Mohd. Dzaiddin J:

On 14 May 1973 Chuan Im Tit @ Chuan Joo Ting deceased, was travelling as a passenger in motorcar No. PM 815 from Bukit Mertajam towards Butterworth when at about 10.30 p.m. at or near 3½ milestone Jalan Baru, Prai, his motorcar was involved in a collision with motor-lorry No. KB 1875 travelling in the opposite direction. The lorry was driven by the 1st defendant as a servant or agent of the 2nd defendant. As a result of the said collision, the deceased sustained severe injuries which resulted in his death.

At the time of death, the deceased was 37 years of age and was survived by his widow, Ong Yoke Eng, and six children, the eldest being 15½ years old and the youngest 9½ years old. However, at the date of the trial all the children have reached the age of 21 years and except for two children the rest have married and are working elsewhere.

Unfortunately, this case had a rough passage before it finally came up for hearing on 18 December 1985. However, the defendants had admitted full liability and special damages were agreed at RM2,000. The only issue is on general damages where the widow is claiming against the defendants (1) damages for loss of dependency under s. 7 of the Civil Law Act 1956 and (2) damages for the benefit of the husband's estate (the "lost years") under s. 8(2)(c) of the same Act.

Loss of Dependency

The method of calculating dependency claim on death should pose no problem (see: Cookson v. Knowles [1978] 2 All ER 604), but such a loss must be calculated from date of death and the estimate of the net loss of contribution by the deceased to the family is simply a question of fact based on the evidence before this Court. In the present case, I shall proceed to consider and evaluate the plaintiff's evidence and make a finding of fact.

It is not disputed that the deceased was 37 years old at the time of the accident and was survived by a widow aged 34 years old and 6 children, the eldest being 15½ years old and the youngest 9½ years old. On the day of the trial, the widow was 45 years of age and the 6 children had all reached or passed the age of majority. According to the widow, PW1, the deceased during his life time carried on business as a coffee shop proprietor at No. 76 Love Lane, Penang. He used to give her RM300 per month for the family expenses. She used RM150 for marketing, and the balance was utilised as pocket money for her children. The deceased also gave her RM160 a year during festive season. She assisted him in the running of the coffee shop on part-time basis. Upon his death, she took over the business and for a while she engaged as assistant, PW2 and paid him RM5 per day including food for 6 days in a week. Ong Phong Tong Huat, PW2 testified for the plaintiffs and confirmed that he worked with PW1 from October 1976 until May 1980 and was paid RM5 a day inclusive food.

Under cross-examination, PW1 stated that the deceased operated the coffee shop since 1969. She agreed that she helped her husband full-time. Her eldest daughter also assisted the deceased. After his death, she took over the business and registered the shop in her name. It continued to be a family business where she derived the income from the shop. Two of her sons and a daughter assisted her in the running of the coffee shop. Since 1973, the income from the coffee shop had increased.

She stated that at present her daily profit was between RM20 and RM30.

Having heard the evidence of PW1, it is my finding that during the life time of the husband, she worked full-time helping the husband in the coffee shop. The business has been a family concern where according to her upon the husband's death she registered or paid the licence in her name and some of his children continued to assist her in the shop. Since 1973 the income from the shop had increased and the net profit in 1985 was between RM20 to RM30 per day. It is clear that the income has continued to increase despite the husband's death. How can it be sai