special damages. Special damages that are not pleaded cannot be entertained by the court. This position runs congruent with the pronouncement made by Nantha Balan J (now JCA) in Shen & Sons Sdn Bhd v Jutawarna Development Sdn Bhd & Ors [2016] 7 MLJ 183 that: [55]…The cumulative effect of O 18 r 12(1) and (2) of the Rules of Court 2012 is that all relevant particulars in relation to special damages have to be pleaded. [57] Apart from the Rules of Court 2012 (and its predecessor the Rules of the High Court 1980), the requirement for special damages to be specifically pleaded has been part of the common law and is also firmly entrenched as part of Malaysian adjectival jurisprudence. [62] Thus, the court had no difficulty in rejecting the complaint that was advanced by the defendant. In rejecting the objection which taken by the defendants in respect of inadequacy of pleadings on special damages, [66] There is nothing in the plaintiff’s pleading claiming for the loss of EPF contribution. Hence, I dismiss plaintiffs’ claim for the loss of EPF contribution. F) CONCLUSION [67] I have striven to consider all evidence in context, had close regard to the consistency of witnesses’ testimonies and the reliability of the documentary records produced before this court. I found that the plaintiffs had successfully proven their case on the balance of probabilities. I award the above damages on a 100% liability basis with interests and costs. [68] I allow interests favouring the plaintiffs on the following terms:

5% per annum for general damages from the date service of writ to the date of judgment;

(ii) 2.5% per annum for special damages from the date of the accident to the date of judgment; and

(iii) 5% per annum on the judgment sum from the date of judgment to the date of final settlement. [69] The costs for police report, post mortem reports, Road Transport Department /chemist/Adjuster reports, shall be payable as legal fees without interest. ………………Sgd……………… DR. AZROL BIN ABDULLAH JUDGE SESSIONS COURT SEPANG