Court of Appeal of Malaysia

DALAM MAHKAMAH RAYUAN MALAYSIA

(BIDANG KUASA RAYUAN)

RAYUAN SIVIL NO. K-04-141-2002

ANTARA

1.   NORAINI BT OMAR

     (Seorang isteri kepada simati, Ku Mansor bin

      Baharom, dan ibu kepada simati, Ku Amirul bin

     Ku Mansor)

2.   KU AMIR FAIZ BIN KU MANSOR                                  …    PERAYU-

     (Seorang budak melalui ibu/sahabat wakilnya,                  PERAYU

      Noraini bt Omar)

DAN

ROHANI BIN SAID                                                                  …   RESPONDEN

[ Dalam Mahkamah Tinggi Malaya di Alor Setar

Rayuan Sivil No. 12-26-2000

Antara

ROHANI BIN SAID                                                                   …    PERAYU

Dan

1.   NORAINI BT OMAR

     (Seorang isteri kepada simati, Ku Mansor bin Baharom,

     dan ibu kepada simati, Ku Amirul bin Ku Mansor)

2.   KU AMIR FAIZ BIN KU MANSOR                                     

     (Seorang budak melalui ibu/sahabat wakilnya,                          …    RESPONDEN-

     Noraini bt Omar)                                                                           RESPONDEN ]

RAYUAN SIVIL NO. K-04-71-2003

ANTARA

1.   VEERAMA A/P VEERAN adalah ibu yang sah

     kepada CHANDRAN A/L C. PANIAPPEN                    …        PERAYU-

2.   CHANDIRAMURTHI A/L KRISHNAN                                    PERAYU

DAN

CHUAH LEE THENG                                                           …       RESPONDEN

[ Dalam Mahkamah Tinggi Malaya di Alor Setar

Rayuan Sivil No. 12-47-2000

Antara

CHUAH LEE THENG                                                  …      PERAYU

Dan

1.   VEERAMA A/P VEERAN adalah ibu yang sah

     kepada CHANDRAN A/L C. PANIAPPEN                       …      RESPONDEN-

2.   CHANDIRAMURTHI A/L KRISHNAN                          RESPONDEN ]

[ Dalam Mahkamah Sesyen (2) di Alor Setar

Guaman Sivil No. 53-484-1996

Antara

1.   VEERAMA A/P VEERAN adalah ibu yang sah

     kepada CHANDRAN A/L C. PANIAPPEN                    …        PLAINTIF-

2.   CHANDIRAMURTHI A/L KRISHNAN                        PLAINTIF

Dan

CHUAH LEE THENG                                               …       DEFENDAN ]

Coram :        Abdul Aziz Mohamad, JCA

                               Arifin Zakaria, JCA (now FCJ)

                               Nik Hashim Nik Ab. Rahman, JCA (now FCJ)

JUDGMENT

( of Abdul Aziz Mohamad, JCA )

1.          In appeal   No. 141, the first appeal, the deceased was a married man aged 33 when he died.   The persons who suffered loss of support by his death were his widow and son.   In compliance with subparagraph (d) of paragraph (iv) of the proviso to subsection (3) of section 7 of the Civil Law Act 1956 (“the said subparagraph (d)”), the learned Sessions Court Judge found the number of years’ purchase to be eleven (132 months) and, applying that to a multiplicand of RM500 per month, arrived at RM66,000 for loss of support.   Since the deceased was 20% liable, the amount awarded for loss of support was RM52,800.   On appeal to the High Court, the learned Judicial Commissioner ruled that there should have been a deduction of one-third on account of contingencies, vicissitudes of life and accelerated payment.   So from RM52,800 he deducted RM17,600, being one third of RM52,800, thereby reducing the award to RM35,200.

2.          In appeal No. 71, the second appeal, the deceased was an unmarried man aged 23 when he died.   The person who suffered loss of support by his death was his mother.   In compliance with the said subparagraph (d), the learned Sessions Court Judge found the number of years’ purchase to be sixteen (192 months) and, applying that to a multiplicand of RM600 per month, arrived at RM115,000 (rightly RM115,200) for loss of support.    Since the defendant’s liability was 100%, that was the award for loss of support.   On appeal to the High Court, the learned Judge reduced the number of years’ purchase from 16 to 7.

3.          In making the reduction in both the cases, the High Court purported to follow the majority decision of the Supreme Court in Chan Chin Ming & Anor v Lim Yok Eng [1994] 3 MLJ 233, where the deceased was an unmarried man who was 25 when he died and the dependent who suffered loss of support by his death was the mother.   In that case the High Court was the trial court.   In the High Court the defendants conceded that in compliance with the said subparagraph (d) the number of years’ purchase should be sixteen but apparently they went on to submit that in view of the contingency of the marriage of the deceased had he lived, the amount for loss of support should be reduced.   This is gathered from the following words of Peh Swee Chin SCJ at page 242 F:

“Having so conceded, it was then surprisingly submitted by the defendants that such loss of dependency (ie support) would have reduced or ceased in the event of the deceased son getting married had he lived.   Such ordinarily unacceptable submission in view of the said act of conceding aforesaid was made both in the court below and before us.   Could the defendants do so?”

From page 242 H-I it would appear that the trial judge had been of the view that the 16 years should not be reduced because the said subparagraph (d) had fixed it after taking into consideration the possibility of marriage of a deceased unmarried man if he had not died.   Peh Swee Chin SCJ then entered upon a consideration of whether the judge was right.   Among the matters that he took into consideration that I find significant was his conception that a claim for loss of support by the parents of an unmarried deceased was not the same as a claim for loss of support by the wife and children of a deceased spouse, for which, he said, the said subparagraph (d) seemed to be tailor-made.   This was what he said at page 243 D-G:

“            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.”

He stated his conclusion in the following words at page 244 A-C:

“            In the result, I am unable to agree with the view of the learned trial judge that sub-para (d) 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.”

By “the contingencies and circumstances in this case”, Peh Swee Chin SCJ must have been thinking mainly of the fact that the deceased was unmarried.

4.          Considering what I have set out about the majority decision in that case, it is clear to me that the decision was only a decision on loss of support where the deceased was unmarried.   If the case was a claim by a wife and children, in view of Peh Swee Chin SCJ’s view that the said subparagraph (d) was tailor-made for such a claim, the number of years’ purchase might not have been reduced.   The High Court in appeal No. 141 therefore erred in relying on Chan Chin Ming to reduce the award by one-third.   For that reason I would allow the appeal and order that the award of the Sessions Court be reinstated.

5.          Appeal No. 71 depends on whether Chan Chin Ming is binding on this court.   Notwithstanding that it was a majority decision, it was a decision of a court of a higher tier, and the apex court at that.   That a court has to accept loyally a considered decision of a court of a higher tier and is not entitled to question it was reiterated by Lord Hailsham in the following passage in Cassell and Co Ltd v Broome [1972] AC 1027 which, in The Co-operative Central Bank Ltd v Feyen Development Sdn. Bhd. [1997] 3 CLJ 365, the Supreme Court adopted and   appears at page 373 g:

“The fact is, and I hope that it will never be necessary to say so again, that in the hierarchical system of Courts that exists in this country, it is necessary for each lower tier, including the Court of Appeal, to accept loyally the decisions of the higher tiers.   Where decisions manifestly conflict, the decision in Young v The Bristol Aeroplane Co. offers guidance to each tier in matters affecting its own decisions.   It does not entitle it to question considered decisions in the upper tiers with the same freedom.”

We have to accept the decisions of the higher court even if we do not agree with them, and as regards the decision in Chan Chin Ming , there is no necessity for me in this appeal to say whether I think the decision was right or wrong.

6.          In Takong Tabari v Government of Sarawak [1998] 4 MLJ 523, this court (Shaik Daud, Siti Norma Yaakob and Ahmad Fairuz JJCA) decided that they were bound by Chan Chin Ming   The deceased was a married man and the claim for loss of support was by the widow who was dissatisfied by the High Court’s deduction of one-third for contingencies, other vicissitudes of life and accelerated payment.   The widow, undoubtedly assuming that Chan Chin Ming would apply to all cases, and not only, as is my opinion, to cases of deceased bachelors, did argue against the majority decision in Chan Chin Ming   This is reflected at page 522 G-I:

“            It is the widow’s contention that such a deduction is contrary to law as by the introduction of proviso (d) to s 7(3)(iv) of the Act on 1 October 1984, the discretion to deduct a sum for contingencies, other vicissitudes of life and accelerated payment at common law is now no longer available and with the replacement of that common law practice, there is already a built-in deduction in the statutory formula itself and a further deduction as was done in this case was not proper.   She contends that the estate is entitled to be paid the total sum of RM270,000 for her claim for loss of dependency.   For this contention, she relies on the minority decision of the Supreme Court in the case of Chan Chin Ming & Anor v Lim Yok Eng [1994] 3 MLJ 233.”

7.          The correctness of the decision in Chan Chin Ming was again questioned and argued on in Teoh Teik Chai v Muhamad bin Hashim (Civil Appeal No. P-45-95) (unreported).   The deceased was an unmarried man aged 24 when he died.   The High Court decided that the number of years’ purchase was eight instead of sixteen.   Again this court (Mokhtar Sidin, Abdul Kadir Sulaiman, K.C. Vohrah JJCA) decided, on June 25, 2002 , that they were bound by the decision in Chan Chin Ming

8.          It was in Ibrahim bin Ismail & Anor v Hasnah bte Puteh Imat [2004] 1 MLJ 525 that this court [Gopal Sri Ram, Tengku Baharudin Shah JJCA, Zaleha Zahari J (now JCA)], after concluding, for reasons given in paragraphs [7] to [14], that Chan Chin Ming was wrongly decided by the majority, decided that this court is entitled to depart from Chan Chin Ming   The reason for the decision was given in the following words of Gopal Sri Ram JCA at page 536 E-G:

“            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.”

Ibrahim bin Ismail was followed by this court (Abdul Malek Ahmad PCA, Arifin Zakaria, Tengku Baharudin Shah JJCA) in Cheng Bee Teik & Ors. v Peter a/l Selvaraj & Anor. [2005] 4 MLJ 301.

9.          So I am now faced with two conflicting decisions of this court as to whether Chan Chin Ming is binding on this court.   The decision in the two earlier cases, Takong Tabari and Teow Teik Chai , is that it is binding.   It is in strict compliance with the principle of the binding effect of considered decisions of a court of a higher tier as emphasized by the Supreme Court in the Feyen case.   The decision in the two later cases, Ibrahim bin Ismail and Cheng Bee Teik , is that Chan Chin Ming is not binding on this court and this court is entitled to depart from it.   According to Young v Bristol Aeroplane Co Ltd [1944] 2 All ER 293, at page 300 F-G: “The court is entitled and bound to decide which of two conflicting decisions of its own it will follow”.

10.        I will follow the two earlier decisions because, with great respect, I am of the view that the reason given in Ibrahim bin Ismail for saying that this court may depart from Chan Chin Ming is fallacious.   It proceeds from the perception that this court is now the apex court in respect of “All personal injury and fatal accident claims”.   But this court is not the apex court in respect of all personal injury and fatal accident cases or in respect of the interpretation of the said subparagraph (d).   By virtue of section 65(1)(a) of the Subordinate Courts Act 1948, “all actions and suits of a civil nature in respect of motor vehicle accidents” are triable by the Sessions Court.   And by virtue of section 67(1) section 96(a) of the Courts of Judicature Act 1964, this court is the apex court in respect of decisions of the subordinate courts in any civil causes or matters.   Therefore this court is the apex court for civil actions and suits in respect of motor vehicle accidents.   But section 7 of the Civil Law Act 1956 does not apply only to deaths resulting from motor accidents.   It applies to deaths caused by any “wrongful act, neglect or default” [subsection (1)].   There will be cases of such deaths, not arising from motor accidents, such as Takong Tabari , where the deceased died in an explosion at the premises of a bank, and such cases will be tried by the High Court where the claim exceeds two hundred and fifty thousand ringgit, the Sessions Court’s limit of jurisdiction under section 65(1)(b) of the Subordinate Courts Act 1948.   In such cases the apex court will be the Federal Court, and where they involve questions arising under section 7 of the Civil Law Act 1956, including questions arising under the said subparagraph (d), the Federal Court will be the apex court in relation to such questions.  

11.        It was submitted by learned counsel for appellant in appeal No. 71 that had the earlier decision of the Supreme Court in Marappan & Anor v Siti Rahmah bte Ibrahim [1990] 1 MLJ 99 been cited in Chan Chin Ming , the majority in Chan Chin Ming would have held Marappan   as binding and therefore we are at liberty to follow the decision in Marappan   It was a case of personal injury that did not result in death, sustained in a motor accident when the plaintiff was 23 years old.   Paragraph (d)(i) of subsection (2) section 28A of the Civil Law Act 1956 provides as follows:

“(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;”

The number of years’ purchase in subparagraph (i) corresponds with that in the first limb of the said subparagraph (d) in section 7.   Although both parties had agreed to a multiplier of 15, as the number of years’ purchase, the High Court had awarded a multiplier of 16. The Supreme Court ruled at page 101A (right) that the High Court was right because the language of the provision is mandatory.

12.        I do not think that the decision in Marappan would have influenced the majority in Chan Chin Ming because in Chan Chin Ming the consideration that influenced their decision was the length of support that a dependent parent could be expected to enjoy from a deceased child had he continued to live, in view of the contingency of his marriage.   That consideration did not exist in Marappan because it was not a claim for loss of support by dependants but a claim for loss of future earnings by the injured person herself.

13.        Since I am of the view that the decision in Chan Chin Ming is binding on this court, I would dismiss appeal No. 71.   As I said, I would allow appeal No. 141.

Dated:   17 February 2006

DATO' ABDUL AZIZ BIN MOHAMAD

Judge

Court of Appeal , Malaysia

Civil Appeal No. K-04-141-2002

Counsel for the appellants:        Aidi Abdullah

Solicitors for the appellants:       Messrs N.M. Tiong & Co.

Counsel for the respondent:       V.K. Dasaratharaj

Solicitors for the respondent:   Messrs V.P. Nathan & Partners

Civil Appeal No. K-04-71-2003

Counsel for the appellants:        Brijnandan Singh Bhar

Solicitors for the appellants:       Messrs Brijnandan Singh Bhar & Co.

Counsel for the respondent:       Jamal Ridzuwan Musa (Leslie Bala with him)

Solicitors for the respondent:   Messrs Othman Hashim & Co.

D:J-K0414102[CAV]

8..2..2006