The second condition set by section 28A(2)(c)(i) of the CLA 1956 before an award for loss of future earning can be awarded is the plaintiff must prove that he was in good health at the time of the injury. The term ‘shall’ in the section indicates that the requirement of good health is a condition precedent to the award. It can only be waived if plaintiff’s good health is voluntarily admitted by the defendant. In Sumarni v Yow Bing Kwong & Anor,76 the Court of Appeal reiterated the necessity of proving good health and held that the failure on the Appellant’s part to prove good health and the inability to work in the future precluded her from claiming the award for loss of future earnings. Similarly, Richard Malanjum JCA in Looi Gnan Peng v Bay Tong Hai,77 held;
“One of the other elements is that ‘damages for such loss shall not be awarded unless it is proved or admitted that the plaintiff was in good health but for the injury’.
On perusal of the evidence adduced we are in agreement with learned counsel for the respondent that none of the witnesses called by the
76
[2008] 3 CLJ 489.
86 appellant including the appellant herself testified on her overall health condition. No doubt in the medical reports it was stated that her general condition was satisfactory or good. But that could only refer to her condition after the accident and not on her overall health. A simple question to the medical doctors called as witnesses on her overall health condition could have resolved the doubt. Since that was not done we are of the view that one element required for a successful claim remained unproved.”
The condition of good health in section 28A (2)(c)(i) of the CLA 1956 abolishes judges’ power to determine whether damages for loss of future earnings is to be awarded. It also removed judges’ discretionary power to deduct the multiplier on account of plaintiff’s health. Once plaintiff’s good health has been proven or admitted, judges have to allow damages for loss of future earnings in full.
However, the compulsory nature of proving good health which leads to the conclusion that judges’ discretion is abolished by section 28A (2)(c)(i) of the CLA 1956 can been argued upon based on the following points;
(a) The uncertainty in interpreting the term ‘good health’
Section 28A (2)(c)(i) of the CLA 1956 does not provide the interpretation for the term good health. The term is also not defined by the interpretation section of the CLA 1956,78 the Interpretation Act 1967 (Act 388) or by the Legislature in the Explanatory Statement to the CLAA 1984 Bill. In fact, the Legislature had specifically left the task
87 of defining the term to the judges. During the Parliamentary Debate on the CLAA 1984 Bill, the then Deputy Home Minister in answering a question by Senator D.P Vijandran on the definition of the term good health commented;
“I am of the opinion that this matter should be left to the judges to decide. It is not for me to interpret it here.”79
However, despite the intention of the Legislature, none of the judges in the decided cases thus far had given a definite interpretation of the term.80
The ordinary dictionary meaning of good health is “the state of being vigorous and free from bodily or mental disease”.81
This definition is however too strict to be followed since ‘free from bodily and mental disease’ would necessitate the absence of any disease; a state which is very difficult to achieve. Due to this, the judge in Osman
Effendi b Mahmud & Anor. V Mohd Noh b Khamis,82opted the yardstick of questioning
whether the state of plaintiff’s health interferes with his life, profession or employment.83 Should the plaintiff was able to lead a normal life, perform his duties and earn income at the time of injury, he is presumed to be in ‘good health’ to satisfy the requirement in the section.KN Segara J held;
“In every motor accident case, where it has been established that the plaintiff had been gainfully employed immediately before the accident, there is always a presumption that plaintiff was in good health before the injury....”
79
Parliamentary Debates, Senate, (op. cit), at 159(Tn Radzi bin Sheikh Ahmad).
80Radhakrishnan, S., “Quantum of Damages in Personal Injury Claims”, (1995) 3 Malayan Law Journal, xxix – xl, at xxxiii. 81Rajasooria, J. Edwin, “Necessity of Proving Good Health”, 9th July 2010, The Malaysian Bar 8th November 2010,
<http://www.malaysianbar.org.my/index2.php?option=com_content&do_pdf=1&id=30358.>
82[1998] 4 AMR 3687. 83
Radhakrishnan, S., op. cit., at xxxiii. Also see Khoo, Guan Huat, “Assessment of Damages in Fatal Accident Claims and a Commentary of the Civil Law (Amendment) Act 1984”, (1993)1 Malayan Law Journal cxxix- cxxxviii, at cxxxv.
88 Similar interpretation was adopted in Loh Hee Thuan v Mohd Zaini bin
Abdullah,84where it was held that;
“The fact that he had lead a normal life up to the time of the accident had led evidence that he was ‘receiving earnings by his own labour or other gainful activities before he was injured’ is sufficient in my view to satisfy the requirement if proof as stated in s. 28A(2)(c)(i) of the Act.”
By virtue of this yardstick, although the plaintiff was suffering from some kind of illness, disease or medical problem at the time of the injury, he will still be entitle for the award for loss of future earnings if he manages to prove that he was gainfully employed prior to the injury or that his illness, disease or medical problem did not substantially affect his capacity to engage in remunerative activities. This is why in Loh Hee Thuan v Mohd Zaini bin Abdullah,85the plaintiff who have a history of diabetes mellitus, infarct in the right ganglia of the brain and hypertension was still considered in good health and was awarded the full multiplier under section 28A(2)(c)(i) of the CLA 1956. The judge did not consider his illness sufficient to constitute ‘poor health’. Once a plaintiff is considered to be in good health at the time of accident, he would be entitled to a full multiplier eventhough he is suffering from some kind of illness or disease which may affect his employment at a later date.
It is therefore submitted that the absence of the definition for the term good health enable judges to use their own discretion to determine what constitute good health. It also allows judges the discretion to decide on the nature and extend of plaintiff’s illness which will justify declaring the plaintiff to be in poor health. Section 28A(2)(c)(i) of
84
[2003] 1 AMR 332.
89 the CLA 1956 merely made it compulsory for the plaintiff to prove good health but it does not take away the discretionary power of the judges to determine whether plaintiff is in ‘good heath’ to satisfy the requirement in the section.
(b) The presumption of good health
Apart from the above, the decisions in Loh Hee Thuan v Mohd Zaini bin Abdullah86and
Osman Effendi b Mahmud & Anor. V Mohd Noh b Khamis87further support the notion
that judges still have the discretion on the issue of proving good health by disregarding the condition that plaintiff’s good health needs to be specifically proven by the plaintiff or admitted by the defendant. Instead of requiring the plaintiff to prove the he was in good health at the time of injury, the judges in these two cases presumed that the plaintiff were in good health even without any proof on the same. The judge in Loh Hee
Thuan v Mohd Zaini bin Abdullah88held;
“I do not think that the words “proved or admitted” that the plaintiff was in good health as found in s. 28A (2)(c)(i) of the Act must mean that the plaintiff entire medical records must be tendered before the court could make an award for loss of future earnings.
The fact that he had lead a normal life up to the time of the accident had led evidence that he was “receiving earnings by his own labour or other gainful activities before he was injured” is sufficient in my view to satisfy the requirement if proof as stated in s. 28A(2)(c)(i) of the Act.”
86Op. cit. 87
Op. cit.
90 Similarly, in Osman Effendi b Mahmud & Anor. V Mohd Noh b Khamis,89KN Segara J held;
“The requirement in law that it must be proved or admitted that plaintiff was in good health but for the injury, under section 28A(2)(c)(i) of the Civil Law Act 1956, was satisfied when a there was no challenges by the defendant whether specifically in his pleading or in his cross-examination of the plaintiff, as to the plaintiff health but for the injuries.
In the present case, there had been no suggestion at all that the first plaintiff was suffering from any form of ill health before the accident. Therefore, it must be deemed to be admitted that the plaintiff was in good health but for the injuries.”
The decisions in the above cases had shifted the burden of disproving good health to the defendant. In order to dispel the court’s presumption of good health, the defendant have to first direct the mind of the court to the possibility that the plaintiff was suffering from some medical problem which may constitute ‘poor health’. Failure to do so will constitute an admission by the defendant of plaintiff’s good health. In Loh Hee
Thuan v Mohd Zaini bin Abdullah, the judge held;90
“Since Mr Ramanathan had conceded that he did not raise the issue before the learned session court judge, it is my judgement that by his conduct he had ‘admitted’ that the plaintiff was in good health and that such conduct is sufficient in my view to satisfy the requirement of the word ‘admitted’ as stated in section 28A(2)(c)(i) of the Act.”
89
Op. cit.
91 Judges’ discretion to presume that the plaintiff was good health is also supported by KS Dass and Altaf. KS Dass in his book argued that good health need not be proven or admitted. To require a plaintiff who was gainfully employed at the time of injury to prove that he was in good health is “a sheer waste of time” and “unnatural”.91
On similar vein, Altaf also opined that the pre-condition of proving good health “impose an unduly high burden of proof to qualify for an award in damages for loss of earnings.”92
Recently, J. Edwin Rajasooria, a legal practitioner also commented that the approaches taken by the courts in Loh Hee Thuan v Mohd Zaini bin Abdullah93and Osman Effendi
b Mahmud & Anor. V Mohd Noh b Khamis,94is preferable from practical point of view
due to the difficulty in actually proving that the plaintiff was in good health. He explained that although the law does not require the plaintiff’s complete medical records to be tendered in court in order to prove good health, the requirement of proving good health is still very difficult to fulfil especially if the plaintiff does not have proper medical record, never seek medical treatment before or have sought medical treatment from many clinics and hospitals that it would be difficult to obtain a complete record to prove his good health. As such, it is “more practical and more realistic”95
to presume that a plaintiff who had been earning prior to the injury was also of good health.
Based on the above, the effect of section 28A (2)(c)(i) of the CLA 1956 in abolishing judges’ discretionary power seems to have been negated. Judges not only have the discretionary power to interpret the term good health, they also have the discretion to
91
Dass, K.S., op. cit. (1997), at 65.
92Muhammad Altaf Hussain Ahangar,, “Judicial Responses to Damages Law in Malaysia: An Analysis”, 5thAsian Law Institute
Conference, (Singapore, 22-23 May 2008).
93Op. cit. 94Op. cit.
95Rajasooria, J. Edwin, “Necessity of Proving Good Health”, 9th
July 2010, The Malaysian Bar 8th November 2010, <http://www.malaysianbar.org.my/index2.php?option=com_content&do_pdf=1&id=30358.>
92 presume that the plaintiff was in good health even without any specific evidence to the same.
The presumption of good health however must be treated with caution. Despite the practicality of the approach, it can be seen as a direct contradiction of section 28A (2)(c)(i) of the CLA 1956. Eventhough the courts in Loh Hee Thuan v Mohd Zaini bin
Abdullah96and Osman Effendi b Mahmud & Anor. v Mohd Noh b Khamis,97held that
defendant only need to challenge the ‘good health’ in order to dispel the presumption of good health and trigger the requirement of proving good health, the decisions have clearly disregarded the compulsory nature of proving good health set in section 28A(2)(c)(i) of the CLA 1956. The phrase ‘damages for such loss shall not be awarded unless it is proved or admitted that plaintiff was in good health but for the injury’ in the section clearly requires plaintiff’s good health to be strictly proven or admitted by the defendant. The section is clear and does not leave any avenue for other interpretation. Any attempt to depart from this pre-condition due to any reason, would be flying in the face of strict statutory provision. It is submitted that the courts in Loh Hee Thuan v
Mohd Zaini bin Abdullah98 and Osman Effendi b Mahmud & Anor. V Mohd Noh b
Khamis,99had chosen to exercise their discretion in interpreting the requirement of
proving good health in the above manner in order to avoid hardship and inconvenience to the plaintiff.
Therefore, as it stands, section 28A (2)(c)(i) of the CLA 1956, only accords judges with the discretion to interpret the term good health. This discretion is intentionally given by the legislature to the presiding judges. Judges however have no discretion to presume 96Op. cit. 97Op. cit. 98 Op. cit. 99 Op. cit.
93 that plaintiff was in good health without specifically proven by the plaintiff or admitted by the defendant.
Further, since section 28A (2)(d) of the CLA 1956 provide specific multiplier for the assessment for loss of future earnings, the plaintiff will be entitle to the full statutory multiplier once he was declared to be ‘in good health’ eventhough he is suffering from some kind of medical problem which may affect his employment in the future. Unlike the situation prior to the 1984 amendment, judges nowadays have no discretion to reduce the multiplier to suit the plaintiff health condition. The pre-amendment cases showed that while poor health did not totally bar the plaintiff from receiving the award for loss of future earnings (unless it prevented him from earning altogether), the poor health was taken as one of the reason to reduce the multiplier for the award. In Yaakob Fong v Lai Mun Keong & Ors.100 For example, a fifty one (51) years old man with ischemic heart disease was awarded loss of future earnings. The multiplier however was only for six (6) months.
Therefore, it is concluded that the introduction of the condition of proving good health have partial effect on the judge’s discretionary power in awarding the award for loss of future earnings in personal injury claims arising out of motor vehicle accidents. Judges have no discretion in deciding whether plaintiff is entitle to the award. They must allow the award in full if the plaintiff manages to prove that he was in good health or the defendant concedes plaintiff’s good health. Judges however still retain the discretion to interpret what constitute good health which will enable them to allow the award for loss of future earnings to the plaintiff. Since the judges have to allow full multiplier for the award if the plaintiff manages to prove good health, the section also does not contribute
94 much in reducing the quantum for the award for future loss of earningsin personal injury claims arising out of motor vehicle accidents.