Trevor Padasian and Susanah Ng examine a ground-breaking case on domestic violence.
 
INTRODUCTION
 
From a national survey conducted between 1990 and 1992 by Women’s Aid Organisation (WAO), a Malaysian non-profit organisation for women survivors of domestic violence and their children, it was estimated that in 1989 an astonishing 1.8 million women or 36% of women over the age of 15 were beaten by their husbands or boyfriends; yet, only 909 women actually reported violence to the police (http://www.wao.org.my/Domestic+Violence_37_5_1.htm).
 
These alarming statistics may have contributed to the enactment of the Malaysian Domestic Violence Act 1994 (“DVA”) which seeks to “provide for legal protection in situation of domestic violence and matters incidental thereto”. Malaysia has also become a signatory or is committed to achieving the goals of the Convention on the Elimination of All Forms of Discrimination Against Women, the Beijing Declaration 1995 and Platform for Action, and Millennium Development Goals (Goal 3), all of which seek to protect women against discrimination and all kinds of violence in everyday life.
 
Since the coming into force of the DVA nearly 20 years ago on 1 June 1996, there has not been a single case reported where a court has awarded damages, whether in the form of monetary compensation or otherwise, to the victims of domestic violence, that is ... until 28 August 2015.
 
On that date, in an unprecedented decision, the Family Court in Chin Yoke Yin v Tan Theam Huat [2015] 11 MLJ 577 awarded compensation for personal injuries suffered as a result of domestic violence pursuant to section 10 of the DVA.
 
BRIEF FACTS
 
The Petitioner Wife and Respondent Husband were married for about 25 years before the Petitioner Wife filed for a divorce in Court under the Law Reform (Marriage and Divorce) Act 1976 (“LRMDA”).
 
The Petitioner Wife’s main ground for divorce was that the marriage had irretrievably broken down in that the Respondent Husband had behaved in such a way that she could not reasonably be expected to live with him. The Petitioner Wife gave evidence that she was a victim of domestic violence many times during the marriage.
 
The Respondent Husband agreed for the marriage to be dissolved and the Court was left to determine three issues, namely:
 
(1)     Whether the Court had jurisdiction to hear the case with regard to domestic violence and thus determine the Petitioner Wife’s claim for damages as compensation for domestic violence suffered;
 
(2)     Maintenance of the Petitioner Wife and daughter; and
 
(3)     Division of matrimonial assets.
 
DECISION OF THE FAMILY COURT
 
Madam Justice Noraini binti Abdul Rahman (“the Judge”) who presided over this matter held that:
 
(1)     The Court has jurisdiction to hear and determine the Petitioner Wife’s claim for compensation for damages for domestic violence as the DVA was specifically cited in the intitulement (or heading) of the Petitioner Wife’s Divorce Petition. As this was a matrimonial matter, it fell within the civil jurisdiction of the High Court. The Judge awarded RM4,000 as compensation to the Petitioner Wife;
 
(2)     The Petitioner Wife be paid RM4,000 per month and the daughter, RM1,500 per month, by way of maintenance; and
 
(3)     The matrimonial assets be divided equally between the Petitioner Wife and Respondent Husband.
 
This commentary will discuss the aspects of Her Ladyship’s judgment that relate to the issue of domestic violence.
 
ANALYSIS
 
Jurisdiction to award compensation for domestic violence
 
The Judge’s basis for jurisdiction to hear and award compensation in this case is correct. Section 2 of the DVA defines “Court” to mean “in respect of civil proceedings for compensation under section 10, the court competent to hear such claims in tort”. The Family Court which is a branch of the High Court is competent to hear such claims in tort and is thus competent to hear the Petitioner Wife’s claim for compensation under the DVA. 
 
Where a victim of domestic violence suffers personal injuries or damage to property or financial loss as a result of the domestic violence, section 10(1) of the DVA empowers the court to “award such compensation in respect of the injury or damage or loss as it deems just and reasonable”.
 
Definition of “domestic violence”
 
Section 2 of the DVA defines “domestic violence” as being “the commission of one or more of the following acts:
 
(a)     wilfully or knowingly placing, or attempting to place, the victim in fear of physical injury;
 
(b)     causing physical injury to the victim by such act which is known or ought to have been known would result in physical injury;
 
(c)     compelling the victim by force or threat to engage in any conduct or act, sexual or otherwise, from which the victim has a right to abstain;
 
(d)     confining or detaining the victim against the victim's will;
 
(e)     causing mischief or destruction or damage to property with intent to cause or knowing that it is likely to cause distress or annoyance to the victim;
 
(f)      causing psychological abuse which includes emotional injury to the victim;
 
(g)     causing the victim to suffer delusions by using any intoxicating substance or any other substance without the victim’s consent or if the consent is given, the consent was unlawfully obtained; or
 
(h)     in the case where the victim is a child, causing the victim to suffer delusions by using any intoxicating substance or any other substance,
 
by a person, whether by himself or through a third party, against-
 
(i)      his or her spouse;
 
(ii)     his or her former spouse;
 
(iii)    a child;
 
(iv)    an incapacitated adult; or
 
(v)     any other member of the family …” (Emphasis added)
 
In order to constitute “domestic violence”, an act must fall within one of the acts listed in paragraphs (a) to (h) of the foregoing definition.
 
In addition, a person would be considered a victim of an act of domestic violence only if he or she is one of the persons listed in paragraphs (i) to (v) of the definition. Given that the definition is gender-neutral, a victim could either be the wife or husband. Interestingly, a boyfriend or girlfriend who is not an incapacitated adult would not fall within the categories of persons who are protected under the DVA.
 
Relevant factors
 
The Court may take into account the factors set out in section 10(2) of the DVA when it hears a claim for compensation. These factors include the pain and suffering of the victim, the nature and extent of physical injury or psychological abuse and emotional injury suffered, the cost of medical treatment, loss of earnings, the value of the property destroyed or damaged, and necessary and reasonable expenses incurred if the victim is compelled to be separated from the perpetrator due to the domestic violence.

Medical evidence of injuries
 
The Petitioner Wife had adduced evidence of her injuries by tendering a medical report and calling two doctors to testify that she had sought treatment at a hospital for assault by the Respondent Husband. According to her, she had discovered him in flagrante delicto with another woman in his work place which was a hotel. It was then that he had pushed the Petitioner Wife in three different places, grabbed her upper limb and pushed her backwards. Her medical report noted that she suffered from soft tissue injury, comprising abrasion wounds at her right and left elbows and tenderness at her left thigh region.
 
The Judge accepted the evidence and awarded damages to the Petitioner Wife. Although not expressly stated, it was implicit in the judgment that the Judge made a finding of fact that the Respondent Husband had caused physical injury to the Petitioner Wife “by such act which is known or ought to have been known would result in physical injury” within the meaning of the definition of “domestic violence”.
 
In awarding the Petitioner Wife a sum of RM4,000 as damages, the Judge agreed with the counsel for the Petitioner Wife that the quantum of compensation could be based on accident cases as “looking at it objectively there were injuries, and it doesn’t matter how it was caused either by motor vehicle accident or domestic violence”. The Judge however limited her award for compensation to those injuries that were substantiated by the medical check-up and report.
 
Significance of the case
 
This decision is remarkable in that it is the first time in nearly 20 years since the coming into force of the DVA that a victim of domestic violence has been awarded monetary compensation for personal injuries. It also appears that there had been no reported cases of applications being made under section 10 of the DVA for an award for damages until now.
 
Previous claims for damages for injury inflicted upon a petitioner (typically the wife) by the spouse had failed, given that they were made under the LRMDA (for instance, Sathia Vadivaloo v Magendran Vellasamy [2013] 1 LNS 429 and Lim Siaw Ying v Wong Seng & Anor [2009] 4 MLJ 409). The courts in those cases opined that there was no provision in the LRMDA granting them the power to award damages for such injuries.
 
Quantum of damages – a comparison
 
Similar to the DVA, the United Kingdom’s Protection from Harassment Act 1997 (“PHA”) also covers domestic abuse. In Singh v Bhakar [2007] 1 FLR 880, a wife sued her mother-in-law for harassment under the PHA, claiming that she had endured four months of near imprisonment and bullying by her mother-in-law which resulted in her suffering depression for many months. She was awarded damages of £35,000 (approximately RM225,000 based on the exchange rate in mid-December 2015).
 
It is notable that the judge in Singh v Bhakar felt that there were important differences between a domestic abuse case and an ordinary personal injury case. In accident claims, the compensation is almost entirely for the consequences of the accident rather than the trauma of the accident itself which usually lasts a very short time whilst in a domestic abuse case, compensation is for the abusive acts which could continue for a long period of time. In addition, the judge was of the view that it must be much worse to know that one is the target of deliberate and malevolent behaviour than to be injured as a result of carelessness. These factors are highly relevant and should be taken into account when a Malaysian court awards damages for domestic violence under section 10 of the DVA.
 
CONCLUSION
 
This unprecedented decision may encourage long-suffering spouses who have been victims of domestic violence by their respective spouses to seek compensation in Court. The outcome of such claims would of course depend on whether the victims are able to substantiate their claims by providing evidence, such as medical reports and police reports, of the injuries inflicted upon them.
 
EDITOR’S NOTE:

We understand that the Respondent Husband has filed an appeal against the Judge’s decision. It will be interesting to see whether the Court of Appeal will uphold the Judge’s decision, especially with regard to the award of damages for domestic violence.