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 The Honourable Attorney General had on 29 July 2007, proposed a No-Fault
Liability scheme ("the scheme") to replace the current mechanism in managing
personal injury claims and compensation.
The stated objectives of the Honourable Attorney General in proposing the
scheme, as we understand it, are as follows:
• The great number of accident cases.
• Large number of insurance cases pending in courts.
• The length of time taken for compensation to be meted out and received
by claimants.
The Malaysian Bar welcomes the Honourable Attorney General's initiative which
has in mind the best interest of victims of road accidents and their families.
Besides the almost immediate pain, suffering and grief experienced by the
victims and their families, the economic consequence of a road accident
reverberates for years to come.
Nonetheless, based on the information currently made available, the Bar must
express its serious reservations on the scheme, as currently conceived. We note
that there has been no in-depth study on the viability and relevance of such a
scheme in Malaysia, and neither has there been a detailed structure put forward.
More fundamentally, the scheme will also radically change the concept, notion
and definition of a "victim" of road accidents. As there is no concept of
"fault", victims of road accidents will now include the reckless, selfish and
dangerous drivers, the speed demons, the drunkards and the Mat Rempits. The
deterrent element currently inbuilt in the present system will be demolished.
Data and statistics gleaned from other jurisdictions that have the no fault
liability system, show that the rate of accidents increases on introduction of
such a scheme.
To this end the Bar is gravely perturbed that the introduction of the scheme is
likely to lead to a reduction of the amount of compensation to victims of road
accidents. The experience of SOCSO bears this out. It is envisaged that the
scheme will also lead to a limit of the current categories of compensation which
can be claimed by victims of road accidents. Thus, the scheme will result in the
innocent /blameless victim to be worse off compared to the current system.
The Bar is also concerned that the funding of the scheme, as currently proposed,
will come from insurance companies. It must be noted that for the past several
years, insurers through PIAM have tirelessly lobbied Bank Negara to change the
premium structure in motor insurance which will lead to an increase in premiums
for the majority of vehicle owners in the country. Bank Negara has consistently
rejected such requests. (It is likely that the introduction of the scheme
will lead to an increase in motor insurance premiums which will further burden
the majority of Malaysians.)
To address the issues highlighted above and with a view to improving the current
system, the Bar has presented a detailed memorandum to the Honourable Attorney
General that provides for an alternative mechanism, spearheaded by the Kuala
Lumpur Bar Committee with the judiciary, which would address all of the
weaknesses of the current system.
Whilst the system of bringing personal injury cases to Court for determination
is not without problems, the justice afforded to victims of road accidents (as
the term "victim" is currently understood) in terms of compensation far
outweighs the perceived delay factor. The initiative undertaken by the judiciary
and the Kuala Lumpur Bar Committee in spearheading a revamp to expedite the
conclusion of personal injury cases within the current system should be given a
chance to prove its worth.
Ambiga Sreenevasan
President
Malaysian Bar
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Circular No 304/2008 : Invitation - HR Debate 2008
