One of the more frequently asked questions are “what do I do if I meet with an accident” or “how much or what do I get if I were to meet with an accident”.
We all can relate to these questions because more often than not we do know of someone who has met with an accident and after the shock and grief dies down, the thing that is foremost on most people’s minds are “can I/he/she get any form of compensation’ from the person that knocked into them.
It is acknowledged that accident or “running down” cases as we lawyers like to call them form the bulk of the cases filed in courts. Therefore I felt it would be good to just write down a few steps and state what can be claimed in the event a person meets with an accident.
For the purposes of this article let’s assume that the person who met with an accident is Alice. And since the question I am attempting to address relates to claiming compensation, then I shall assume that Billy knocked into Alice.
So now Billy has knocked into Alice in a motor vehicle accident. What should Alice do?
1. The first thing Alice should do is to identify the vehicle that knocked into her. Of course this is
easier said than done because this can only be done if Alice remains conscious after the accident.
The point I am trying to make is as far as possible Alice should try to obtain the registration No.
of the vehicle that knocked into her.
2. After the accident Alice should then make a police report of the incident.
3. Once the police report is made, Alice should then notify her insurance company that she has met
with an accident. Alice will need to forward a copy of the police report lodged.
4. Alice can then find out the insurer’s of Billy’s vehicle. This is important because if Alice decides to
make a claim for compensation, then the insurers of Billy’s vehicle will defend the claim and pay
out the compensation [if any and if proven].
5. In Malaysia a lawyer will undertake to do the necessary steps from item 4 onwards.
6. If Alice was injured in the accident then she can do items 2 and 3 above after she gets treatment
from the hospital. There is no prejudice to A if he lodges the claim or report after he has been
discharged from hospital.
I have stated in brief what Alice should do in the event she meets with an accident. Let me now explain in brief what Alice can claim as a result of the accident. I will first write on the basis that Alice was injured in the accident. Later on I will address the issue of what happens if Alice passes away as a result of the accident.
If Alice is Injured in the Accident
So what can Alice claim if she is injured in an accident? The first thing that must be determined before even addressing the issue of what Alice can claim is who was at fault in the accident. If Alice was entirely at fault then she will not get any compensation whatsoever. In fact in all likelihood, Alice’s insurer will pay Billy compensation for the injuries/losses/damage suffered by Alice. There can be situations where both parties may be at fault for the accident and in such cases, the compensation paid out will be based on the extent to which Alice is liable for the accident.
So for instance let us say Alice is entitled to RM100,000.00 as damages for the accident. And if Alice is 50% liable for the accident, then A will only get RM50,000.00 and not the full RM100,000.00.
I shall now go on to talk about what Alice can claim on the basis that she is completely innocent in the accident.
Compensation for Injuries Suffered
Alice would firstly be entitled to claim compensation for the injuries that she may have suffered. Amongst lawyers this is called “General Damages For Pain And Suffering”.
Now what can be claimed is compensation for the pain that Alice may have suffered. How do we compute how much pain one may have suffered?
Well in Malaysia, the courts will decide the compensation payable for a person like Alice depending on what injuries she may have suffered and what are her permanent disabilities arising from that injury. Lawyers and Judges will then refer to previous cases where the courts may have decided a compensation for similar injuries that Alice may have suffered. What Alice can claim will depend on basically:-
a. the type of injury she has suffered;
b. the kind of treatment that she underwent;
c. the extent that her injuries or disabilities are permanent;
The above would be the claim for General Damages for Pain and Suffering.
Compensation for Loss of Income
If Alice’s injuries are to such an extent that she cannot go back to work either for a specific period of time or permanently, then the law will allow her to claim for that loss of income. To claim this loss of income Alice will need to show what was her income. Then the court will determine how much of that did Alice spend from her earned income. This is called living expenses. After deducting the living expenses from the gross income, Alice will then be able to claim for loss of net income for the period that she could not work. If for instance she could not go back to work for one year then Alice will be entitled to claim loss of income for that one year period.
If however she cannot go back to work forever, then the law has devised a formula to determine the length of period she would be entitled to claim the loss of income. For example if Alice was 30 years and below then her claim for compensation would be for a period of 16 years. As such her claim would be
Net Income x 12 months x 16 years
If however Alice was 31 years and above, then the claim for loss of income would be
Net Income x 12 months x [ 55 – (A’s age at time of accident)]
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Medical Expenses
Alice would also be able to claim for all medical expenses that she incurred as a result of the accident. However for this to be successful, Alice will need to show proof of the expenses incurred.
If however Alice obtained medical treatment in a private hospital, then the law states that she will generally be entitled to 1/3 of the total medical expenses unless it was reasonable to obtain the treatment from a private hospital.
An example of a case I handled personally where the courts held that the treatment received from a private hospital was deemed reasonable, was in a circumstance where the victim met with an accident very close by to the private hospital and the victim was brought there right after the accident. What constitutes “it was reasonable to obtain treatment at a private hospital” is subjective and is usually decided on a case to case basis. However the general principle remains that Alice will get 1/3 of her expenses if she sought treatment at a private hospital after the accident.
Other Expenses
Alice will also be able to claim the following expenses incurred provided she has documents to prove the expenses:-
a. Claim for transport expenses incurred by Alice’s family to visit her at the hospital for
the duration of Alice’s admission for treatment;
b. Claim for Alice’s transport expenses to and fro the hospital for any follow up treatment;
c. Cost of any future medical expenses that Alice may incur as a result of the accident;
The above is a general position of what A can claim in the event A was injured in an accident and where he/she was totally not liable for the accident.
I shall now go on to advise what Alice’s next of kin may claim in the event Alice passes away as a result of the accident.
In the Event of Alice's Death?
In the event Alice dies in the accident, then her dependents can sue the wrongdoer for compensation for loss of support that Alice had been giving the dependents when she was alive.
Dependents have been defined in the Civil Law Act as Alice’s spouse and/or children and/or parents. Now what can they claim?
LOSS OF SUPPORT
The first and most important claim is for loss of support. Support in this claim means financial support. So what the dependents can claim is loss of financial support provided by Alice prior to her death. In this regard the dependents will have to prove how much money Alice gave to them prior to her death which was used to support their lifestyle. However if the money given by Alice was saved by the dependent, then the amount saved would not be considered as loss of support by the courts when determining this particular claim.
So for example if Alice was giving RM700.00 a month to her dependents, and all RM700.00 was utilized by the dependents for their day to day life prior to Alice’s death, then the dependents will be able to claim for that RM700.00 per month.
The calculation of how much the dependents can claim is similar to the formula used when calculating loss of income. Therefore if Alice was 30 years or below then he total claim would be
RM700.00 x 12 month x 16 years.
However if Alice was 31 years or more at the time of death then the formula would be
RM700.00 x 12 months x [ 55 – (A’s age at death)]
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The next claim that a dependent may be able to claim is Bereavement.
Bereavement
Only in certain circumstances can a dependent claim for bereavement. The circumstances are:-
a. If Alice is married, then only her spouse or children can claim for bereavement;
b. If Alice was not married, then her parents can claim provided she was a minor at the time of
death.
And by the provisions of the Civil Law Act, the court will award a sum of RM10,000.00 for a claim of bereavement.
The dependents can also claim for funeral expenses.
Funeral Expenses
The Dependents would be able to claim for funeral expenses which have been reasonably incurred. The courts will generally expect the dependents to produce the receipts for the expenses incurred.
I hope that with this brief and cursory look at what you should do when meeting with an accident and how much you or your family as a result of that accident, you are now better informed in dealing with the unpleasant scenario of an accident.
Take care and drive safe.
