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Court of Appeal of Malaysia |
] [Hide Context] 1. Ibrahim bin
Ismail
2. The Red Omnibus
Company Sdn Bhd …Perayu
1. Hasnah bt Puteh
Imat sebagai benefisiari
dan ibu yang sah kepada Bakri bin Yahya
dan menggantikan Yahaya bin Ibrahim
mengikut Perintah Mahkamah bertarikh
30hb November 1994
2. Azli bin Mohd ...Responden
(Dalam Perkara di Mahkamah Sesyen di Taiping
melalui Guaman Sivil No. 53-157-93
1. Hasnah bt Puteh Imat sebagai benefisiari
dan ibu yang sah kepada Bakri bin Yahya
dan menggantikan Yahaya bin Ibrahim
mengikut Perintah Mahkamah bertarikh
30hb November 1994
2. Azli bin Mohd ...Plaintif
1. Ibrahim bin Ismail
2. The Red Omnibus Company Sdn Bhd …Defendan
Dalam Perkara di Mahkamah Sesyen di Taiping
melalui Rayuan Sivil No. 12-6 Tahun 1995(T)
1. Hasnah bt Puteh Imat sebagai benefisiari
dan ibu yang sah kepada Bakri bin Yahya
dan menggantikan Yahaya bin Ibrahim
mengikut Perintah Mahkamah bertarikh
30hb November 1994
2. Azli bin Mohd Perayu
1. Ibrahim bin Ismail
2. The Red Omnibus Company Sdn Bhd …Responden)
1. Lai Wai Keet
1. Lai Wai Keet
1. Lai Wai Keet
Coram: Gopal Sri Ram, J.C.A.
Tengku
Baharuddin Shah, J.C.A.
Zaleha
Zahari, J.
JUDGMENT OF THE
COURT
1. These two appeals came up before us on the
same list. Their facts are
unconnected. But they have a common;
almost identical point of law. It has
to do with whether a court in a running down action, whether resulting in death
or personal injury has authority to reduce
the multiplier below the limit
prescribed by the sections 7 and 28A respectively of the Civil Law Act
1956. Section 7 has to do with the
damages recoverable in a fatal accident claim. Section 28A deals with damages recoverable for the loss of
future earnings in a personal injuries claim.
It is important to reproduce the relevant portion of each of these
sections.
2. Section (7)(3) in so far as is material reads:
“The damages which the party who shall be liable
under subsection (1) to pay to the party for whom and for whose benefit the
action
is brought shall, subject to this section, be such as will compensate
the party for whom and for whose benefit the action is brought
for any loss of
support suffered together with any reasonable expenses incurred as a result of
the wrongful act, neglect or default
of the party liable under subsection (1).
Provided that —
(iv) in assessing the loss of earnings in respect of
any period after the death of a person where such earnings provide for or
contribute
to the damages under this section the Court shall:
(a) take into account
that where the person deceased
has attained the age of fifty
five years at the time of his death, his loss of earnings for any period after his death shall not be taken into
consideration; and in the case of any
other person deceased, his loss of earnings for any period after his death shall be taken into consideration if it is
proved or admitted that the person
deceased was in good health but for the injury that caused his death and was receiving earnings by his own
labour or other gainful activity
prior to his death:
(b) take into account only
the amount relating to the earnings as aforesaid and the Court shall not take
into account any prospect
of the earnings as aforesaid being increased at any period after the
person's death;
(c) take into account any
diminution of any such amount as aforesaid by such sum as is proved or admitted to be the living expenses
of the person deceased at the time of
his death;
(d) take into account that in the case of a person
who was of the age of thirty years and below at the time of his death, the
number
of years’ purchase shall be 16; and in the case of any other person who
was of the age range extending between thirty one years and
fifty four years at
the time of his death, the number of years’ purchase shall be calculated by
using the figure 55, minus the age
of the person at the time of death and
dividing the remainder by the figure 2.”
3. Section 28A (2) (d) reads as follows:
“(2)(d) in assessing damages for loss of future
earnings the court shall take into account that —
(i) in the case of a person who was of the age of
thirty years or below at the time when he was injured, the number of years’
purchase
shall be 16; and
(ii) in the case of any other person who was of the
age range extending between thirty one years and fifty four years at the time
when he was injured, the number of years’ purchase shall be calculated by using
the figure 55, minus the age of the person at the
time when he was injured and
dividing the remainder by the figure 2.”
4. We emphasise that both sections 7 and 28A
use the phrase “shall be 16” when fixing the multiplier. Can a court reduce this further, to say, 10
years? A majority of the Supreme Court
in Chan Chin Ming v Lim Yoke Eng
[1994] 3 MLJ 233 answered that question in the affirmative. But Edgar Joseph Jr. SCJ, a most learned
judge whose judgments are entitled to great respect, registered a powerful
dissent. In our considered judgment,
the majority in that case were wrong.
It is the dissent that states the law correctly. We will now state the reasons for our
conclusion.
5. Chan
Chin Ming was a case where the victim of the road accident died. It was therefore a case that fell under
section 7. The deceased in that case
was 25 years at the date of the accident.
He was unmarried. His mother
brought a claim for loss of support.
At the trial, the defendants conceded that using the statutory formula
set out in section 7(3), a multiplier of 16 representing the
years of purchase
had to be applied. On appeal by the
defendant on quite another point (not relevant here) a majority of the Supreme
Court treated the concession as an
erroneous admission on a point of law. Relying on the authority of Societie Banque v Girdhari AIR 1940 PC
90, it took the view that it was not bound by such an admission. It then went on and reduced the statutory
multiplier from 16 to 7.
6. Peh Swee Chin SCJ (with whom Dzaiddin SCJ
agreed) gave the following reasons for his decision:
“Having regard to the state of the general system of
the law before the coming into force of sub-para (d) on 1 October 1984,
sub-para
(d) seems to be tailor-made for a claim by a spouse and children as
dependants in respect of a deceased spouse, because under the
general system of
law, both before and after the enactment of sub-para (d), the duration of a
claim for loss of support is usually
as long as the deceased’s loss of earnings
which would have been earned had the deceased lived.
On
the other hand, the state of the general system of law relating to a parent’s
claim as a dependant for loss of support in respect
of an unmarried child
before the enactment of sub-para (d) was that such loss of support would either
cease or be reduced considerably
on the almost invariable contingency of
subsequent marriage of such unmarried child. If the learned judge was right, it
would mean
that this aspect of the law was swept away or changed.
There
is one important principle of statutory interpretation which has been applied
repeatedly over the years. It is this, that it
is in the highest degree
improbable that Parliament would depart from the general system of law without
expressing its intention
with irresistible clearness. I find such clearness
missing. To give an example, Britain’s Courts of Judicature Act 1873 [sic] provided that an injunction might
be granted in all cases in which the court considered it ‘just and convenient’,
it was held by
the House of Lords in Beswick
v Beswick [
1968] AC 58 to the effect that such general words would still
mean that such injunction might be granted only in the usual infringement
of
recognized legal or equitable right. In other words, it is a fairly strong
presumption against alteration in the law except with
such irresistible
clearness expressed.
I do
not think it will come to this that arguments on this question of
interpretation are evenly balanced, and if it were so, I would
agree also ‘that
interpretation should be chosen which involves the least alteration of the
existing law’, per Lord Reid in George
Wimpey & Co Ltd v British Overseas Airways Corp [1955] AC 169 at p 191.
In
the result, I am unable to agree with the view of the learned trial judge that
sub-para (d) [of section 7(3) of the Act] applied
to the claim in the instant
case, ie the claim of a parent as dependant for loss of support in respect of a
deceased unmarried child.
I,
therefore, agree with the contention of the learned counsel for the defendants
that the number of years’ purchase should be reduced
and I hereby reduce it to
seven years, after taking into account the contingencies and circumstances in
this case.”
7. With respect, the majority failed to apply
the appropriate guide to statutory interpretation and hence fell into
error. What the majority addressed was
the practice of making multiplier deductions prevalent in respect of dependency
claims made by parents
prior to the amendments. But the correct position is that there was no mandatory rule for
deductions of the extent referred to by the majority. And more importantly, this was not the target of parliamentary
intervention.
8. In our respectful view, the majority ought
to have addressed the object or purpose of the amendments introduced by
Parliament by way
of sections 7(3) and 28A.
Had it done so, it would have discovered the mischief that Parliament
was targeting for cure.
9. Now, it is common knowledge that
Parliament’s purpose was to address the very high award of damages for personal
injuries and death. This resulted from
three causes. First, the application of
a flexible multiplier based on the facts and circumstances of each case. So, one could get a multiplier in excess of
16 years for a plaintiff or deceased who was below the age of majority. Second, the admission of an award for “lost
years”. As a result awards for loss of
future earnings were frequently handed down in favour of non-employed injured
plaintiffs or the estate
of deceased victims.
Very young children received huge awards based on their future prospects. In Yang
Salbiah & Anor v Jamil bin Harun [1981] 1 MLJ 292, for example, a 7
year old girl who had become vegetative was awarded a sum on excess of RM
30,000 for loss of future earnings based
on a multiplier of 25 years
purchase. Again, in Chan Boon Fatt v Lembaga Kemajuan Negeri
Pahang [1983] 1 MLJ 89, the dependants of a youth who was killed in an
accident just as he was about to enter university were awarded RM 15000 as loss
of
dependency for the lost years on a multiplier of 5 years purchase based on
an predicted income he never earned.
Third, a person who had attained or exceeded the age of 55 years could
claim for loss of future earnings.
Thus, in Tan Kheng Kuan v Lim
Cheng Teik [1965] 1 MLJ 116 a 56 year old plaintiff who was working as
a trishaw rider was awarded loss of future earnings. To emphasise, it is to prevent these types of awards that
Parliament acted. That is why you find
the fixed formula for the multiplier in the amendments.
10. It is a cardinal guide of statutory
interpretation that when a statute lays down a specific code or formula to meet
a particular
mischief of the common law, it is not open to the courts to treat
themselves as at liberty to continue to apply the common law in
disregard of
statute. The point was made in as
plain language as can be by Lord Herschell in Bank of England v Vagliano Bros [1891] AC 107 (at page 144):
“I
think the proper course is in the first instance to examine the language of the
statute and to ask what is its natural meaning,
uninfluenced by any
considerations derived from the previous state of the law, and not to start
with inquiring how the law previously
stood, and then, assuming that it was
probably intended to leave it unaltered, to see if the words of the enactment
will bear an
interpretation in conformity with this view.
If a
statute, intended to embody in a code a particular branch of the law, is to be
treated in this fashion, it appears to me that
its utility will be almost
entirely destroyed, and the very object with which it was enacted will be
frustrated. The purpose of such
a statute surely was that on any point
specifically dealt with by it, the law should be ascertained by interpreting
the language
used instead of, as before, by roaming over a vast number of
authorities in order to discover what the law was,….”
11. It is this very principle that the majority
in Chan Chin Ming breached
when purporting to interfere with the pre-determined statutory formula
applicable in the calculation of loss of earnings
in dependency and personal
injury claims. With great respect, the
majority in Chan Chin Ming
were exercising legislative and not interpretive jurisdiction.
12. There is a further point that the majority
in Chan Chin Ming
overlooked. The language of the
statute is imperative. It says that
“the number of years’ purchase shall
be 16”. The mandatory tenor of the
phrase employed by Parliament to convey its message excludes any pretended
exercise of judicial power to
substitute some other multiplier for that
intended. The result may be unfair to
insurers of vehicles. But that is
irrelevant. As Lord Macnaghten said in
Vacher & Sons Ltd v London
Society of Compositors [1913] AC 107, 118:
“Some people may think the policy of the Act unwise
and even dangerous to the community. Some may think it at variance with
principles
which have long been held sacred. But a judicial tribunal has
nothing to do with the policy of any Act which it may be called upon
to
interpret. That may be a matter for private judgment. The duty of the court, and its only duty, is to expound the language
of the Act in accordance with the settled rules of construction. It is,
I apprehend, as unwise as it is unprofitable to cavil at the policy of an Act
of Parliament, or to pass a covert censure
on the Legislature.” (Emphasis added.)
13. These are some of the matters that led Edgar
Joseph SCJ to enter a powerful dissent in these terms:
“I regret I have to part company with the majority
of the members of this court and say that I cannot accede to the submission of
counsel for the defendants regarding this part of the case as, to do so, would
be to fly in the face of the mandatory provisions
of proviso (d) to s 7(3)(iv)
of the Act, which fixes the multiplier at 16 years in cases such as the
present.
To
my mind, it is manifestly clear, that in enacting the detailed provisions of
proviso (d) to s 7(3)(iv), Parliament had intended
to take away the discretion
of the court to select the appropriate multiplier, in assessing loss of
earnings of a deceased person
in respect of any period after his death, for
purposes of a claim for loss of support under s 7(1).
If
counsel for the defendants were correct in his contentions, regarding this part
of the case, then the court could also, in an appropriate
case, in the exercise
of its discretion:
(1) in the case of a deceased person of the age of 30 years and below, increase the multiplier beyond 16 years; or
(2) in
the case of a deceased person of the age range extending between 31 years and
54 years, ignore the statutory formula provided and
select an appropriate
multiplier; or
(3) in
the case of a deceased person of the age of 55 years and above, select an
appropriate multiplier, when assessing loss of earnings
in respect of the
period after the death, although proviso (d) impliedly debars the court
altogether from making any such award.
In
other words, the effect of counsel for the defendants’ submissions, if upheld,
would mean that the court could, in any of the above
cases, rewrite the
statute, or brush aside explicit statutory provisions and select, in the exercise
of its discretion, a suitable
multiplier. This proposition is, in my view,
quite untenable, and has only to be stated to be rejected, bearing in mind that
when
a question of statutory interpretation arises, the duty of the court is
simply to give effect to the will of Parliament as expressed
in the law.”
14. We gratefully adopt in entirety the views
expressed by that very learned judge.
15. Our attention was drawn to in Takong Tabari v Government of Sarawak
& Ors [1998] 4 MLJ 512 where this Court applied the majority
judgment in Chan Chin Ming. A careful reading of the judgment in the Takong Tabari case makes it
clear that no argument as to the correctness of the decision in Chan Chin Ming was ever
addressed to this Court. That is not
the case here. In the instant appeals
counsel before us mounted a frontal attack on correctness of the majority
judgment in Chan Chin Ming. We therefore merely happen to be more
fortunate than the court in Takong
Tabari to deal with the assault on Chan
Chin Ming.
16. Having come to the conclusion that Chan Chin Ming was wrongly
decided by the majority in that case, are we entitled to depart from it? We think we are. Chan Chin Ming
was decided before the establishment of this Court. It was decided at a point of time when the High Court had
original jurisdiction over personal injury and fatal accident claims. Appeals were preferred to the Supreme Court
which stood at the apex of the judicature.
That is not the case today. All
personal injury and fatal accident claims are now solely within the
jurisdiction of the Subordinate Courts.
Appeals are to the High Court and finally to this Court. We therefore now stand at the apex in
respect of these claims. If a decision
– and more so as here a majority decision – of the former Supreme Court is
obviously wrong, then it is our plain duty
to say so. It will, with respect, be an abdication of our solemn duty to
simply fold our arms in abject submission and permit an erroneous statement
of
the law to continue to form part of our jurisprudence especially when it
results in an injustice to a litigant.
We draw support of the view we take of the matter from the fairly recent
case of Great Peace Shipping v
Tsalvliris (International) Ltd [2002] 4 All ER 689 where the English
Court of Appeal declined to follow its earlier decision in Solle v Butcher [1949] 2 All ER 1107 on the issue of the
existence of a jurisdiction in equity to grant rescission of a contract
untainted by common mistake at common
law.
It is of importance to note that the parameters of binding precedent
laid down in Young v Bristol
Aeroplane Co Ltd [1944] 2 All ER 293 did not prevent the Court in Great
Peace Shipping from departing from its earlier decision. The cases before us are much stronger in
the sense that the majority in Chan
Chin Ming literally re-wrote the statute that was before them merely
for interpretation.
17. With that we now turn to address each of the
two appeals before us on their respective facts.
18. In Ibrahim bin Ismail v Hasnah bt Puteh
(Civil Appeal No A-04-15-1999), there is an appeal and a cross appeal. The appeal is by the defendant in the
Subordinate Court. It is directed
against the failure by the trial and intermediate appellate courts to reduce
the damages for bereavement despite 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. The courts below were therefore plainly
wrong. The appeal is
irresistible. Counsel for the
respondent (plaintiff at first instance) did not resist it. We therefore allowed it. The plaintiff’s cross appeal relates to the
Chan Chin Ming point. The trial court applied the multiplier of
16 years prescribed by section 7(3)(iv)(d).
On appeal by the defendant the High Court reversed and reduced the
multiplier. The plaintiff now seeks a restoration
of the original award.
19. In our judgment, for the reasons given, the
trial judge was quite right in what he did.
We do not read the majority in Chan
Chin Ming as saying that there must be a reduction of the multiplier in
every case. All it says is that
despite the imperative statutory direction it was still possible in a given
case for a court to substitute a multiplier
of less than 16. Therefore, with respect, there was no duty
on the High Court to reverse in any event and it would not have infringed stare decisis if it had declined interference.
20. Like the appeal, the cross appeal is equally
irresistible. We allowed it.
21. The other appeal, Lai Wai Keet & Anor v
Looi Kwai Fong (A-04-27-1999) concerns a personal injury claim. The Sessions Court made an award for loss
of future earnings by applying the statutory multiplier set out in section 28A
(2)(d)(i). The High Court intervened
and further reduced the multiplier by a further ⅓. It relied on both Chan Chin Ming and Takong
Tabari. The plaintiff appealed
to us. We agree with his counsel’s
argument that it was illegal for the High Court to make a further deduction
from the imperative figure. The appeal
was accordingly allowed.
22. By consent, we made no order as to costs in
both appeals.
23. There is one final matter that needs to be
addressed. It is settled beyond doubt
that when calculating the loss of dependency under section 7 or the loss of
future earnings under section
28A, the prescribed statutory multiplier is to be
applied directly. Resort to the annuity
tables previously used is no longer permissible. For, when statute prescribes a multiplier, it is to be applied
directly. That was settled by the
Supreme Court in Marappan & Anor
v Siti Rahmah bte Ibrahim [1990] 1 MLJ 99. See also Hum Peng Sin
v Lim Lai Hoon [2001] 4 MLJ 232.
There should be no doubt about it now.
Dated November 1,
2003.
Gopal Sri Ram
Judge, Court of
Appeal
Malaysia
Putrajaya
Rayuan Sivil A-04-15-1999
Counsel for the
appellants: V.K. Dasaratharaj
Solicitors for
the appellants: T/n V.P. Nathan &
Partners
Counsel for the
respondents: Baldev Singh
Solicitors for
the respondents: T/n Syarikat Baldev Bhar
Counsel for the
appellants: Harbans Singh (Dalgit Singh
with him)
Solicitors for
the appellants: T/n Gurdev, Dalgit, Su &
Co.
Counsel for the
respondents: K. Selvanayagam
Solicitors for
the respondents: T/n L. Fernandez & Co.
Arguments heard
on September 22, 2003.
] [Hide Context]
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