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What I think I can get and What I Actually Get

September 25, 2014

When you read in the news all over the world of how the victims of civil law suits are compensated, you may just conclude that when you suffer an injustice, you expect nothing less than a handsome sum of money. And who could blame you when in Florida, a widow got a whipping USD$23 billion from a giant tobacco company because her husband died of lung cancer smoking their cigarettes. Oh and this is not the only one.

 

And there is generally a perception that once you are a victim in a situation and there is person who caused that harm is someone who can afford easily to pay, that you could get a handsome sum of money. It’s like an automatic equation.

 

However, the compensation a victim gets in court more always depends on what is actually proven to be suffered.

 

When it comes to personal injury, there is in fact a whole table of injuries where the range of compensation to be awarded is stated. This is a table painstakingly compiled by the Malaysian Bar in view of the cases previously decided. You can see from this table that most every single injury is provided for. For example at page 8, you can see that the range of awards of the amputation of 3-4 fingers would be RM22,000.00 to RM33,000.00.

 

You may think that all our physical pain and annoying inconvenience as a result of the injuries has now heartlessly been reduced to just a range of numbers, when the experience is something that cannot be quantified. But unfortunately when deciding on an appropriate compensation, there is a need for the courts to be consistent.

 

It certainly would not be fair if two different individuals with similar injuries, get a vastly different sum of money.

 

And the reason behind the need of consistency is that when one decides to claim, he/she should know the rough estimate of the compensation which would be awarded, so that we will know whether the time, effort and money [lawyer’s fees] taken to claim this sum of money would be worth it.

 

Nonetheless, I must tell you that this table would not be the be all and end all, but it certainly serves as a helpful guide to lawyers and judges when deciding on compensation.

 

Furthermore, the principle behind awarding damages is that the alleged damage suffered must be foreseeable.

 

So if say Mr. Kareless met an accident caused by Mr. Rackless and that the accident was reported on the news, Mr. Kareless’s mother, Madam Imo watches TV and suffers a heart attack as a result. Now, can the Madam Imo also claim for compensation from the person who caused the accident?

 

Now, imagine if you were in Mr. Rackless’ shoes, could you have foresaw that Mr. Kareless had a mother with a weak heart? Could you have foresaw that the accident [which you never intended to cause] would be reported on TV?

 

And if there is reliable evidence to show that – Yes, it was foreseeable, then maybe the Courts may award the said sum.

 

However, could Mr. Rackless argue that the reason she may have suffered the heart attack coincidently? How can Madam Imo show that she was watching the news at the time? What if she was alone? Would that now be your word against hers? And if there is no other cogent evidence to prove otherwise, then how is a Judge going to decide who is telling the truth?

 

So when cases are being reported in the news, there are actually many more aspects as to why that said sum has been awarded.

 

When it comes to contractual disputes and I am going to use a property transaction dispute. Ms. Cilly agreed to sell a property to Mr. Kow. So, Mr Kow paid 2% of the purchase price and also when signing the Sale and Purchase Agreement, pays the balance 8%. Now before the transaction could be completed, Ms. Cilly found another buyer who offered a higher price and decides to renege on her promise to sell to Mr. Kow. Now, what can Mr. Kow claim for?

 

The compensation in contractual disputes are usually more certain than personal injuries claims. And when Mr. Kow asks “How much can I claim from Ms. Cilly?” Well, any lawyer will tell you – “What does the Sale and Purchase Agreement say?”

 

 

So in contractual disputes, the amount you can claim for is generally based on the agreement.

 

And when it comes to loss of profits from a contractual breach, again we have to go back to whether it was a foreseeable loss and also whether it can be proven.

 

In a nutshell, what you think you can get and what you actually get can sometimes be very different. And to emphasize this, every time someone who comes to me asking me how much compensation can the family get when an individual who had passed away and did not have any gainful income when she/he was alive, they always are shocked at my answer. Because when an unemployed person dies [without suffering prior to death] is merely bereavement [which is RM10,000.00] and proven and necessary funeral expenses.

 

 

 

 

 

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