Suppose a court decides, on the evidence before it, that  a man – a victim of a road accident – will live until he is 65.  It grants him damages for nursing care.

He dies much earlier.

Should his family keep the money? Or return it?

When asked this question, the courts send out very confused messages.

Here is a true story

Raj was a strapping young man of 25. He lived in Port Klang in his parents’ 3-room government flat. His father was a retiree.

Raj was gainfully employed. He was a responsible fellow.  Over the years, Raj took care of the family.  He gave most of his money to his family.  What was left over, he saved for the marriage of his two unmarried sisters.  They pulled their weight too. They worked at a local factory.

Most evenings the victim played soccer. On Deepavali eve, on his way home from over-time work, he was mowed down by a car.

He became paraplegic and bed-ridden.  Only the muscles above his shoulders responded to his directions.  He was totally dependent on other people.  He could feel noting below the neck.

He was in a hospital for over a year. Medical costs went through the roof.

Like all loving families, the devastated family adjusted. One sister stopped work.  The hospital taught her how to care for Raj’s medical needs. The other sister supported the family.  Her earnings were meagre: about RM1,100.00 a month.  The father went to work as a security guard.

The family sued the driver.  The driver’s insurer stepped in – as always  –  to defend the claim. So the real defendant was not the negligent driver. It was his insurer.

At the trial, two medical specialists testified on Raj’s behalf. They had examined him.  In their professional opinion, they said he’d need nursing care until he was 65. They calculated it at RM2,500 a month. To that they added the cost of  two maids at RM1,500 per month. Then there was special medication.  Again, he had had to go for 8 or 9 operations to deal with various complications.  Further, he needed special support equipment.  These maintained the muscle tone of his immobile limbs.

The doctors predicted he would need RM4.00 million in all, for his lifetime – which they pegged at 65.

The defence specialists said Raj would be as dead as a doornail by the time he was 40.  They suggested he be awarded a smaller sum of RM200,00 to tide over his life.

When the judge asked if he needed to go to a private hospital, the defence lawyers scoffed.  They point to a general hospital nearby, where, he could, according to them: –

‘… get timely and perfectly reasonable medical treatment.  He doesn’t need the luxury of private medical care.  Why should the insurer pay for his luxurious life?’

That the general hospitals everywhere are bursting at their seams didn’t seem to matter.

That the particular hospital and its staff treat 100 times more patients than any decent hospital should, is not a matter of concern.

That the doctors and medical staff in each such hospital are over-worked, under-paid, and exhausted beyond imagination, is of little consequence.

That the insurer’s lawyers themselves wouldn’t have stepped within ten yards of that hospital, to treat their own children isn’t relevant.

‘He will die early, and so we have to pay less’ – that was their oft-repeated refrain.

At the end of trial, the sessions court judge awarded damages of RM1.5 million.

The insurer felt this  entitled Raj to the life of a king.  They appealed.

No one stopped to ask why Raj ended up the way he was.

The Appeal Period

A litigant who is unhappy with a decision of a court has, say – 30 days to appeal. Sometimes it can be as little as 14 days. After the appeal is lodged, it takes between 3 months to 2 years for the entire appeal process, through all levels,  to be completed.

We’ll call this the ‘Appeal Period’.

The Insurer’s appeal to the High Court failed.  Eventually the insurer — like all insurers – ended up before the Court of Appeal.

A couple of weeks before the final appeal, Raj died.  He was 30 at that time.  He died 40 years earlier than expected; about 10  years earlier than the best insurance doctor had predicted.

So now the insurer demanded all that ‘extra money from the ages of 31 to 65’, be paid back.

The insurer said to the judges:-

‘Look, we told you he’d succumb to his injuries at the age of 40. He has.  He should receive only RM100K as damages.  RM1.5 million is excessive. Please cut the damages by 80%.’

Under these circumstances, the judges in the Commonwealth have responded with some rather odd principles.

The Four Questions Appeal Judges Ask

How the judges in similar circumstances  have responded; both here and overseas can be summarised as follows.  The appeal judges ask themselves the Four Questions: –

[1].       ‘Did the victim’s premature death occur before or after the Appeal Period?’

[2].       ‘Did the victim’s premature death occurred after the Appeal Period? If so, we won’t short-change the victim, or his family.  We won’t interfere with the trial court.’

[3].       They then ask: ‘Did the victim’s premature death occurred during or before the Appeal Period was over?

[4].       If so, we want to ask – Was the acceleration of death self-inflicted?’

And then the judges unaccountably say:

‘If the victim’s premature death occurred during or before the Appeal Period was over, and the cause of the acceleration of death was self-inflicted, then we will reduce the quantum from (say) RM1.5 million to (say) RM180,000.00’.

Apply these principles. It is a fault-based rationale. See where it leads you:-

Suppose the Victim – during the Appeal Period– goes into some kind of substance abuse. It is all his fault.  Suppose that leads to an overdose.  And that leads to his death.

Then that will entitle the court to cut down his damages.

Imagine the alternative scenario

What if the Victim dies through no fault of his own?  Suppose, on the way to hospital, a car rams into the the taxi the Victim is in, killing him instantly: it is all the other driver’s fault.

Should his previous award be cut?  If it happened before or during  the Appeal Period, the Courts will cut the damages – drastically.

Yet, if exactly the same thing happened after the Appeal Period, the judges won’t interfere. The damages won’t be cut.  Even if the Victim dies as a result of his own errors.

What kind logic is that?

The Better Approach

The better approach should be, the judges should first ask themselves:-

‘Is the trial judge’s assessment of damages faulty?’

If the trial judge’s assessment of damages is faulty, of course the appellate judges should intervene. That is a given.

But where the trial judge makes no error, the appeal judges should do nothing.

Judges are not Time Machines

And here is the first crucial consideration: when testing if the trial judge’s  assessment process had been faulty, his reasoning must be studied in light of what he knew at the time of his assessment.  And  what evidence was before the trial judge at that moment.

If he had applied the law correctly, and if he analysed and assessed the evidence correctly, that should be the end of the matter.

All other considerations, particularly those that might occur after the trial, should not count at all.

The trial judge is not a Time Machine. He does not live in a Time Tunnel.  He cannot go back and forth between the Past and the Future. He cannot see what lies ahead of time.

The appeal judges are in no better position.

Once a trial judge makes a decision on the right basis appeal judges should not look beyond that.

To apply the Four Questions Test produces some really unjust results.

It sends out the wrong message.

This is the message appeal judges send out to all drunken and negligent drivers:-

‘If you hit a man, kill him on the spot.  Or injure him so badly, that he won’t survive before the final appeal.’

‘Because if you let him live, your insurer would end up paying more. And we can’t have that.’

So this judicial Red Line drawn about what happened before or after the Appeal Period is artificial.

It is illogical.

It makes no sense.

It is the wrong test.

And it leads to erroneous appellate interference.

This is not good.

You know why?

Time is capricious

The lottery of the Appeal Period can vary, as pointed out earlier.

The longer the appeal takes, the better it is for the insurer. If the appeal is heard much later, the chances are higher the Victim will die.

All the insurer has to do is to bide its time.

So the passage of time is not only capricious, it places the Victim in a disadvantageous position.

And that is not fair.

There must be finality in litigation

Second, there is a principle of law that says there should be finality in litigation.  Litigants should not be allowed to reopen a case based on what happens afterwards.

‘”Interest rei publicae ut sit finis litium’: [‘It is in the interest of the state that there be finality in litigation’].

Equality

Then there is a need that the law must treats both victims – those who die shortly before the appeal, and those who die after the appeal – the same way.  That is the principle of equality.

The Federal Constitution says that: –

‘All persons are equal before the law and entitled to equal protection of the law’: [Article 8(1)].

Once an award is made on proper grounds, it should never be reduced by premature death.

Will our courts change the law?