Abdul Malik Ishak J:

[1] This was a dependency claim under s. 7 of the Civil Law Act 1956 (Act 67) (Revised 1972) by the plaintiff and her two children for the death of her husband by the name of Chong Sey Kow ('the deceased') in a road accident on 7 December 1992 at about 10am at 14275 milestone along the stretch of Jalan Utama/Jalan Kota Tinggi/Johor Bahru road.At that material time the deceased was riding a motorcycle bearing registration number JCM 958 in the direction of Kota Tinggi when a motor lorry bearing registration number JCK 3329 driven by the first defendant as servant or agent of the second defendant from the opposite direction collided into the path of the deceased's motorcycle.That collision was fatal.Encroachment was emphasised in the plaintiff's statement of claim as well as the statement of defence of the third party.This augurs well for the plaintiff as the parties are bound by their pleadings.The might and strength of pleadings are beyond imagination.This case was an excellent example where the pleadings were drafted with some measure of skill.It was shaped in the light of experience and familiarity with the law.Cotton LJ lucidly remarked in Philipps v. P 4 QBD at p. 139:

In my opinion it is absolutely essential that the pleading, not to be embarrassing to the defendants, should state those facts which put the defendants on their guard, and tell them what they have to meet when the case comes on for trial.

[2] That remark still, holds water and was vigorously applied in this case.

[3] It is also pertinent to note that the defendants also alleged that there was encroachment by the plaintiff of which have more to say in the later part of this judgment.

[4] Mr. Tan Jin Wah, the learned counsel for the defendants, raised a potent point that would nip, so to speak, the plaintiff's claim in the bud it was an interesting argument and it went like this.He submitted that under s. 7 of the Civil Law Act 1956 (Act 67) (Revised 1972) only certain persons are entitled to claim loss of support in respect of a deceased person.Those persons were said to be confined to the wife, the husband, the parent and the child only. Sub-sections (1) and (2) of s. 7 to the Civil Law Act 1956 (Act 67) (Revised 1972) ('Civil Law Act') relevant to the particular exercise, are reproduced hereinunder.

(1) Whenever the death of a person is caused by wrongful act, neglect or default and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death has been caused under such circumstances as amount in law to an offence under the Penal Code.

(2) Every such person (referring to an action under s. 7 (1)) shall be for the benefit of the wife, husband, parent, and child, if any, of the person whose death has been so caused and shall be brought by and in the name of the executor of the person deceased.

[5] In Chan Chin Ming & Anor v. Lim Yok Eng [1994] 1 MLRA 305, [1994] 3 MLJ 233the then Supreme Court Federal Court) had occasion to ventilate its views in regard to the persons to whom s. 7 (2) of the Civil Law Act 1956 would relate to. In a majority, decision Peh Swee Chin SCJ (now FCJ), without mincing words, said:

However, under s. 7 of the Civil Law Act 1956, the persons entitled to claim such loss of support in respect of a deceased person are the wife, husband, parent and child only, not including a brother or a sister.The only person entitled to claim in the instant appeal would, therefore, be the surviving parent, ie the said mother, unlike in England, where the class of persons entitled to claim under corresponding legislation expressly includes a brother and a sister.

Therefore, it would assist nobody to say that the said mother was bound by law to support her