Prior to the CLAA 1984, judges in Malaysia had a wide discretion to determine the maximum working age in which plaintiff can be compensated for loss of future earnings. There was no absolute maximum period limiting plaintiff’s working life. The calculation of plaintiff’s maximum working life depended on the nature of his employment, education, age, individual lifestyle, health and financial encumbrances. Although the retirement age is often held at fifty five (55) years old,59 judges were at liberty to allow the award for loss of future earnings to plaintiff who had passed this age should there be evidence to show that he was indeed working, capable of working or required to work beyond the normal retiring age of fifty five (55).60
Section 28A (2)(c)(i)of the CLA 1956 statutorily adopt fifty five (55) years old as the maximum working life in the assessment of loss of future earnings.61Fifty five (55)
59See Murtadza bin Mohamed Hassan v Chong Swee Pian [1980] 1 MLJ 216, Lai Wee Lian v Singapore Bus Service [1984] 1 MLJ
325 and RJ Mc Guiness v Ahmad Zaini [1980] 2 MLJ 304.
60Balan, P.,“Damages for Personal Injuries Causing Death: A Critical Survey”, (2004) Journal of Malaysian and Comparative Law,
45 – 67, at 46.In Weng Kong v Yee Hup Transport Co. & Ors.[1966] 2 MLJ 234, the court adopted sixty five (65) years old as working age and awarded damages for loss of future earnings to a fifty five (55) years old plaintiff. Similarly, in Chinnakaruppan v
Abdul Wahab bin Ahmad (Unreported) cited in Dass, K.S., Quantum in Accident Cases, vol. 1, (Kuala Lumpur: Malaysian Law
Publishers, 1975), at 30, plaintiff who was more than seventy (70) years old was awarded damages for loss of future earnings when he managed to prove that he was working as a gardener at the time of injury.
80 years old is considered as the cut-off age for the award for loss of future earnings. By virtue of this provision, judges no longer have the discretion to award damages for loss of future earnings for plaintiff who had attained or passed the age of fifty five (55) years old at the time of injury irrespective of whether thehewas working or capable of working beyond that age. The plaintiff in Tan bin Hairuddin v Bayeh a/l Belalat62 for example was denied claim for loss of future earning on account of him being fifty five (55) years old at the time of injury. The judge in this case held;
“My opinion is that section 28A(2)(c) of the Civil Law Act 1956 is clear that a person age 55 or more at the time of injury was sustained cannot be awarded any damages for the loss of future earnings. The important date in the said provision is the date of injury and on that date the respondent / plaintiff was already more than 55 years old.”
The cut-off age sometimes can lead to injustice to the plaintiff. In situations where plaintiff had attained the age of fifty five (55) years old but was still working at the time of injury, the application of section 28A (c)(i) of the CLA 1956 will prevent him from being awarded damages for loss of future earnings. Because of this injustice, some scholars had come up with a different interpretation of the section. K.S. Dass in his commentary of the CLAA 198463 opined that section 28A(2)(c)(i) of the CLA 1956 does not take away the judges’ discretionary power to award damages for loss of future earnings for plaintiff who had passed the age of fifty five (55) years old. He claimed that since section 28A(2)(d) of the CLA 1956already provides for the assessment of multiplier for loss of future earnings for persons under the age of fifty five (55) years
62[1992] 2 CLJ 773.See also Lo Kit Pin v Fu Khet Nyuk (Deceased) Liew Nyuk Jin & Anor [1999] 1 LNS 32.
63
Dass, K.S., Quantum of Damages in Personal Injury, Parliament v Common Law, a Critical Examination of the 1984
81 old,64 the term ‘in any other case’ in the second limb of section 28A(2)(c)(i) of the CLA 1956 which requires plaintiff to prove that he was in good health and receiving earnings prior to the injury must have been specifically drafted to deal with persons who had passed the age of fifty five (55) years.65 To require a young person (below the age of fifty five (55)) to proof good health when he was clearly earning at the time of injury would ‘entail ridiculous result - injustice’.66
From the above analysis, KS Dass concluded that section 28 (2)(c)(i) of the CLA 1956 only bar the award for loss of future earnings to plaintiff who was fifty five (55) years old. Judges however still retain the discretion to award damages for loss of future earnings to plaintiff who had passed the age of fifty five (55) years old provided that he can prove he was in good health and gainfully employed at the time of injury.
In support of the KS Dass’s opinion, Michael F. Rutter commented that the question of whether plaintiff in personal injury cases in Malaysia can claim for post-retirement income (any earnings receive after the age of fifty five (55)) is still unanswered.67 He opined that section 28A(2)(c)(i) of the CLA 1956 is so poorly drafted that it allows for ambiguity with regard to the status of plaintiff who was beyond the age of fifty five (55). He argued that the section did no abolish or put any limit to these persons. The section in fact is silent on this regard.68
It is however submitted that KS Dass and Rutter’s opinion above is not without flaws. KS Dass’s opinion rests on a faulty interpretation of interpretation of section 28A (2)(c)(i) of the CLA 1956. KS Dass equated section 28A (2)(c)(i) of the CLA 1956
64The multiplier for plaintiff who is thirty (30) years old and below is sixteen (16). The multiplier for those above the age of thirty
(30) years old is calculated according to the formula of fifty five (55) minus the age at the time of accident divide by two (2).
65Dass, K.S., op. cit., (1997), at 65. 66Ibid.
67
Rutter, Michael F. op. cit., (1993), at 654.
82 with proviso (iv)(a) to section 7(3) of the same Act. By reading the sections in similar manner, KSDass failed to differentiate the phrase ‘any other person’ in proviso (iv)(a) to section 7(3) of the CLA 1956 with ‘in any other case’ in section 28A (2)(c)(i) of the Act. It should be noted that while the phrase ‘any other person’ in proviso (iv)(a) to section 7(3) of the CLA 1956 may possibly be interpreted as referring to deceased who had passed the age of fifty five (55) years old, the phrase ‘in any other case’ in section 28A(2)(c)(i) of the Act cannot be read as such. Unlike proviso (iv)(a) to section 7(3) of the CLA 1956, section 28A(2)(c)(i) of the Act states ‘plaintiff who had attained the age of fifty-five years or above... no damages for such loss shall be awarded...’.Because of this provision, judges are clearly barred from awarding the award for loss of future earnings to persons who had attained or passed the age of fifty five (55) years old at the time of injury. It does not merely bar the award for loss of future earnings to plaintiff who was fifty five (55) years at the time of injury while allowing the award to those who had passed that age as claimed by KS Dass.
KS Dass’s suggestion that “a living plaintiff who was fifty five (55) and above at the time of injury could claim for loss of future earnings”69
is unacceptable in light of the specific statutory prohibition. Edgar Joseph SCJ in Chan Chin Ming v Lim Yok Eng70quoting Hasyim Yeop Sani SCJ in Mohammed Noor bin Othman &Ors. V Haji
Mohammed Ismail bin Haji Ibrahim & Ors.71stated;
“... it is trite law that where the words of a statute are clear, there is no room for court to go beyond the express language of the statute.”
69Dass, K.S., op. cit. (1997), at 65. 70
[1994] 3 MLJ 233.
83 Since the provision in section 28A (2)(c)(i) of the CLA 1956 is very clear and specific, there is also no question of ambiguity and uncertainty in the wording of the provisions as claimed by Rutter.
Further, KS Dass’s interpretation of section 28A (2)(c)(i) of the CLA 1956 is also questionable on the ground that it will lead to two (2) illogical results. First, it allows the award for loss of future earnings to plaintiff who had passed the age of fifty five (55) years old while barring it those who was fifty five (55) years old at the time of injury. Second, it allows judges to use their discretion in deciding the multiplier for loss of future earnings for plaintiff who had passed the age of fifty five (55) years old while prescribing specific formula for plaintiff who was below the age of fifty (55) at the time of injury. To do so will open up the possibility that plaintiff who had passed the age of fifty five (55) years old receiving more compensation then those below fifty five (55) years old. While a fifty four (54) years old plaintiff is only entitled to a maximum of six (6) months multiplier,72 a fifty six (56) years old claimant could be receiving more than that.73To assume that these two absurd effects are the effects the legislature had envisaged while drafting the CLAA 1984 is illogical.
It is therefore submitted that section 28A (2)(c)(i) of the CLA 1956 has indeed removed the judge’s discretion to award damages for loss of future earnings to plaintiff who had attained the age of fifty five (55) years old. The notion that the section is not applicable to plaintiff who had passed the age of fifty five (55)years old at the time of injury as suggested by KS Dass and Rutter is simply they effort to naturalized the effect of the provision on the plaintiff who was actually earning an income at the date of injury
72 Maximum multiplier for loss of future earnings for plaintiff aged fifty four (54) years old. 73
Since judges have the discretion to determine the multiplier for plaintiff who had passed the age of fifty five (55) years old, they are at liberty to award more than six (6) months multiplier for loss of future earnings.
84 despite attaining the age of fifty five (55) years old. To allow damages for loss of future earnings to plaintiff who had passed the age of fifty five (55) years old is a contradiction of the intention of the legislature. Since it is commonly accepted that the reason behind the 1984 amendment is to control the escalation of awards in personal injury claims due to among others, the awards for loss of future earnings for plaintiff who had attained the age of fifty five (55) years old,74 the Legislature was trying to prevent judges from allowing the award for loss of future earnings to plaintiff who had reached the age of retirement at the time of accident. As such, any other interpretation of the section would be flying in the face of the legislative intention. Hence, it is concluded that judges’ discretion in awarding damages for loss of future earning in personal injury claims is removed. At the same time, the same discretion in respect of personal injury claims arising out of motor vehicle accidents cases is also abolished.
The introduction of this pre-condition in certain cases can also be said as a mere codification of existing practices of the local judges. Some of the pre-1984 cases indicated that judges sometimes had (but not as strict rule) taken fifty five (55) years old as the retiring age and assumed that a person’s earning would cease at that age.75
In these cases, the introduction of the pre-condition that plaintiff must be below the age of fifty five (55) years old at the time of injury by section 28A (2)(c)(i) of the CLA 1956 have no effect on the exercise of judicial discretion. It merely abolishes the discretion which the judges had on its own generally chosen to disregard.
74Per Gopal Sri Ram JCA in Ibrahim bin Ismail & Anor. V Hasnah bin Puteh Imat [2004] 1 CLJ 797.
75Balan, P., op. cit. (2004), at 46.Also seeParliamentary Debates, Senate, Sixth Parliament, Second Session, 3rd August 1984, at 134
(Tuan Radzi Sheikh Ahmad).In Mat Jusoh bin Daud v Syarikat Jaya Seberang Takir Sdn. Bhd. [1982] 2 MLJ 71, Salleh Abbas FJ in deciding the multiplicand for loss of future earning capacity, assumed that the Plaintiff would be working until the age of fifty five (55) only and calculated the multiplier for the award with that assumption in mind. Similarly, the Supreme Court in Ahmad
Nordin bin Haji Maslan & Anor.v Eng Ngak Hua &Ors. [1985] 2 MLJ 431 also noted that there was a general disposition among
the local courts toward taking fifty five (55) years old as the retirement age. Because of this, the trial court’s finding that the deceased retirement age would be 65 was declared excessive and reduced to fifty five (55). A Brunei decision in RJ McGuinness v
Ahmad Zaini [1980] 2 MLJ 304 also indicates that plaintiff would continue to work until the age of fifty five (55). Thus, implying
that plaintiff’s retirement age would be at fifty five (55) years old. In the light of these pre-1984 cases, it is clear that the judges have always considered fifty five (55) as the retirement age even without having specific statutory provision and rarely award damages for loss of future earning beyond that age.
85 By limiting the award for loss of future earnings to plaintiff who is below the age of fifty five (55) years old only, section 28A (2)(c)(i) of the CLA 1956 has the effect of reducing the quantum of damages being awarded by the courts under personal injury claims. A portion of damages which may be awarded to the plaintiff under the pre-1984 rule is removed. The same effect can also be seen in the personal injury claims arising out of motor vehicle accidents.