Gunn Chit Tuan SCJ:

In this appeal the claim of one Dirkje Pieternella Halma, a Dutch national (the appellant) for loss of future earnings was on 6 July 1989, dismissed by the High Court at Ipoh on the ground that it was not proved that she was earning at the time she met with an accident in Malaysia on 24 October 1984. When the appeal was argued before us on 21 March 1990, the appellant filed a notice of motion for an order that she be allowed to amend her memorandum of appeal to include the following additional ground:

The learned Judge erred in not allowing in the alternative a claim for loss of earning capacity.

We exercised our discretion to allow the new ground of appeal to be argued before us not only because a claim for "loss of future earning capacity" had been pleaded in the appellant's statement of claim but also because of the exceptional circumstances of this case.

The appellant was a qualified registered nurse looking after mentally retarded patients in Holland. She commenced her employment as such a nurse with effect from 1 October 1980, after having started studying to be a nurse from 1 August 1977. She continued working as such qualified nurse until 1 November 1983. She was in good health and was then 25 years old when she decided some time towards the fall of 1983 to see the world on a bicycle with her friend and colleague who was the second plaintiff in the Court below. The appellant took no pay leave for a period of two and a half years to enable her to go on her world tour. After completion of her world tour she was to continue her employment at the same hospital on the same salary.

The appellant commenced her overland tour through Europe towards Asia and cycled down into Malaysia through Thailand. She arrived in Malaysia on 21 October 1984, that is, a few days after the Civil Law (Amendment) Act 1984 (Act A602) came into force on 1 October 1984.

On 24 October 1984, at about 3.00 p.m. the appellant and her friend were cycling towards Ipoh near the 63rd milestone of the Ipoh/Butterworth road. She was travelling behind her friend in a single file when a bus belonging to the second respondent and driven by the first respondent knocked into the appellant and her friend. The appellant sustained very serious injuries including "spinal fracture with paralysis of the lower limbs, bladder and bowel functions". The above facts were not disputed and liability was admitted by the respondents. By consent a sum of RM80,000 as general damages for pain and suffering and loss of amenities was awarded to the appellant. The respondents also agreed to a sum of RM55,880 being awarded to the appellant as agreed loss of earnings from the date of accident until the date of trial. During the hearing before us Mr. Gurbachan Singh, leading Counsel for the appellant, agreed with us that since the amendment of the Civil Law Act 1984, on 1 October 1984, there is no distinction between pre-trial and post-trial loss of earnings. He agreed that as from that date loss of future earnings should be awarded in relation to the time when the plaintiff was injured, that is, the date of accident or injury and a proper award for loss of future earnings made under s. 28A(2)(c) of the Civil Law Act 1956. In this case as the appellant was below the age of 30 years at the time when she was injured s. 28A(2)(d)(i) of the said Act therefore applies. But the issue before us and the High Court was whether on the undisputed facts of this case the appellant was entitled to prosecute a claim for loss of future earnings under s. 28A(2)(c) of the Civil Law Act 1956.

We considered that s. 28A(2)(c) of the Act should be construed as a whole and reproduce it hereunder:

28A(2) In assessing damages under this section:

(a) ...

(b) ...

(c) in awarding damages for loss of future earnings the Court shall take into account:

(i) that in the case of a plaintiff who has attained the age of fifty five years or above at the time when he was injured, no damages for