DALAM MAHKAMAH RAYUAN MALAYSIA (BIDANGKUASA RAYUAN) RAYUAN SIVIL NO. P-04-188-08
JENNIFER ANNE HARPER (BERDAKWA UNTUK SENDIRINYA DAN SEBAGAI WALI ESTET BERNARD
ALFRED HARPER, SIMATI) … PERAYU
(Dalam perkara Mahkamah Tinggi Malaya Di Pulau Pinang Rayuan Sivil No. 12-201-2005 [MT-4]
Jennifer Anne Harper (berdakwa untuk sendirinya dan sebagai wali Estet Bernard
Alfred Harper, simati) … Perayu
(Dalam perkara Mahkamah Sesyen Di Georgetown Dalam Negeri Pulau Pinang, Malaysia Saman No. 53-148-2001
Jennifer Anne Harper (berdakwa untuk sendirinya dan sebagai wali Estet Bernard
Alfred Harper, simati) … Plaintif
LOW HOP BING, JCA
SYED AHMAD HELMY BIN SYED AHMAD, JCA HAJI MOHAMED APANDI BIN ALI, JCA
LOW HOP BING, JCA
(DELIVERING THE JUDGMENT OF THE COURT)
 We set out below the grounds of our judgment in dismissing the appeal by the appellant (the plaintiff) against the decision of the
learned High Court Judge who had dismissed the plaintiff’s claim for loss of support under s.7 of the Civil Law Act 1956.
II. FACTUAL BACKGROUND
 The plaintiff is the lawful widow of Mr Bernard Alfred Harper (deceased) who had succumbed to injuries sustained in a road accident on 19 February 1998. At the time of his demise, the deceased was 68 years of age.
 The plaintiff instituted a personal injury action against the respondent (“the defendant”). At the conclusion of the trial, the Sessions Court found the defendant liable and awarded general damages for pain and suffering, damages for nervous shock and agreed special damages. However, the Sessions Court dismissed the plaintiff’s claim for loss of support.
 As indicated above, the plaintiff’s appeal against the decision of the Sessions Court relating to loss of support was dismissed by the High Court.
 Hence, this appeal by the plaintiff.
III. S.7(3)(iv)(a) OF THE CIVIL LAW ACT 1956
 Mr J J Chan (assisted by Ms Farleela Azli) submitted that the plaintiff’s claim for loss of support should be allowed as the plaintiff was claiming damages for loss of support based on her deceased husband’s sources of income from various annuities and pension
payments which in turn were the sources of financial support enjoyed by the plaintiff during the lifetime of her deceased husband. Support was sought in Lee In Fong & Satu Lagi Iwn Zahara Johan  1 CLJ (Rep) 479 HC.
 Mr T Tharumarajah (Mr Anantharajah Jhanangata) supported the decision of the High Court in dismissing the plaintiff’s claim for loss of support, on the following grounds:
(1) that as the deceased was 68 years of age at the time of his demise, the plaintiff’s claim for loss of support was precluded by virtue of s.7(3)(iv)(a) which provides that the loss of earnings of a person deceased shall not be taken into consideration where the person deceased has attained the age of 55 years at the time of his death, based on Tan Bin Hairuddin & Anor v Bayeh a/l Belalat  2 CLJ 775 HC; and Abdul Aziz bin Alla Pichai v Fan Chin Siang  1 LNS 313 HC; and
(2) that the various annuities and pension payments received by the deceased were actually “earnings” under s.7(3)(iv)(a), as they were subject to tax under English law.
 The core issue which we have to address in this appeal is whether the said annuities and pension payments come within the meaning of the word “earnings” contained in s.7(3)(iv)(a). The resolution to this core issue necessitates a discussion of the implications of the deceased’s age at the time of the accident; and the meaning of the word “earnings”.
IV. DECEASED’S AGE AT THE TIME OF ACCIDENT
 In order to put the plaintiff’s claim for loss of support in proper perspective, it is necessary to refer to the relevant portions of s.7 which read as follows:
FATAL ACCIDENTS AND SURVIVAL OF CAUSES OF ACTION
7. Compensation to the family of a person for loss occasioned by his death.
(1) Whenever the death of a person is caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death has been caused under such circumstances as amount in law to an offence under the Penal Code [Act 574].
(3) The damages which the party who shall be liable under subsection (1) to pay to the party for whom and for whose benefit the action is brought shall, subject to this section, be such as will compensate the party for whom and for whose benefit the action is brought for any loss of support suffered together with any reasonable expenses incurred as a result of the wrongful act, neglect or default of the party liable under subsection (1):
Provided that –
(iv) in assessing the loss of earnings in respect of any period after the death of a person where such earnings provide for or contribute to the damages under this section the Court shall:
(a) take into account that where the person deceased has attained the age of fifty five years at the time of his death, his loss of earnings for any period after his death shall not be taken into consideration……”
 While s.7 was enacted by Parliament for the benefit of the family of the deceased whose death was caused by a fatal accident and the action arising therefrom survives in favour of the family, such survival of action is subject to the proviso in s.7(3)(iv)(a) which
bars awards in cases involving individuals who have attained the age of 55 years at the time of their death. In other words, it precludes any award for loss of dependency where the deceased had attained the age of 55 years at the time of his demise.
 It is pertinent to note that s.28A(2)(c)(i) of the same Act is substantially in pari materia with s.7(3)(iv)(a). In considering s.28A(2)(c)(i) in Tan Kim Chuan & Anor v Chandu Nair a/l Krishna Nair  684, 685 SC, Abdul Hamid Omar LP (as he then was), speaking for the (then) Supreme Court, held as follows:
“It would be the function of this court to interpret the statutes where there is a lacuna or an area of ambiguity. We need only interpret the law if the intention of the legislature is not clear. This time honoured judicial trend has never been questioned by any authority and therefore before we exercise our power to interpret we must be convinced that the words to be interpreted are loose or inexact” (p.684).
“In general, we have always been inclined to follow purposive and literal constructions which means that the literal meaning of an Act will be followed where that meaning is in accordance with the legislative purpose” (p.685).
 In Tan Bin Hairuddin & Anor, supra, Abdul Malek Haji Ahmad J (later PCA) held that under s.28A(2)(c)(i), a person aged 55 or more at the time the injury was sustained cannot be awarded any damages for the loss of future earnings.
 In Abdul Aziz bin Alla Pichai, supra, Nik Hashim J (later FCJ) held that s.28A(2)(c)(i) was sufficiently clear and it could not be disputed that the Court had no power to award damages for loss of earnings for a plaintiff who was aged 55 years and above at the time of the accident.
 As s.28A(2)(c)(i) and s.7(3)(iv)(a) are substantially in pari materia, authorities which have judicially considered s.28A(2)(c)(i) are useful to us in our deliberations on s.7(3)(iv)(a). The interpretation which is given to s.28A(2)(c)(i) is indeed applicable mutatis mutandis to s.7(3)(iv)(a). In the present appeal, the intention of Parliament expressed in the proviso to s.7(3)(iv)(a) is clear and unambiguous. It is to bar the plaintiff’s claim for loss of support, as the deceased in this case was 68 years of age at the time of his demise.
V. MEANING OF “EARNINGS”
 In considering the plaintiff’s contention that his claim is not caught by the proviso because the annuities and pension payments are not “earnings” under s.7(3)(iv)(a), we note that the word ‘earnings’ is not defined in the Act. That being the case, the ordinary dictionary meaning applies.
 In Black’s Law Dictionary, ‘earnings’ is defined as ‘revenue gained from labour or services, from the investment of capital, or from assets.’ In ‘The New Shorter Oxford English Dictionary’, ‘annuity’ is ‘an investment of money entitling the investor to a series of equal annual sums’, and ‘earn’ means receive or be entitled to money.
Under s.7(11), “pension” includes “a return of contributions and any payment of a lump sum in respect of a person’s employment.”
 We must also have due regard to the all-important fact that at the trial in the Sessions Court, the plaintiff had testified that the annuities and pension payments were subject to tax under English law.
 Based on the dictionary meaning of ‘earnings’ and ‘annuity’, above, the definition of pension in s.7(11) and the plaintiff’s own evidence that the annuities and pension payments which the deceased had purchased or invested during his lifetime are subject to tax under English law, it is our considered view that such annuities and pension payments are within the meaning of the word “earnings” contained in s.7(3)(iv)(a). As the deceased was 68 years old at the time of his demise, there can be no award of loss of support arising from “earnings” under s.7(3)(iv)(a). Therefore both the Sessions Court and the High Court were correct in law in dismissing the plaintiff’s claim under this head.
 We are aware of the judgment of Mohd Noor Ahmad J (later FCJ) in Lee In Fong & Satu Lagi, supra, to the effect that the pension which the deceased drew as a Singapore police pensioner at that time of his death was not “earnings”. However, in that case, there was no evidence there that the pension which the deceased was receiving as a Singapore police pensioner was taxable. On the other hand, the facts in this appeal show that the annuities and pension
payments are taxable under English law. Therefore, Lee In Fong & Satu Lagi, supra, is clearly distinguishable.
 On the foregoing grounds, we answered the above core issue in the affirmative. We therefore found no merits in this appeal which we dismissed. We affirmed the concurrent decision of the High Court and the Sessions Court. We fixed costs of RM3,000 after hearing submissions. Deposit to the respondent (defendant) on account of the fixed costs.
DATUK WIRA LOW HOP BING
Court of Appeal Malaysia PUTRAJAYA
Dated this 19th day of January 2011
COUNSEL FOR APPELLANT:
Mr J J Chan (assisted by Ms Farleela Azli) Tetuan Shearn Delamore & Co Peguambela & Peguamcara 6th Floor, Wisma Penang Garden No.42, Jalan Sultan Ahmad Shah 10050 PENANG
COUNSEL FOR RESPONDENT:
Mr T Tharumarajah (Mr Anantharajah Jhanangata)
Tetuan Azim, Tunku Farik & Wong
Peguambela & Peguamcara
Unit 5-03, Tingkat 5
Straits Trading Building
2, Lebuh Pasar Besar
50050 KUALA LUMPUR
Lee In Fong & Satu Lagi Iwn Zahara Johan  1 CLJ (Rep) 479 HC
Tan Bin Hairuddin & Anor v Bayeh a/l Belalat  2 CLJ 775 HC
Abdul Aziz bin Alla Pichai v Fan Chin Siang @ Fun Kim Siong  1 LNS 313 HC
Tan Kim Chuan & Anor v Chandu Nair a/l Krishna Nair  684, 685 SC