Gopal Sri Ram JCA:

There are two appeals before us. They are Civil Appeal No. W-02-248-94 ('the first appeal') and W-02-249-94 ('the second appeal'). Both arise from a decision of the High Court in a personal injury action. Because of the logical sequence of the arguments relevant to the issues before us, we will deal with the appeals in reverse order.

The second appeal is brought by Adnan Hj. Mat Jidin and Normala Ismail who were plaintiffs in the Court below. Irwan Wee Abdullah and Foong Siew Leng who were the defendants in the Court below are respondents in the second appeal. In the first appeal the roles are reversed, the appeal being that of the defendants. For convenience, we will refer to the parties as plaintiffs and defendants and in the order in which they appear in the title to the action.

The facts relevant to both appeals are fairly straightforward and may be shortly stated. On 11 October 1989, the second plaintiff was riding pillion on a motorcycle of which the first plaintiff was the rider. There was a collision between their motor-cycle and a motor car owned by the second defendant and driven by the first defendant who was, at the material time, the husband of the second plaintiff. The plaintiffs brought an action claiming that the accident had been caused by the negligence of the first defendant. They also sought to make the second defendant vicariously liable for the first defendant's negligence.

The defendants, in answer to the second plaintiff's action pleaded s. 9(2) of the Married Women Act 1957 which, prior to its amendment in 1994, read as follows:

(2) Except for the protection or security of his or her property no husband or wife shall be entitled to sue the other for a tort.

The learned Judge who tried the action held the subsection to be an absolute bar to the second plaintiff's claim against her husband, the first defendant. He dismissed her claim for that reason. This forms the subject matter of the second appeal.

Before us, Encik Sidhu of Counsel for the plaintiffs sought to argue around s. 9(2) . But the language of the section is so plain that it makes the point quite unarguable.

That the language of the subsection ought to receive an interpretation which is plain on its face is made clear by the decision of the Supreme Court in Mohamed Habibullah v. Faridah Dato Talib [1993] 1 CLJ 264, where Harun Hashim SCJ said (at p. 272):

The cause of action in the present case is clearly a tort.

If the allegations of assault and battery can be proved, this may be the subject of criminal proceedings against the defendant but this fact stands independently from an action in tort. As the plaintiff and defendant are husband and wife and the allegations of assault and battery constituting the tort are not related to the protection or security of property, the plaintiff is barred by s. 9(2) of the Married Women Ordinance from suing the defendant.Section 9(2) therefore applies and the High Court is in error in deciding that it did not. (Emphasis added.)

It is beyond argument that the second plaintiff's claim in her action was based on the tort of negligence. In our judgment, the learned Judge was therefore entirely right in dismissing her claim against her husband as well as against the second defendant.

We now turn to deal with the claim of the first plaintiff which forms the subject matter of the first appeal. The learned Judge held both the first plaintiff and the first defendant equally to blame for the collision. He also held the second defendant to be vicariously answerable for the first defendant's negligence. He made an award of damages which included compensation for loss of future earnings. The second defendant complains that the formula applied by the learned Judge is not in accordance with the relevant provisions of the Civil Law Act 1956 and asks that the figure be reduced.

Encik Khoo Eng Chin of Counsel for the defendants attacked the finding of the learned Judge against the sec