You met with a motor accident, and your medical expanses were covered by insurance. Are you entitled to claim from the wrongdoer as well? The answer would appear to be a resounding yes, but it is not so simple...
If you have met with an accident and are suing for damages with regards to personal injury from the wrongdoer, you would want the full sum of damages according to what you have suffered or incurred.
But can you still get the full sum of damages from the wrongdoer (through his insurer) if you are already covered by your own insurance and your insurer had already paid for the medical expenses or have paid you for the same? Can you have both, damages claim from the wrongdoer, and monies from your own in-surer?
The relevant law in this regard is section 28A (1) (a) of Civil Law Act 1956 (“the Act”) which provides that in assessing damages recoverable for non-fatal personal injury, no deduction should be made to any sum paid or payable in respect of such personal injury under any contract of assurance or insurance, regardless whether it was made before or after the coming into force of this Act.
This simply means that the court, in calculating damages to be awarded to you by the wrong-doer, must not deduct any sum paid that is payable by your insurer. Thus in answering the above question of whether you are entitled to get both, damages from the wrongdoer and, your insurer, the answer would appear to be a resounding “yes”.
But in my opinion, it is not so simple. I would argue that S28A applies when a Plaintiff has taken out a Personal Accident policy or a similar policy and has received payment from his/her insurance company. Then I would argue S28A applies and the sum received by the Plaintiff cannot be taken into account when determining quantum if he met with an accident.
However if the Plaintiff had taken out a Hospitalization policy, then I would argue that S28A would not apply. And if his insurers have paid under the Hospitalization policy, then the Plain-tiff would not be entitled to claim for the same medical expenses from the wrongdoer.
The case of Ward v Malaysian Airlines System Bhd [1991] 3 MLJ 317, seem to adopt this position. In this case, the court held that considering the nature of an insurance policy scheme, the insurance benefits were not deductible under section 28A (1) (a) of the Act. The words used in that section should be interpreted in its plain and ordinary meaning. By adopting a strict rule of interpretation, our Parliament in its wisdom had made it crystal clear that any sum paid or is payable in respect of a non-fatal personal injury under any contract of assurance or insurance shall not be taken into account in assessing damages.
The case of Sin Hock Soon Transport Sdn Bhd & Anor v Low King Ban [2006] 3 MLJ 174 echoed Ward’s case and held that where the employer was the party who paid for the premium under the contract of employment, damages awarded and received by the Plaintiff should not be deducted. However in the instant appeal, the respondent himself purchased the policy and paid for the premiums. By applying the principles as enunciated in Ward's case, the respondent was clearly entitled to the insurance monies paid under his own insurance coverage and also the special damages awarded by way of his claims against the appellants.
However prior to Sin Hock’s case [supra], the courts held in the case of Khairul Sham bin Ahmad & Anor v Yesudass a/l Michaelsamy [2005] 2 MLJ 679 that the Plaintiff cannot claim for medical expenses paid by the insurance company as the rights to recover the medical expenses lies in the hands of his insurer. The medical expenses of RM30,000 award-ed by the learned Sessions Court judge had simply enriched the Plaintiff. This enrichment violated the philosophy behind the principle of compensatory damages upheld in this country. Therefore such an award should not be allowed.
Until recently, the question as to whether one would be entitled to claim for damages from the wrongdoer in addition to receiving insurance monies from his own insurer pursuant to a hospitalization policy still remained unclear until the recent Court of Appeal decision in the case below was made.
The judge in Sathisvaran a/l Chandrasegaran v Agilan a/l Vanmugelan & Anor [2012] 4 MLJ 548 differentiated general damages and special damages, contending that in Ward’s case the Plaintiff was seeking an award of general damages for pain and suffering and thus section 28A (1) (a) applies; whilst in the present case, the Plaintiff was seeking special damages which should be the amount spent by the Plaintiff himself and hence the section does not apply. Furthermore, if the claim was allowed, it would enrich the Plaintiff out of his misfortune, and this would be contrary to the universal rule that one is not allowed to recover something which he has not lost. Therefore the medical bill paid by the Plaintiff’s insurer in this case was deducted from the damages awarded.
Even though section 28A (1) (a) does not state whether the word “damages” is one under the head of general or special damages, this case made it clear that medical expenses or any expenses that have been paid by the Plaintiff’s own insurance are deductible in calculating the damages.
Hence you are unlikely to be able to claim or the expenses that have been paid or are payable by your insurance.
As for general damages or damages for pain and suffering, Ward’s case stands. You may get a full sum of damages even if your own insurer has paid you.
