JUDGMENTBY: SUFFIAN LP, LEE HUN HOE CJ (BORNEO)

SUFFIAN LP (read by Abdul Hamid F.J.): Mr Chua Kim Long ("the deceased") died in a wild boar hunting accident in Telaga Papan, Trengganu, and his widow and another as representatives of his estate sued for damages on behalf of the deceaseds dependants under section 7 and on behalf of his estate under section 8 of the Civil Law Ordinance, 1956 ("the Ordinance").

Liability to the extent of 70% was admitted and so the only question for the learned trial Judge was damages. In the event, he awarded $ 2,800 for loss of expectation of life,$ 959 special damages, and costs of $ 1,000; all amounts agreed. He made no award for loss of dependency.

It is against this last that the plaintiffs have appealed to us.

Sections 7 and 8 of the Ordinance provide:

"7. (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 action 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.

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 ... (not relevant).

(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) ...

(b) ...

(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.

(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 section 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 causes of action not expressly

excepted from the operation of subsection (1)."

These provisions are in pari materia with the English Fatal Accidents Act 1976 and the English Law Reform (Miscellaneous Provisions) Act, 1934 ("the 1934 Act").

The provision that is specifically relevant is subsection 8(2) (c) of our Ordinance. The corresponding English provision i.e. section 1(2) (c) of the 1934 Act fell to be considered by the House of Lords in Gammell v Wilson [1982] AC 27.

That provision and subsection (1) of the section read:

"(1) Subject to the provisions of this section, on the death of any

person ... all causes of action ... vested in him shall survive

... for the benefit of his estate ...

(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) ...

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