JUDGMENT

Mohd. Hishamudin Mohd. Yunus J:

This action for damages by the plaintiffs arose from a tragic road accident that occurred on 14 December 1978. Five persons died in the accident that occurred at the 41st milestone along the Sungai Petani-Butterworth road. The accident involved a lorry, a motorcycle and three cars.

The first plaintiffs are claiming as administrators of the estate of Lu Yoon Poh, deceased (hereinafter referred to as "the first deceased") while the second plaintiffs are claiming as administrators of the estate of Ooi Siew Poh, deceased (hereinafter referred to as the "second deceased").

The first defendant was the driver of the lorry involved in the accident and the second defendant was his employer at the material time. The third defendant is the administrator of the estate of the motorcyclist who was killed in the accident.

As the accident occurred in 1978, that is to say, before the coming into force of the Civil Law (Amendment) Act 1984 (Act A602) on 1 October 1984, therefore, the plaintiffs are claiming under the old law, that is to say, the Civil Law Act 1956 (Rev. 1972) (Act 67) ('the Act') as it stood before 1 October 1984. They are claiming, first, under s. 8 of the Act . In essence, this section provides that if a tort is committed against a person and he dies, an action can be instituted against the tortfeasor by the deceased's personal representatives acting on behalf of his estate. The damages recovered will go to the estate and from there they will be distributed as part of the inheritance of the beneficiaries. Section 8 reads:

Effect of death on certain causes of action.

8(1) Subject to this section, on death of any person all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate:

Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain apart from the other or to any claim for damages on the ground of adultery.

(2) Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person:

(a) shall not include any exemplary damages;

(b) in the case of a breach of promise to marry shall be limited to such damage, if any, to the estate of that person as flows from the breach of promise to marry, and

(c) where the death of that person has been caused by the act or omission which gives rise to the cause of action, shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included.

(3) No proceedings shall be maintainable in respect of a cause of action in tort which by virtue of this section has survived against the estate of a deceased person, unless proceedings against him in respect of that cause of action either:

(a) were pending at the date of his death; or

(b) are taken not later than six months after his personal representative took out representation.

(4) Where damages has been suffered by reason of any act or omission in respect of which a cause of action would have subsisted against any person if that person had not died before or at the same time as the damage was suffered, there shall be deemed, for the purposes of this section, to have been subsisting against him before his death such cause of action in respect of that act or omission as would have subsisted if he had died after the damage was suffered.

(5) The rights conferred by this section for the benefit of the estate of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of deceased persons by s. 7 and so much of this section as relates to causes of action against the estates of deceased

persons shall apply in relation to causes of action under the said section as it applies in relation to other cause of action not expressly excepted from the operati