The Law on Personal Injury in Road Traffic Accidents.

Road accidents has been making the headlines more often than it used to be. Countless road users had been gravely affected by this accidents. While the government has proposed several new amendments in the Road Traffic Act 1987, the civil redress of the victim remains within the purview of the Courts.

 

In this article I would like to explain the law on Personal Injury. Take note that I would not be discussing the law on death resulting from road traffic accidents.

 

In Malaysia, the law on personal injury resulting from road traffic accidents is governed by the Civil Law Act 1956 and mountains of Case Laws.

 

The Law provides for 4 types of damages that can be claimed by a victim of a road traffic accident, namely :

 

1) Pain and suffering and loss of amenities;

 

2) Loss of future earnings;

 

3) Loss of earning capacity; and

 

4) Future care expenses.

 

The Court opines that for most road accident cases, the root cause is said to be negligence.

 

Now what is Negligence ?

 

The Merriam-Webster dictionary defines negligence as “ the failure to exercise the care that a reasonably prudent person would exercise in like circumstances”

 

The essential ingredients that must be satisfied in a negligence claim is as follows :-

 

1) A duty of care exist wherein there must be a wrongful act or ommision by the Tortfeasor;

 

2) There is a breach of that Duty of Care; and

 

3) The said breach of the duty of care has caused the victim to suffer loss and damages.

 

 

Moving on further, for a person or a victim suffering personal injuries as a result of a road traffic accident, the common remedy or redress is an award for damages as I have explained above. What is the principle used by the Courts in awarding damages? . The Courts uses the principle of “restitutio in integrum which simply means to restore the victim to the position he or she would have been if the relevant accident had not taken place.

 

Take note that the Court does not award excessive award for the plain reason that it is not the intention of the Court to unjustly enrich the victim. The goal here is to fully compensate the victim for his or her loss as far as is possible by monetary compensation.

 

In Conclusion damages in road traffic accidents are allowed not only for past and present losses, but also for future losses. In all road traffic accident cases, all are to be paid after establishing the fault and liability of the liable party ie: tortfeasor through the insurance company as the insurer of the liable party.

 

 

Thank you for reading, hope this sharing helps,

 

Joel Ruben John

Advocate and Solicitor

Of The High Court of Malaya.

THE LAW ON HABEAS CORPUS

Hello Readers, allow me to share a brief explanation of the above topic on this lazy Sunday afternoon. While you are waiting to savour the delicious chicken curry simmering in your kitchen, you can read up on my sharing. Thank You

The term habeas corpus refers most commonly to a specific writ known in full as ‘habeas corpus ad subjiciendum’, a prerogative writ ordering that a prisoner to be brought to the court so that it can be determined whether or not the prisoner is being imprisoned lawfully. Put simply, a writ of habeas corpus is a challenge to the legality of a prisoner’s detention. The words ‘habeas corpus’ is a Latin law term. Its literal English translation is: ‘you have the body’.

Put simply, a writ of habeas corpus is a challenge to the legality of a prisoner’s detention. The words ‘habeas corpus’ is a Latin law term. Its literal English translation is: ‘you have the body’.

 

The writ of habeas corpus functions as a judicial remedy aimed at preventing the arbitrary use of executive power to imprison individuals unlawfully. The use of habeas corpus has roots in English common law dating back to the fourteenth century. It was first expressed in the Magna Carta of 1215, which stated, ‘No free man shall be seized, or imprisoned, or disseized, or outlawed, or exiled, or injured in any way, nor we will enter on him or send against him except by the lawful judgment of his peers, or by the law of the land’.

 

In Malaysia, the Federal Constitution makes no explicit provisions for the writ of habeas corpus. The legal basis for the writ of habeas corpus in Malaysia is art 5(2) of the Constitution and ss 23, 28, and 365 of the Criminal Procedure Code.

 

The writ of habeas corpus is a powerful remedy in the sense that it is not discretionary. It is distinct from the prerogative writs such as those of certiorari, prohibition, and mandamus. The writ of habeas corpus must be issued if the court finds that the detenu is illegally or improperly detained.

 

Where a detainee challenges his detention as being illegal, the burden lies on the detaining authority to show that the detention is legal. In SK Tangakaliswaran a/l Krishnan v Menteri Dalam Negeri, Malaysia & Ors [2010] 1 MLJ 149 Gopal Sri Ram FCJ held as follows:

 

In my considered judgment the point at stake falls to be resolved with reference to the principles governing the burden of proof in an application for habeas corpus. It is settled law that on an application for habeas corpus the burden of satisfying the court that the detention is lawful lies throughout on the detaining authority. 

 

Thus the Writ of Habeas Corpus serves as a safeguard tool against the draconian application of the Law against the rights of an individual which are enshrined in the Federal Constitution.  

Sir William Blackstone SL KC was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the Commentaries on the Laws of England.

1723-1780