Gopal Sri Ram JCA:

This case raises an issue of some importance. It has to do with the admission of a head of damages for personal injuries that constantly comes before the subordinate courts. It all turns on the construction of the third proviso to s. 7(3) of the Civil Law Act 1956("the Act"). The factual matrix against which the question at issue has arisen is not in dispute.

On 16 October 1989 the deceased died as a result of a motor accident. She was 40 years old at the date of the accident. She left behind her husband, the plaintiff, and her two children aged 10 and 13. The deceased worked in a factory and earned RM600 per month. She also provided valuable services at home. She cooked, washed clothes and kept house.

The husband brought an action against the defendant for negligently causing the deceased's death. Evidence was led at the trial to prove that a housekeeper had been engaged for a period of two years at a sum of RM280 per month. The husband however claimed RM400 per month as the cost of engaging a housekeeper to look after the children on the ground that the cost of living had increased. He alleged that this was the sum demanded by maids at the material time and that he was not in a financial position to pay this sum. The Sessions Court however refused to make an award for the loss of the wife's services. Additionally, the Sessions Court awarded only RM240 per month as the loss of dependency despite it having been proved that the deceased gave her husband RM450 per month and that her only real expense was a sum of RM90 per month that she paid by way of instalments for a motor cycle. Both these awards were upheld by the learned intermediate appellate judge.

Before us, the findings on both awards were attacked. Two issues were raised. The first was whether the plaintiff could recover for the loss of the deceased's services. The second has to do with the quantum of damages that are to be awarded under both heads of claim if the first issue is resolved in the plaintiff's favour.

Let me take the first issue. Now at common law, a husband could recover damages, inter alia, for the loss of the services provided by his wife. But an amendment to s. 7 of the Actchanged all that. This is what the material portion of the section says:

The damages which the party who shall be liable under sub-section (1) to pay to the party for whom and for whose benefit the action is brought shall, subject to this section, be such as will compensate the party for whom and for whose benefit the action is brought for any loss of support suffered together with any reasonable expenses incurred as a result of the wrongful act, neglect or default of the party liable under sub-section (1):

Provided that:

(iii) no damages shall be awarded to a parent on the ground only of his having been deprived of the services of a child; and no damages shall be awarded to a husband on the ground only of his having been deprived of the services or society of his wife;

The section and its third proviso were considered by this court in Neo Kim Soon v. Subramaniam[1996] 1 CLJ 730in almost similar circumstances. That was a case in which the wife was killed in an accident. After her death her husband engaged a servant to look after the child of the marriage. When she was alive the wife had looked after the child. The Sessions Court allowed the husband's claim for the servant's wages. The High Court reversed. On further appeal, this court restored the judgment of the Sessions Court. Mahadev Shankar J who delivered the judgment of this court said:

We agree with Mr Chok Chin You of counsel for the plaintiff/appellant that what has been done away with by the proviso (iii) is an award of damages, in this case to the deceased's husband, only on the ground that he has been deprived of the services or society of his wife. So far as a surviving husband is concerned, the proviso has abolished any award by way of general damages for loss of consortium. In other words, p