By J. Edwin Rajasooria, Selangor Bar
Ali aged 21 a bachelor a final year medical student was killed instantly in a fatal accident caused by a negligent motorist. Ali was the eldest and his parents had spent all of their life savings and even taken loans to help Ali complete his studies. Yet, the damages his parents would be entitled to claim are for Ali’s funeral expenses and nothing more. The Courts usually grant between RM3,500.00 and RM5,000.00 for a Malay funeral.
Minah a widow aged 56 was killed in another fatal accident. Although she was working and supporting her children some of whom were still studying, they are not entitled to claim for any loss of dependency. None of Minah’s children are also entitled to claim for bereavement as no bereavement award are paid to a child over the death of a parent.
Ah Chong a 45 year old bachelor succumbed to his injuries sustained in a road accident. As both his parents had pre–deceased him, only Ah Chong’s siblings and close friends mourned his demise. The insurers of the tort feasor would not have to pay any loss for bereavement or loss of earnings in respect of Ah Chong’s fatal accident.
Ali aged 21 a bachelor a final year medical student was killed instantly in a fatal accident caused by a negligent motorist. Ali was the eldest and his parents had spent all of their life savings and even taken loans to help Ali complete his studies. Yet, the damages his parents would be entitled to claim are for Ali’s funeral expenses and nothing more. The Courts usually grant between RM3,500.00 and RM5,000.00 for a Malay funeral.
Minah a widow aged 56 was killed in another fatal accident. Although she was working and supporting her children some of whom were still studying, they are not entitled to claim for any loss of dependency. None of Minah’s children are also entitled to claim for bereavement as no bereavement award are paid to a child over the death of a parent.
Ah Chong a 45 year old bachelor succumbed to his injuries sustained in a road accident. As both his parents had pre–deceased him, only Ah Chong’s siblings and close friends mourned his demise. The insurers of the tort feasor would not have to pay any loss for bereavement or loss of earnings in respect of Ah Chong’s fatal accident.
Mei Ling an unmarried orphan was killed in a road accident, no award for loss of earnings or bereavement would be paid for her death.
The administrators of Muthu’s estate filed an estate claim over Muthu’s death as a result of an accident. Muthu’s estate is not entitled for any award for bereavement.
The above scenarios are largely due to the amendments introduced into our Civil Law Act, 1956 (“CLA”) vide the Civil Law (Amendment) Act 1984 (‘the Amendment Act’) which came into force on 1/10/1984.
In all fairness it must be added that the Amendment Act very closely mirrored the major changes introduced in the United Kingdom with effect from 1/1/1983 vide the UK Administration of Justice Act 1982 (‘the AJA’).
The AJA inter alia replaced the loss of expectation of life and introduced a new claim for bereavement with fixed a sum of £3,500 to be awarded to only the spouse and parents of the deceased.
The Malaysian government followed suit and introduced changes to the Civil Law Act 1956 (‘CLA’) vide the Amendment Act 1984 which amended various sections of the CLA. The Amendment Act probably was made to maintain the similarity between English and Malaysian laws by adopting most of the reforms introduced in the United Kingdom vide the AJA.
The Amendment Act abolished the right of the estate to claim damages for loss of expectation of life as well as loss of future earnings in the lost years. It also abolished actions for damages for loss of consortium and loss of services of a child.
The 1984 Act also introduced new regulations to assess the loss of earnings of the living victim and loss of financial support of the dependants of the deceased.
The Amendment Act like the AJA introduced for the first time in Malaysia an award for bereavement but at the same time abolished the loss of expectancy of life and the loss of earnings for the lost years.
Bereavement could be described as the state of sorrow over the death or departure of a loved one. Logically a wide variety of people would mourn the loss of a loved one usually it would be the spouse, the children, the parents, the siblings, relatives and close friends.
The term “Bereavement award” refers to the statutory lump sum payment made to families or loved ones following the death of a minor child or spouse.
The Amendment Act provides that RM10,000.00 shall be paid as the bereavement award.
The CLA however limits the categories of persons whom are entitled to claim, namely the surviving spouse and where the deceased is not married and a minor, then his parents.
This means that only if the deceased was married or was a minor, would an award be made for bereavement.
It follows that the spouse or parents must prove their nexus with the deceased i.e. by way of a marriage certificate or birth certificate. Even where the deceased is a minor, the fact that he was not married would not be presumed and must be proved. In Hooi Seong v Ooi Pay Yeong [1995] 4 MLJ 670 no award for bereavement was made by the High Court as it could not be presumed that the minor deceased was not married.
If both parents are alive then the sum would be divided equally. Where there are two wives or more, the sum would be divided amongst the wives, Hazimah bte Muda & Anor v Ab Rahman & Anor [727] MD 1.
Several categories of bereaved persons including the deceased’s legal estate are legally excluded from claiming for any compensation. The most notable are the children of any age of the person killed in a motor accident.
Why our Parliament in its infinite wisdom chose to omit the children of the deceased as did the UK Parliament, particularly the minor children is not known.
Parliament also excluded bereavement to parents for any deceased child above 18 whom might be unmarried and still studying.
Parliament by limiting bereavement to limited categories of persons has inadvertently reduced the sum payable by the tort feasor to the victims.
The CLA was amended in 1984 and for the past 26 years has not been reviewed. RM10,000.00 was the figure given in 1984 and due to inflation and other factors this sum has greatly diminished in value.
Whilst it is conceded that no monetary sum can compensate for the loss of a loved one, the CLA seeks to compensate in monetary terms the state of grief certain persons had to endure for the demise of the accident victim.
In Ong Ah Long v Dr S Underwood, [1983] 2 MLJ 324 at p 334 Syed Agil Barakbah FJ said: that damages … “are simply compensation that will give the injured party reparation for the wrongful act and for all the natural and direct consequences of the wrongful act, so far as money can compensate”.
In the UK, the bereavement award has been increased a few times and from £3,500 in 1983 to £11,800 in 2008. Therefore over a span of 26 years, the award has tripled.
Meanwhile for almost the same period, our award statutorily fixed at RM10,000.00 remains unchanged.
If it indeed was the AJA that moved our government to amend the CLA, it is fair that the award for bereavement be also tripled as was done in the UK. At the very least, it should be increased taking into account inflation and the rise in the cost of living.
It is timely that since Bank Negara is relooking into the motor insurance scheme, Bank Negara should also propose an amendment to the CLA to increase the bereavement award from the original figure given in 1984 by at least three times to RM30,000.00 and this is not taking into account the current equivalent of £11,800 is about RM66,000.00.
Bank Negara should also propose amending the categories of persons entitled to claim which should include all children who would surely mourn the loss of a parent. Likewise the death of every child would be mourned by the parents irrespective if the child was a major or minor or married.
The administrators of Muthu’s estate filed an estate claim over Muthu’s death as a result of an accident. Muthu’s estate is not entitled for any award for bereavement.
The above scenarios are largely due to the amendments introduced into our Civil Law Act, 1956 (“CLA”) vide the Civil Law (Amendment) Act 1984 (‘the Amendment Act’) which came into force on 1/10/1984.
In all fairness it must be added that the Amendment Act very closely mirrored the major changes introduced in the United Kingdom with effect from 1/1/1983 vide the UK Administration of Justice Act 1982 (‘the AJA’).
The AJA inter alia replaced the loss of expectation of life and introduced a new claim for bereavement with fixed a sum of £3,500 to be awarded to only the spouse and parents of the deceased.
The Malaysian government followed suit and introduced changes to the Civil Law Act 1956 (‘CLA’) vide the Amendment Act 1984 which amended various sections of the CLA. The Amendment Act probably was made to maintain the similarity between English and Malaysian laws by adopting most of the reforms introduced in the United Kingdom vide the AJA.
The Amendment Act abolished the right of the estate to claim damages for loss of expectation of life as well as loss of future earnings in the lost years. It also abolished actions for damages for loss of consortium and loss of services of a child.
The 1984 Act also introduced new regulations to assess the loss of earnings of the living victim and loss of financial support of the dependants of the deceased.
The Amendment Act like the AJA introduced for the first time in Malaysia an award for bereavement but at the same time abolished the loss of expectancy of life and the loss of earnings for the lost years.
Bereavement could be described as the state of sorrow over the death or departure of a loved one. Logically a wide variety of people would mourn the loss of a loved one usually it would be the spouse, the children, the parents, the siblings, relatives and close friends.
The term “Bereavement award” refers to the statutory lump sum payment made to families or loved ones following the death of a minor child or spouse.
The Amendment Act provides that RM10,000.00 shall be paid as the bereavement award.
The CLA however limits the categories of persons whom are entitled to claim, namely the surviving spouse and where the deceased is not married and a minor, then his parents.
This means that only if the deceased was married or was a minor, would an award be made for bereavement.
It follows that the spouse or parents must prove their nexus with the deceased i.e. by way of a marriage certificate or birth certificate. Even where the deceased is a minor, the fact that he was not married would not be presumed and must be proved. In Hooi Seong v Ooi Pay Yeong [1995] 4 MLJ 670 no award for bereavement was made by the High Court as it could not be presumed that the minor deceased was not married.
If both parents are alive then the sum would be divided equally. Where there are two wives or more, the sum would be divided amongst the wives, Hazimah bte Muda & Anor v Ab Rahman & Anor [727] MD 1.
Several categories of bereaved persons including the deceased’s legal estate are legally excluded from claiming for any compensation. The most notable are the children of any age of the person killed in a motor accident.
Why our Parliament in its infinite wisdom chose to omit the children of the deceased as did the UK Parliament, particularly the minor children is not known.
Parliament also excluded bereavement to parents for any deceased child above 18 whom might be unmarried and still studying.
Parliament by limiting bereavement to limited categories of persons has inadvertently reduced the sum payable by the tort feasor to the victims.
The CLA was amended in 1984 and for the past 26 years has not been reviewed. RM10,000.00 was the figure given in 1984 and due to inflation and other factors this sum has greatly diminished in value.
Whilst it is conceded that no monetary sum can compensate for the loss of a loved one, the CLA seeks to compensate in monetary terms the state of grief certain persons had to endure for the demise of the accident victim.
In Ong Ah Long v Dr S Underwood, [1983] 2 MLJ 324 at p 334 Syed Agil Barakbah FJ said: that damages … “are simply compensation that will give the injured party reparation for the wrongful act and for all the natural and direct consequences of the wrongful act, so far as money can compensate”.
In the UK, the bereavement award has been increased a few times and from £3,500 in 1983 to £11,800 in 2008. Therefore over a span of 26 years, the award has tripled.
Meanwhile for almost the same period, our award statutorily fixed at RM10,000.00 remains unchanged.
If it indeed was the AJA that moved our government to amend the CLA, it is fair that the award for bereavement be also tripled as was done in the UK. At the very least, it should be increased taking into account inflation and the rise in the cost of living.
It is timely that since Bank Negara is relooking into the motor insurance scheme, Bank Negara should also propose an amendment to the CLA to increase the bereavement award from the original figure given in 1984 by at least three times to RM30,000.00 and this is not taking into account the current equivalent of £11,800 is about RM66,000.00.
Bank Negara should also propose amending the categories of persons entitled to claim which should include all children who would surely mourn the loss of a parent. Likewise the death of every child would be mourned by the parents irrespective if the child was a major or minor or married.