The law is often esoteric, eccentric and remote. From time to time, there are movements to simplify the law, usually under the byword of "plain language". However, the task is daunting and likely impracticable given the depth and breadth the law has taken.
At the same time, ignorance of the meaning of a legal word can have grave or very expensive consequences.
Duhaime's Law Dictionary is designed to offer one-stop shopping to all of us who occasionally need to know what a certain legal word means, because our rights stand to be affected by a reference to it, or because of employment or academic research requirements.
As a lawyer, I write to my professional standards; I want each definition to be lawyer-ready.
Still, all definitions are easy to read and all have been painstakingly researched and written in plain language by lawyer Lloyd Duhaime. In most cases, the definition contains samples of the word used in a law or how it may have been described or used in a law book or a case. Where available or known to the author, HTML links are provided allowing the reader to go directly to the cited case.
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Saturday, April 24, 2010
Thursday, April 22, 2010
Malaysian Employment Law
WHAT IS EMPLOYMENT ?
Employment means work or service performed by an individual to the task at hand for another person or entity in exchange for wages or other remuneration.
WHAT IS EMPLOYMENT LAW ?
Employment Law is the law which regulates the operation of the labour market in general and the employment relationship between employers and employees in particular. Examples include hiring process, suspension from work, maternity rights, layoff and wages.
The obligations and rights of an employment contract are covered by the Employment law.
When an offer for employment is made by an employer to an employee, the law governing the relationship between an employee and an employer begins.
WHAT ARE THE BASIC TERMS USED TO DESCRIBE THE EMPLOYMENT RELATIONSHIP ?
An employer in relation to an employee or a workman, means a person by whom the employee or workman is employed. An employer obtains the services of another to perform work and has direct control of the way in which the work is to be done.
An employer shall provide the means through which the services will be performed such as providing a place where the work is to be performed and tools required to get the job done.
Contract of service means any agreement, whether express or implied, and if express, whether oral or in writing where the employer agrees to employ and the employee agrees to be employed and includes an apprenticeship contract.
In general, an employee means a person who has entered into or works under a contract of employment. There are different interpretations for the term, employee, in different Acts governing the labour market in Malaysia. Those interpretations will determine whether you are an employee protected under the scope of an Act.
Where an employee begins employment with an employer and for a period of more than one month, such employee must be given a written contract of employment with particulars of the terms and conditions of employment including the notice period required to terminate the contract of employment.
Employment means work or service performed by an individual to the task at hand for another person or entity in exchange for wages or other remuneration.
WHAT IS EMPLOYMENT LAW ?
Employment Law is the law which regulates the operation of the labour market in general and the employment relationship between employers and employees in particular. Examples include hiring process, suspension from work, maternity rights, layoff and wages.
The obligations and rights of an employment contract are covered by the Employment law.
When an offer for employment is made by an employer to an employee, the law governing the relationship between an employee and an employer begins.
WHAT ARE THE BASIC TERMS USED TO DESCRIBE THE EMPLOYMENT RELATIONSHIP ?
An employer in relation to an employee or a workman, means a person by whom the employee or workman is employed. An employer obtains the services of another to perform work and has direct control of the way in which the work is to be done.
An employer shall provide the means through which the services will be performed such as providing a place where the work is to be performed and tools required to get the job done.
Contract of service means any agreement, whether express or implied, and if express, whether oral or in writing where the employer agrees to employ and the employee agrees to be employed and includes an apprenticeship contract.
In general, an employee means a person who has entered into or works under a contract of employment. There are different interpretations for the term, employee, in different Acts governing the labour market in Malaysia. Those interpretations will determine whether you are an employee protected under the scope of an Act.
Where an employee begins employment with an employer and for a period of more than one month, such employee must be given a written contract of employment with particulars of the terms and conditions of employment including the notice period required to terminate the contract of employment.
The Law Of Ueki
The Law of Ueki (うえきの法則, Ueki no Hōsoku?) is a Japanese manga series by Tsubasa Fukuchi. It was first serialised in the manga magazine Weekly Shōnen Sunday in 2002 and ended in 2004. Sixteen tankōbon volumes was compiled and published by Shogakukan. An anime adaptation was first broadcast on TV Tokyo on April 4, 2005, ended with 51 episodes on March 27, 2006. It was produced by Studio Deen. A manga sequel, The Law of Ueki Plus (うえきの法則プラス, Ueki no Hōsoku PURASU?), continues the series as of September 2005 by the same author and in the same magazine.
The manga was licensed for distribution in North America by Viz Media, while the anime adaptation was licensed by Geneon. On July 3, 2008, Geneon Entertainment and Funimation Entertainment announced an agreement to distribute select titles in North America. While Geneon Entertainment will still retain the license, Funimation Entertainment will assume exclusive rights to the manufacturing, marketing, sales and distribution of select titles. The Law of Ueki was one of several titles involved in the deal.[1] ImaginAsian TV broadcast the anime series to the American audience starting early 2007.
Kosuke Ueki (植木 耕助, Ueki Kōsuke?) Voiced by: Romi Park (Japanese), Cole Howard (English)
Kosuke Ueki is the main character in the series. He is in Class 1-C at Hinokuni Junior High School. Ueki's ability is given to him by Kobayashi (a.k.a. Mr. K), who is also Ueki's homeroom teacher. He is also seen wearing pinkish-red shoes during his first fight with Robert Haydn.
Ueki is an unusually calm individual, and doesn't care about what happens to him. He can be found snoozing in class, letting children use him as a target for shooting soccer balls (or in one case, a surfboard),and also calling the police without panicking when he faces a gang of rowdy teenagers. However, he cares for people around them, even going as far as saving Robert Haydn from falling debris in the Dougra Mansion. He also seems have a strong battle sense, as he often finds his opponent's weak points, or unique strategies to defeat them.
According to a short profile of the main characters of The Law of Ueki (published in the end of manga vol. 16 by the author), Ueki's hobbies include cleaning up his town. In the first volume of the manga, Ueki is seen planting trees in the town park.
Ueki is a genuinely kind person who is always trying to help people. He is also actually a heavenly being sent to Earth by his father in order to take part in this tournament (but unfortunately, his father did not get to become a king candidate so Ueki got picked by Mr. K instead). Being a heavenly being allows him powers beyond his tree-making skills.
During the battle to win the talent of blank, Ueki discovers that he is not just a celestial, but a neo-celestial. Neo-celestials have more power than normal celestials and Ueki uses that power to win battles creatively.
Ai Mori (森 あい, Mori Ai?) Voiced by: Tomoko Kawakami (Japanese), Lori Barnes-Smith (English)
Ai Mori is one of Ueki's classmates at Hinokuni Junior High School. When in a casual mood, Mori is usually upbeat and friendly, although she is often shown with a very shallow side, initially believing that all power-users (with the exception of Ueki) are dangerous enemies that can't be trusted. Still, Mori cares deeply for her friends, especially Ueki. She discovers Ueki's power early on, coming to a rather unusual conclusion and at first believing him to be an alien. Upon learning of the competition Ueki is in, she decides to back him up, to keep him from losing all his talents and disappearing because of it.
The manga was licensed for distribution in North America by Viz Media, while the anime adaptation was licensed by Geneon. On July 3, 2008, Geneon Entertainment and Funimation Entertainment announced an agreement to distribute select titles in North America. While Geneon Entertainment will still retain the license, Funimation Entertainment will assume exclusive rights to the manufacturing, marketing, sales and distribution of select titles. The Law of Ueki was one of several titles involved in the deal.[1] ImaginAsian TV broadcast the anime series to the American audience starting early 2007.
Kosuke Ueki (植木 耕助, Ueki Kōsuke?) Voiced by: Romi Park (Japanese), Cole Howard (English)
Kosuke Ueki is the main character in the series. He is in Class 1-C at Hinokuni Junior High School. Ueki's ability is given to him by Kobayashi (a.k.a. Mr. K), who is also Ueki's homeroom teacher. He is also seen wearing pinkish-red shoes during his first fight with Robert Haydn.
Ueki is an unusually calm individual, and doesn't care about what happens to him. He can be found snoozing in class, letting children use him as a target for shooting soccer balls (or in one case, a surfboard),and also calling the police without panicking when he faces a gang of rowdy teenagers. However, he cares for people around them, even going as far as saving Robert Haydn from falling debris in the Dougra Mansion. He also seems have a strong battle sense, as he often finds his opponent's weak points, or unique strategies to defeat them.
According to a short profile of the main characters of The Law of Ueki (published in the end of manga vol. 16 by the author), Ueki's hobbies include cleaning up his town. In the first volume of the manga, Ueki is seen planting trees in the town park.
Ueki is a genuinely kind person who is always trying to help people. He is also actually a heavenly being sent to Earth by his father in order to take part in this tournament (but unfortunately, his father did not get to become a king candidate so Ueki got picked by Mr. K instead). Being a heavenly being allows him powers beyond his tree-making skills.
During the battle to win the talent of blank, Ueki discovers that he is not just a celestial, but a neo-celestial. Neo-celestials have more power than normal celestials and Ueki uses that power to win battles creatively.
Ai Mori (森 あい, Mori Ai?) Voiced by: Tomoko Kawakami (Japanese), Lori Barnes-Smith (English)
Ai Mori is one of Ueki's classmates at Hinokuni Junior High School. When in a casual mood, Mori is usually upbeat and friendly, although she is often shown with a very shallow side, initially believing that all power-users (with the exception of Ueki) are dangerous enemies that can't be trusted. Still, Mori cares deeply for her friends, especially Ueki. She discovers Ueki's power early on, coming to a rather unusual conclusion and at first believing him to be an alien. Upon learning of the competition Ueki is in, she decides to back him up, to keep him from losing all his talents and disappearing because of it.
Tort Law
.,. Tort Law .,.
A tort is a legal wrong. Tort law is a branch of the civil law; the other main branches are contract and property law. Whereas in criminal law the plaintiff is always the state and the defendant, if found guilty of a crime, is punished by the state, in civil law the dispute is typically between private parties (though the government can also sue and be sued). In the case of torts, the plaintiff is the victim of an alleged wrong and the unsuccessful defendant is either directed by the court to pay damages to the plaintiff (the usual remedy) or else to desist from the wrongful activity (so-called "injunctive relief"). Examples include intentional torts such as battery, defamation, and invasion of privacy and unintentional torts such as negligence. Most contemporary tort theory focuses on the legal consequences of accidents, where the relevant forms of liability are negligence and strict liability. This entry likewise focuses on these forms of liability.
According to the principle of corrective justice, an individual who has wronged another has a duty to repair the wrongful losses occasioned thereby. The corrective justice account thus illuminates not just the bilateral structure of tort litigation, but tort law's emphasis on harm caused rather than harm risked.
Arguably, central to tort law is the moral notion of ‘ownership’, not the moral notion of ‘blame’. Tort law picks out a particular way of recognizing one's ‘ownership’ of some of the untoward outcomes for which one is responsible. It does this by imposing a duty to make good the costs one's wrongs have imposed on those one has wronged. And so, rather than trying to determine whether the injurer has satisfied the conditions that would warrant blaming him for what he has done, tort law inquires into whether the injurer has satisfied conditions necessary to impose on him a duty to repair the plaintiff's loss. In short, the law asks whether the loss is attributable to him as his doing: whether, to use the currently fashionable phrase, he is ‘outcome responsible’ for it. In the prevailing view, to be outcome responsible, the outcome must be foreseeable and avoidable.[2] This emphasis on the ascription of responsibility for outcomes rather than on ascriptions of blame or culpability makes sense within the corrective justice account of tort law in ways in which it would not within a traditional retributive view.
According to economic analysis, all liabilities are simply one or another cost. There is no significant normative difference among punishments, sanctions, duties of repair and taxes. All that matters is the way in which each impacts rational decision-making. But there are important normative differences among these kinds of costs that this crude picture misses. Tort law imposes a duty of repair, and while it is true that a person who is under a duty to act is constrained in the set of actions open to him, duties are neither punishments nor sanctions. In contrast with tort law, criminal wrongdoers are subject to punishment for their crimes, and while this means that they are not at liberty to prevent others from punishing them, they have no duty to be punished or to permit others to punish them.
There are other significant differences between the duty of repair in torts and punishment as a criminal sanction. The duty of repair in torts is a debt of repayment one owes those one has wronged and has injured as a result. Like other debts of repayment, it can be discharged by third parties — and not only if the debt holder has authorized repayment. By contrast ‘debts’ incurred as a result of criminal mischief cannot be discharged by third parties. I cannot serve your prison sentence justly. To be sure, I might be imprisoned for a crime you have committed, and my love for you may lead me to substitute myself for you when the time comes for you to begin your prison term. But both cases involve injustice: the first to me, the second to the world as a whole.
Nor can one guard against liability to criminal sanction by purchasing insurance. In contrast, it is common to purchase insurance to guard against the burdens of tort liability. Indeed, in some cases purchasing third party insurance is mandatory. Not only is it a mistake to lump together sanctions, taxes and liability judgments as interchangeable implements in the legal reformer's tool box, the practices for which each is appropriate are governed by different norms. Failure to notice the differences in character of these ‘costs’ disables one from understanding the underlying norms governing our differing legal and social institutions.
The emphasis on duties of repair as well as on the range of ways in which those duties can be discharged consonant with justice is illuminated by the principle of corrective justice in ways in which these features of tort law are not illuminated by either retributive or economic theory. The claim is that corrective justice explains the relationship between the duty to prevent or avoid harm on the one hand, and the duty to repair its costs on the other. It is a principle that grounds duties of repair, not the duties of care that are the bases of those duties of repair. Though it grounds duties of repair, it does not mandate a mechanism by which those duties are to be discharged.
It is tempting to think of corrective justice as a goal of tort law in the same way that economists think of efficiency or optimal deterrence as a goal of tort law. The better view is that corrective justice is not a goal of the law in the way in which efficiency might be. Rather, corrective justice itself is a principle of justification; it seeks to articulate grounds upon which a certain category of duties rest. It claims that certain duties of repair or repayment are grounded on one's responsibility for them. The grounds of the duty to repair are: (1) the fact that one has a prior duty to take into account the interests of another and to mitigate one's own conduct accordingly; (2) the fact that one has failed to do so; (3) the fact that one's failure to do so results (in an appropriate way) in harm to another; and (4) the harm that results is one for which can be charged to an agent as his doing, or, in the contemporary jargon, for which he is outcome responsible. No one claims that these grounds must be satisfied if ever an agent is to have a duty of repair or repayment. Corrective justice grounds some, but, very likely, not all of our duties of repair.
If this is the way to think about corrective justice, how ought we think about its relationship to fault and strict liability? The question is whether the duties of repair and the conditions under which they arise in tort law are ones which are by and large grounded in the principle of corrective justice so conceived. As I argued above, both strict and fault liability in torts involve wrongs, that is, the breach of an underlying duty of care. The fault in fault liability is not a modifier of the character of the injurer but a constraint on the content of the underlying duty of care he owes the plaintiff. The difference between fault and strict liability standards is a difference in the nature of the content of the underlying duties we owe one another.
In strict liability, the defendant is thought to owe the plaintiff a duty of the form A not to harm by X-ing. It is natural to think that the duty is absolute or unconstrained. But it is in fact constrained in several ways, and in each of the ways it is constrained, the duty in strict liability resonates with the conditions of a duty of repair in corrective justice. The blaster is liable strictly, not to everyone who is injured by his conduct, but only to those to whom he owed a duty not to harm by blasting: those who fall within the ambit of foreseeable risk. Second, he is not liable to all those that he injures because he blasts, but only to those that are injured in the appropriate way by his blasting. In strict liability, there are the requirements of a wrong to a plaintiff (class), a harm, the appropriate causal connection between the two, and other elements of responsibility for the outcome, including forseeability and avoidability.
According to the principle of corrective justice, an individual who has wronged another has a duty to repair the wrongful losses occasioned thereby. The corrective justice account thus illuminates not just the bilateral structure of tort litigation, but tort law's emphasis on harm caused rather than harm risked.
Arguably, central to tort law is the moral notion of ‘ownership’, not the moral notion of ‘blame’. Tort law picks out a particular way of recognizing one's ‘ownership’ of some of the untoward outcomes for which one is responsible. It does this by imposing a duty to make good the costs one's wrongs have imposed on those one has wronged. And so, rather than trying to determine whether the injurer has satisfied the conditions that would warrant blaming him for what he has done, tort law inquires into whether the injurer has satisfied conditions necessary to impose on him a duty to repair the plaintiff's loss. In short, the law asks whether the loss is attributable to him as his doing: whether, to use the currently fashionable phrase, he is ‘outcome responsible’ for it. In the prevailing view, to be outcome responsible, the outcome must be foreseeable and avoidable.[2] This emphasis on the ascription of responsibility for outcomes rather than on ascriptions of blame or culpability makes sense within the corrective justice account of tort law in ways in which it would not within a traditional retributive view.
According to economic analysis, all liabilities are simply one or another cost. There is no significant normative difference among punishments, sanctions, duties of repair and taxes. All that matters is the way in which each impacts rational decision-making. But there are important normative differences among these kinds of costs that this crude picture misses. Tort law imposes a duty of repair, and while it is true that a person who is under a duty to act is constrained in the set of actions open to him, duties are neither punishments nor sanctions. In contrast with tort law, criminal wrongdoers are subject to punishment for their crimes, and while this means that they are not at liberty to prevent others from punishing them, they have no duty to be punished or to permit others to punish them.
There are other significant differences between the duty of repair in torts and punishment as a criminal sanction. The duty of repair in torts is a debt of repayment one owes those one has wronged and has injured as a result. Like other debts of repayment, it can be discharged by third parties — and not only if the debt holder has authorized repayment. By contrast ‘debts’ incurred as a result of criminal mischief cannot be discharged by third parties. I cannot serve your prison sentence justly. To be sure, I might be imprisoned for a crime you have committed, and my love for you may lead me to substitute myself for you when the time comes for you to begin your prison term. But both cases involve injustice: the first to me, the second to the world as a whole.
Nor can one guard against liability to criminal sanction by purchasing insurance. In contrast, it is common to purchase insurance to guard against the burdens of tort liability. Indeed, in some cases purchasing third party insurance is mandatory. Not only is it a mistake to lump together sanctions, taxes and liability judgments as interchangeable implements in the legal reformer's tool box, the practices for which each is appropriate are governed by different norms. Failure to notice the differences in character of these ‘costs’ disables one from understanding the underlying norms governing our differing legal and social institutions.
The emphasis on duties of repair as well as on the range of ways in which those duties can be discharged consonant with justice is illuminated by the principle of corrective justice in ways in which these features of tort law are not illuminated by either retributive or economic theory. The claim is that corrective justice explains the relationship between the duty to prevent or avoid harm on the one hand, and the duty to repair its costs on the other. It is a principle that grounds duties of repair, not the duties of care that are the bases of those duties of repair. Though it grounds duties of repair, it does not mandate a mechanism by which those duties are to be discharged.
It is tempting to think of corrective justice as a goal of tort law in the same way that economists think of efficiency or optimal deterrence as a goal of tort law. The better view is that corrective justice is not a goal of the law in the way in which efficiency might be. Rather, corrective justice itself is a principle of justification; it seeks to articulate grounds upon which a certain category of duties rest. It claims that certain duties of repair or repayment are grounded on one's responsibility for them. The grounds of the duty to repair are: (1) the fact that one has a prior duty to take into account the interests of another and to mitigate one's own conduct accordingly; (2) the fact that one has failed to do so; (3) the fact that one's failure to do so results (in an appropriate way) in harm to another; and (4) the harm that results is one for which can be charged to an agent as his doing, or, in the contemporary jargon, for which he is outcome responsible. No one claims that these grounds must be satisfied if ever an agent is to have a duty of repair or repayment. Corrective justice grounds some, but, very likely, not all of our duties of repair.
If this is the way to think about corrective justice, how ought we think about its relationship to fault and strict liability? The question is whether the duties of repair and the conditions under which they arise in tort law are ones which are by and large grounded in the principle of corrective justice so conceived. As I argued above, both strict and fault liability in torts involve wrongs, that is, the breach of an underlying duty of care. The fault in fault liability is not a modifier of the character of the injurer but a constraint on the content of the underlying duty of care he owes the plaintiff. The difference between fault and strict liability standards is a difference in the nature of the content of the underlying duties we owe one another.
In strict liability, the defendant is thought to owe the plaintiff a duty of the form A not to harm by X-ing. It is natural to think that the duty is absolute or unconstrained. But it is in fact constrained in several ways, and in each of the ways it is constrained, the duty in strict liability resonates with the conditions of a duty of repair in corrective justice. The blaster is liable strictly, not to everyone who is injured by his conduct, but only to those to whom he owed a duty not to harm by blasting: those who fall within the ambit of foreseeable risk. Second, he is not liable to all those that he injures because he blasts, but only to those that are injured in the appropriate way by his blasting. In strict liability, there are the requirements of a wrong to a plaintiff (class), a harm, the appropriate causal connection between the two, and other elements of responsibility for the outcome, including forseeability and avoidability.
Case Law
JU and Another v See Tho Kai Yin
[2005] 4 SLR 96; [2005] SGHC 140
Decision Date: 08 Aug 2005
Court: High Court
Coram: Lai Siu Chiu J
Counsel: V K Rai (V K Rai and Partners) for the plaintiffs, Lek Siang Pheng and Terence Tan (Rodyk and Davidson) for the defendants
Introduction
1 The first plaintiff is a Singaporean and a businesswoman by occupation. She had worked in Japan since the 1980s, travelled frequently (to Singapore, Malaysia, Japan, Taiwan and China) and spent most of her time outside Singapore.
2 The second plaintiff is the first plaintiff’s son by the first plaintiff’s husband (“the husband”) who is a Chinese national from Shanghai. The first plaintiff married the husband in a customary ceremony in China in October 2000. The first plaintiff was then 43 years of age, her birth date being 27 June 1957. The husband was ten years younger than her, a fact which prompted opposition to the marriage from the husband’s family. The parties’ marriage was registered in Singapore on 28 November 2001.
3 The second plaintiff was born by Caesarean delivery on 23 January 2002 in Singapore and suffers from Down’s syndrome. As at the date of the trial, he was about two and a half years of age.
4 See Tho Kai Yin (the first defendant) is a medical doctor who practises as an obstetrician and gynaecologist under the name and style of The See Tho Clinic for Women (“the Clinic”) at 6 Napier Road, #07-11/12, Gleneagles Medical Centre, Singapore 258499. He is a visiting consultant attached to the Department of Obstetrics and Gynaecology, National University of Singapore, with teaching responsibilities. The Family Clinic shares premises with the Clinic. However, it is a separate medical practice run by family physician Saleha Johari, who is the wife of the first defendant. When the first defendant took the stand, counsel for the plaintiffs sensibly informed the court that his clients withdrew their claim against The Family Clinic.
The issues:
62 There are three issues I need to determine in this case:
Conclusion:
(a) Did the first defendant owe a duty to the first plaintiff to schedule an appointment for her at the earliest possible date?
(b) Was the first defendant’s management of the first plaintiff’s pregnancy up to 24 November 2001 negligent or in breach of contract?
(c) If the answer to (b) is in the positive, did the breach of the duty of care cause the plaintiffs’ alleged losses?
dismiss the claims of both plaintiffs with one set of costs to the defendants.
[2005] 4 SLR 96; [2005] SGHC 140
Decision Date: 08 Aug 2005
Court: High Court
Coram: Lai Siu Chiu J
Counsel: V K Rai (V K Rai and Partners) for the plaintiffs, Lek Siang Pheng and Terence Tan (Rodyk and Davidson) for the defendants
Introduction
1 The first plaintiff is a Singaporean and a businesswoman by occupation. She had worked in Japan since the 1980s, travelled frequently (to Singapore, Malaysia, Japan, Taiwan and China) and spent most of her time outside Singapore.
2 The second plaintiff is the first plaintiff’s son by the first plaintiff’s husband (“the husband”) who is a Chinese national from Shanghai. The first plaintiff married the husband in a customary ceremony in China in October 2000. The first plaintiff was then 43 years of age, her birth date being 27 June 1957. The husband was ten years younger than her, a fact which prompted opposition to the marriage from the husband’s family. The parties’ marriage was registered in Singapore on 28 November 2001.
3 The second plaintiff was born by Caesarean delivery on 23 January 2002 in Singapore and suffers from Down’s syndrome. As at the date of the trial, he was about two and a half years of age.
4 See Tho Kai Yin (the first defendant) is a medical doctor who practises as an obstetrician and gynaecologist under the name and style of The See Tho Clinic for Women (“the Clinic”) at 6 Napier Road, #07-11/12, Gleneagles Medical Centre, Singapore 258499. He is a visiting consultant attached to the Department of Obstetrics and Gynaecology, National University of Singapore, with teaching responsibilities. The Family Clinic shares premises with the Clinic. However, it is a separate medical practice run by family physician Saleha Johari, who is the wife of the first defendant. When the first defendant took the stand, counsel for the plaintiffs sensibly informed the court that his clients withdrew their claim against The Family Clinic.
The issues:
62 There are three issues I need to determine in this case:
Conclusion:
(a) Did the first defendant owe a duty to the first plaintiff to schedule an appointment for her at the earliest possible date?
(b) Was the first defendant’s management of the first plaintiff’s pregnancy up to 24 November 2001 negligent or in breach of contract?
(c) If the answer to (b) is in the positive, did the breach of the duty of care cause the plaintiffs’ alleged losses?
dismiss the claims of both plaintiffs with one set of costs to the defendants.
Malaysia Tax Law
BASIS OF TAXATION
Income tax is generally imposed on a territorial basis in that only income accruing in or derived from Malaysia is liable to tax. However, resident individuals and other non-corporate entities are also taxed on foreign-sourced income remitted into Malaysia. Foreign-sourced income received by resident companies are not subject to tax even if such income is remitted to Malaysia.
Income derived by tax residents from businesses of banking, insurance and air/sea transport operations are assessable on a world income scope.
Relief from double taxation of foreign-sourced income is available by means of bilateral credit if there is a tax treaty or unilateral relief if there is no tax treaty. The relief is restricted to the lower of Malaysian tax payable on the foreign-sourced income or foreign tax paid if there is a treaty or one-half of the foreign tax paid there is no treaty.
Sources of Income Liable to Tax
Sources of income which are liable to income tax are as follows:
Gains and profits from trade, profession and business
Salaries, remunerations, gains and profits from an employment
Dividends, interests or discounts
Rents, royalties or premiums
Pensions, annuities or other periodic payments/li>
Other gains or profits of an income nature not mentioned above.
Chargeable income is arrived at after adjusting for expenses incurred wholly and exclusively in the production of the income. Specific provisions or reserves for anticipated losses or contingent liabilities are not tax deductible. No deduction for book depreciation is allowed although capital allowances are granted. Unabsorbed losses may be carried forward indefinitely to offset against future income.
Personal Income Tax
All individuals are liable to tax on income accrued in, derived from or remitted to Malaysia. The rate of tax depends on the resident status of the individual which is determined by the duration of his stay in the country (as stipulated under Section 7 in the Income Tax Act 1967).
Resident Individual
A resident individual is taxed on his chargeable income at graduated rates from 2% to 30% after the deduction of tax reliefs. However, an individual with chargeable income of less than RM2,500 is taxed at zero rate.
Personal Reliefs
The chargeable income of an individual resident is arrived at by deducting from his total income the following personal reliefs:
(a) Personal = RM5,000 (a further relief of RM5,000 if the taxpayer is a disabled person)
(b) Wife = RM3,000 (a further relief of RM2,500 if the wife is a disabled person)
(c) Medical expenses of parents up to a maximum of RM5,000. Medical expenses for serious illnesses for individual, wife or child up to a maximum of RM5,000.
(d) Expenditure for purchase of basic support equipment for the individual, his wife, child or parent who is disabled the up to a maximum of RM5,000
(e) Unmarried children below the age of 18 = RM800 per child
The maximum relief for unmarried children (regardless of age) receiving full-time education in universities and institutions of higher education in Malaysia is four times the normal relief.
(f) Incapacitated children RM5,000 per child
(g) Contributions to the Employees Provident Fund and insurance or takaful premiums for life policies are allowed a maximum total tax relief of RM5,000. A further tax relief of RM2,000 is given for insurance or takaful premiums with respect to medical and educational purposes.
A married woman whose income is separately assessed generally has her overall tax liability reduced, although this may not always be the case. The separate assessment covers all her income sources. She may, however, elect for joint assessment, in which case, the husband is given a wife relief of RM3,000.
Tax rebate
Tax liability of a resident individual is reduced by rebates which are granted as follows:
(a) For an individual with a chargeable income not exceeding RM10,000, a rebate of RM110 is given. A further rebate of RM60 is given for his wife. A wife who is assessed separately will be entitled to a rebate of RM110 if her chargeable income does not exceed RM10,000.
(b) The equivalent of amount paid in respect of any zakat, fitrah or other Islamic religious dues which are obligatory.
(c) A sum of RM400 for the purchase of a computer by an individual or wife.
(d) The amount of fee paid to the government for the issue of an employment pass, visit pass or work permit.
Non-resident Individual
Generally, a nonresident individual is liable to tax at the rate of 30% and he is not entitled to any personal relief. He is entitled to claim tax rebate only for item (d) as stated in para 4.1 above. However, for the following types of income, nonresident individuals are subject to a withholding tax which is a final tax.
Income derived by tax residents from businesses of banking, insurance and air/sea transport operations are assessable on a world income scope.
Relief from double taxation of foreign-sourced income is available by means of bilateral credit if there is a tax treaty or unilateral relief if there is no tax treaty. The relief is restricted to the lower of Malaysian tax payable on the foreign-sourced income or foreign tax paid if there is a treaty or one-half of the foreign tax paid there is no treaty.
Sources of Income Liable to Tax
Sources of income which are liable to income tax are as follows:
Gains and profits from trade, profession and business
Salaries, remunerations, gains and profits from an employment
Dividends, interests or discounts
Rents, royalties or premiums
Pensions, annuities or other periodic payments/li>
Other gains or profits of an income nature not mentioned above.
Chargeable income is arrived at after adjusting for expenses incurred wholly and exclusively in the production of the income. Specific provisions or reserves for anticipated losses or contingent liabilities are not tax deductible. No deduction for book depreciation is allowed although capital allowances are granted. Unabsorbed losses may be carried forward indefinitely to offset against future income.
Personal Income Tax
All individuals are liable to tax on income accrued in, derived from or remitted to Malaysia. The rate of tax depends on the resident status of the individual which is determined by the duration of his stay in the country (as stipulated under Section 7 in the Income Tax Act 1967).
Resident Individual
A resident individual is taxed on his chargeable income at graduated rates from 2% to 30% after the deduction of tax reliefs. However, an individual with chargeable income of less than RM2,500 is taxed at zero rate.
Personal Reliefs
The chargeable income of an individual resident is arrived at by deducting from his total income the following personal reliefs:
(a) Personal = RM5,000 (a further relief of RM5,000 if the taxpayer is a disabled person)
(b) Wife = RM3,000 (a further relief of RM2,500 if the wife is a disabled person)
(c) Medical expenses of parents up to a maximum of RM5,000. Medical expenses for serious illnesses for individual, wife or child up to a maximum of RM5,000.
(d) Expenditure for purchase of basic support equipment for the individual, his wife, child or parent who is disabled the up to a maximum of RM5,000
(e) Unmarried children below the age of 18 = RM800 per child
The maximum relief for unmarried children (regardless of age) receiving full-time education in universities and institutions of higher education in Malaysia is four times the normal relief.
(f) Incapacitated children RM5,000 per child
(g) Contributions to the Employees Provident Fund and insurance or takaful premiums for life policies are allowed a maximum total tax relief of RM5,000. A further tax relief of RM2,000 is given for insurance or takaful premiums with respect to medical and educational purposes.
A married woman whose income is separately assessed generally has her overall tax liability reduced, although this may not always be the case. The separate assessment covers all her income sources. She may, however, elect for joint assessment, in which case, the husband is given a wife relief of RM3,000.
Tax rebate
Tax liability of a resident individual is reduced by rebates which are granted as follows:
(a) For an individual with a chargeable income not exceeding RM10,000, a rebate of RM110 is given. A further rebate of RM60 is given for his wife. A wife who is assessed separately will be entitled to a rebate of RM110 if her chargeable income does not exceed RM10,000.
(b) The equivalent of amount paid in respect of any zakat, fitrah or other Islamic religious dues which are obligatory.
(c) A sum of RM400 for the purchase of a computer by an individual or wife.
(d) The amount of fee paid to the government for the issue of an employment pass, visit pass or work permit.
Non-resident Individual
Generally, a nonresident individual is liable to tax at the rate of 30% and he is not entitled to any personal relief. He is entitled to claim tax rebate only for item (d) as stated in para 4.1 above. However, for the following types of income, nonresident individuals are subject to a withholding tax which is a final tax.
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