• Need to be familiar with Law of Contract • Contracts Act 1950, Specific Relief Act 1950 • Cases (Malaysian cases/ precedents) • Relevant chapter that needs to be revised: • Elements of contract- offer, acceptance, consideration, intention to create legal relation, capacity & certainty • Terms of contract- express and implied terms • Exclusion clause • Voidable contracts- coercion, undue influence, fraud and misrepresentation • Void agreements- mistake, sections 24, 26, & 27-31 • Discharge of contracts- by performance, breach, frustration, agreement • Remedies- rescission, damages, specific performance and injunctions • Need to be familiar with Law of Tort • Cases ( focusing on Malaysian precedents/ cases) • Relevant chapter that needs to focus on: • Negligence (DOC, BOD, Damage & Defences) • Vicarious liability • Defamation & defences • Nuisance • Remedies ( damages/ injunction) Always be practical, not academic • Do not give a law lecture/ abstract advice • Do not set out basic principles of law- dependent on whether the reader is legally trained or otherwise • Only cite authorities on point of law- do not make a statement of fact and then cite a case to support it ( without explanation of the case- i.e. just citing the name of the case) • Do not cite all relevant cases that say the same thing • Only cite statute that is integral part of the reasoning in an opinion- paraphrase the statutory provision to make it shorter and clearer but must do it accurately. Can also quote in full and set out your understanding. • Must always apply the law to the facts. • Use ‘we’- don’t use ‘I’ / ‘me’ because you are writing as a firm • Quote from the passage is allowed- but not over do it- it will become academic essay.. • No submitting (we humbly submit…- always use in our view/ opinion… OPINION WRITING IN TORT- running down/ accident cases INTRODUCTION • Divided into – personal injury, property damage and death / dependency claims • Practicing lawyers – focusing on this area of litigation • The trend nowadays, parties are asked to go for mediation- based on Practice Direction 5/2010 before proceeding to trial • What is mediation? • Who is facilitating mediation in Court? • Does it mandatory in Malaysia to go to mediation? • Lawyers need to familiarize themselves with different heads of claim for running down cases • You need to know your law (cases) and relevant statutes that can support your opinion/ submissions Statutes • Civil Law Act 1956 • Court of Judicature Act 1964 • Limitation Act 1953 • Road Transport Act 1987 • Highway code • Evidence Act 1950 • Rules of Court 2012 • Subordinates Court Act 1948 Personal Injury Law • Cause of action- liability in PI action is founded on the COA. It is a set of facts that give a claimant (P) a right to bring an action / to have an enforceable claim in Court. • COA arises when there is an existence of a person who can sue and be sued • How to determine COA? • remedy will be monetary compensation, i.e. damages awarded by the Court • Action for PI arise either at common law or based on statutory provisions Action for PI • Need to know the principle of negligence + complied with statutory requirements • Leading case- Donoghue v Stevenson (1932) AC 562 • Duty of care • Breach of duty • An injury flowing from the breach (link between the breach and injury vital) • Proof of negligence: onus of proof is on the claimant (P) – to show on a balance of probabilities the (D) has breached the DOC which he owes to the (P) • Standard of care applied- ‘reasonable man’- there is DOC not to cause injury to your neighbor • Unable to proof- action will fail • For motor accident claim- a high standard of care is imposed on the road, users/ drivers as laid down in the Highway Code • Under Section 96 (1) of the RTA 1987- an authorized insurer (insurance company) is bound to satisfy any judgment obtained against a person covered by a policy of insurance… in respect of any liability incurred by him that results in death or bodily injury to a third party caused by or arising out of the use of a motor vehicle… on a road • There is no statutory right to sue an insurer for failure to satisfy a judgment for damage to property. • However, several conditions need to be satisfied:
• Judgment must have been obtained by the third party against
the insured person in respect of liability in a claim for damages • Before the judgment is obtained, the notice of commencement of action must be given to the insurer before or within 7 days of the commencement of action pursuant to Section 96 (2) (a) RTA 1987 (if the writ has expired, the NOC is also not valid for the purpose of the 2nd writ) • Policy of insurance must be in force at the time of the happening of the event which caused the death/ bodily injury Limitation • What is limitation • Referred to Civil Procedure subject Evidence on liability • The liability of a D, can be agreed between P + D- if not agreed, then need to be proved by the P • The D, sometimes raise C/Negligence or makes a counterclaim- so D must be ready to prove it. • The evidence in trial- based on oral (witnesses) + documentary presentation of the facts (police report, medical report etc.) • The Court will decide based, on – the facts, expert opinion, if accepted (if any) and any inferences that may be drawn from the circumstances of the case i.e. refer to sketch plan & key, nature of injuries • In accident matters, sometimes the driver can be charged under section 43 (1) and section 41 RTA 1987- consider criminal case Defenses • Defenses at common law • No breach of duty • Cause beyond control of Defendant (inevitable accident) • Volenti non fit injuria • Statutory defences • Contributory negligence- section 12 (1) CLA • Limitation Damages • Damages are awarded as compensation for PI or death claims. • To put the victim back to the original position as far as the money can do as if the accident has not occurred • For PI- monetary compensation is GD and SD • GD? • All damages which up to the time of hearing have not yet been crystallized in actual disbursement but are still prospective • It is non-pecuniary loss (Es) that cannot be precisely quantified/ to be determined by the Court depend on circumstances of the cases • Need not be specifically pleaded in the SOC • Also include pecuniary losses that P will continue to suffer after the date of trial • SD? • Actual pecuniary loss • Financial loss that can be quantified and specifically proven by receipts • Out of pocket expenses from the date of the accident – the date of trial/ settlement • It is quantifiable and can be quantified till the last cents • Must be strictly pleaded and proved (evidence must be produced to substantiate the claim) + it is the duty of P to mitigate his loss • E.g. hospital bills, travelling expenses, loss of earnings, cost of repairs, funeral expenses, extra nourishing food, etc. • Mitigation of loss and overlapping must be given due consideration to avoid over compensation • Overlapping? • Scaling down to avoid over compensation • It arises when injuries sustained are related to the same part / function of the body- so the award should be only one • Refer to case Wintsun Durai (2002) 7 MLJ 336 • Pain & suffering and loss of amenities? • P will receive this award if he/ she is conscious and aware of what happened • The more conscious- the greater amount of damages awarded • Compensation is given for both physical and emotional suffering • Quantum assessed based on: • Nature of injuries • Period of hospitalization • Awards in previous similar cases • Age of Plaintiff • Marital status • Prospects in life (social & business position) • Death cases: • Die instantaneously • Die shortly after the accident • P unconscious • Partially conscious • The practice of the Court is to award one lump sum for both LOA and P& S although there is a clear distinction between these two heads of claim- • Ramachandran (1997) 4 MLJ 237, Azizi bin Amran (2006) 4 AMR 381 CA, Ahmad Damanhuri Hussein (1990) 3 MLJ 53, Wong Li fatt (1994) 2 MLJ 497 • Loss of Future Earnings • Two division of loss of earnings: actual loss (from the date of accident to the date of trial) and future loss (from the date of trial to Judgment) • A claim is made when the Plaintiff’s injuries makes him unable to work and therefore suffers loss of income • Loss suffered must be real and not speculative • Principles of assessment- Section 28A(2)(c ) and (d) CLA • Conditions precedents to claim LOFE: Section 28A (2) (c) • Section 28A (2) (c ) (ii) • Court shall not take into account any claim for prospect of future increase in earnings ( only amount earned at the time of accident/ injury is allowed)- Chan Ming Feng (1999) 1 MLJ • Section 28A (2) (c ) (iii) • Living expenses ( e.g. petrol, meals at work, bus fare etc.) to be deducted ( must be proved and admitted in Court to be deducted) • Assessment: Multiplicant and Multiplier • Loss of earnings • Represent the P’s net annual loss of earnings (salary + allowance + overtime +employer’s EPF contribution) deduct (-) income tax, living expenses and contractual benefits e.g. salary period during disablement period • Multiplicand • 12 ( represents 12 months to obtain annual income) • Multiplier • number of years purchase – Ibrahim bin Ismail & Anor (2004) 2 AMR 253 CA- the Courts have no authority to reduce the multiplier • Section 28A(2)(d)(i) & (ii)\ • Below the age of 30 = the multiplier is 16years of purchase • Between the age of 31-55 = determined by the formula 55 (minus) age of the P at the date of accident (divide) by 2 • Contingencies of life (COL) • The present judicial trend is to deduct 1/3 for living expenses- Rohani Tengkah (2004) 5 MLJ 289, Esah Binti Ishak (2006) 6 MLJ 1 • However in some cases court of the view not to deduct the COL- Noraini Binti Omar (2006) 3 AMR 185 CA • ( no final decision / unending problem) • Loss of earning capacity • There is real risk that the P might be thrown out of work at some future date • Applies to those P who may still work and earn money albeit lower than they earned before the injury (get a less paid employment because of the effect of his injuries) • Possible decrease in present income / risk of losing his present employment (if no employment and not receiving earning- can’t claim) • The capacity to obtain any other work is weakened after the injury. However loss of promotional prospects is not to be taken into consideration. • Requires strict proof- (can’t be speculative): e.g. medical evidence • Damages may be awarded on a total or partial basis depending on the evidence (Chong Chee Khong (1997)5 MLJ 786) • Moliker ( 1977) All ER, Chan San Chuan (1991) 1 CLJ 297at 307 and Tan Kim Chuan (1991) 1 CLJ 682 • Assessment • Actual loss and Multiplicant (12) and Multiplier (the appropriate multiplier by taking into account the age of P at trial, normal age of retirement or lump sum payment) • E.g. RM1500 x 10 years (normal period of retirement) x 12=.y • Earnings from illegal activities • Whether it is claimable? • No action will arise from a wrong done in resolving the issue • Court used this maxim ‘ex turpi cause non oritur actio’ and not render assistance to a person whose COA is found upon an immoral / illegal act -Chua Kim Suan (1994) 1 MLJ 394