LawEddie.com

(This article is contributed by Barista)

I was surfing around and came across some interesting proposals reported by the Sun on the 15th of April 2010 about the proposed change for motor insurance claims in Malaysia. Among the interesting proposals include limited legal recourse, limiting claims to RM2.0 million and the setting up of an independent dispute arbitration body. The first thing on Barista’s mind was on the consequences of such changes. (Source : The Sun)

RM2.0 million limit to claims

A limit of RM2.0 million may appear to be sufficiently high for the majority. However, the question to be posed is, ‘How often do judges award damages for Pain and Suffering and Loss of Amenity (“PSLA”) for more than RM2.0 million in Malaysia?’. This is normally awarded in very deserving cases. The claim is normally made for medical expenses and other costs incurred as a result of the accident. This include the days where the victim was put off work or loss of future income due to a disability (claim for bodily injuries) caused due to the accident.

There may be circumstances where this limitation would give rise to injustice. As an example, Robert is 23. He is a very bright young man who had spent 6 years after his Fifth Form pursuing his dreams to become an Architect. He has just graduated with a Bachelor of Architecture and was excited to receive an invitation for his first interview as a graduate architect. However, he realised that he needed a suitable attire for the interview. Thereafter, he went to town. As he was crossing the road at a pedestrian crossing when the light was green, a car driven by a driver who was speeding and talking on the mobile phone was closing in on him. The car then hit Robert at such a speed that would leave him incapacitated.

He would have earned very well in his lifetime but for him being involved in a very serious road accident through no fault of his own which left him in a permanent vegetative state. He will require continuous medical care or treatment throughout the rest of his life. The cost of medical care may well go into the area of about RM200,000.00 a year. Considering inflation every year and increasing cost of medication, a successful claim of RM2.0 million will not even cover a full 10 years. Where will he then turn to as a result of this limit? If he is in his 20s, he will not be able to seek further medical assistance into his 40s. The disability may prevent him from working. Does this mean that despite the existence of compulsory motor insurance that was designed to protect other 3rd party road users, such as Robert, the new proposal will effectively discriminate against those whose cost of medical needs exceed RM2.0 million?

Robert lost more than just the cost of his medical needs. He could no longer work as an Architect due to his disability. The money spent by his parents for his education to be an architect was lost. He will not be able to claim the loss of his future income as he was not working at the time of accident (See Dirkje Pieternella Halma v. Mohd. Noor Baharom & Ors [1990] 1 CLJ 99 (Rep) and Section 28A(2) of the Civil Law Act 1956). Is this the direction that we want 3rd party motor insurance claims to head towards? We may not realise the consequences today but if we are to unfortunately be in the position of Robert in future, we will then question ourselves, why did we not question such a proposal in 2010 when it was proposed.

In Hungary, the limit is set at €4.5M (roughly about RM19.8 million) for personal injury and €1.8 million (roughly about RM7.9 million) for property damage. In the UK, there is a limit of £1.0 million (roughly about RM5.0 million) for damage caused to property. This is provided under Section 145 of the Road Traffic Act 1988 (UK). It should be noted that there appears not to be a limit in the UK for compensation for death or bodily injuries like the one proposed in Malaysia.

The statutory limit that is proposed by Bank Negara Malaysia at RM2.0 million generally is too low for compensation for death or bodily injuries. It may be justifed for property damage but as regards death or bodily injuries, the limit should be higher if not retain the current limit, which is unlimited.

Limited legal recourse and the setting up of an independent dispute arbitration body

The reasoning given for such a proposal is usually the issue of time spent through the civil litigation process being too long. Does this justify taking cases involving road traffic accident claims from the Courts and compel such cases to be tried in an arbitration? If this is the case, it would be best if we take every areas of dispute from the Courts. We should compel those involved in commercial disputes to go for Commercial Dispute Arbitration, property disputes to go for Property Dispute Arbitration, etc. At the end of the day, the civil litigation process will be very efficient.

Instead of proposing to set up a new body to hear such disputes due to complaints that the claim through courts is slow, a review on procedures to improve efficiency of the courts service would be a suitable approach. When there is a problem, it appears that people prefers evasion rather than addressing the problem directly. However, the problem with evasion is that they tend to create something new as an alternative (such as a new independent dispute arbitration body). Without the benefit of hindsight, this may lead to further problems in future (such as issues arising from the addition of Art. 121A of the Federal Constitution on a conflict of jurisdiction between Civil Law and Syariah Law and the amendment of Art. 121 of the Federal Constitution on the judicial powers of the Federation of Malaysia).

Conclusion

The limit on the amount that may be claimed for 3rd party motor claims should be increased for death and bodily injuries. Although a cap of Rm2.0 million would affect a minority of claimants, the injustice towards them are serious enough to justify a reconsidering of such a proposal. There should also not be an alternative dispute arbitration as cases in motor accidents are normally straightforward and capable of being settled through summary judgments. However, for the more complex cases, it should be left with the current civil litigation process and not by creating a new body without considering the reason why the current civil litigation process is too slow.

Update: 20.4.2010
Further to the post on 16th April 2010, there has been an official announcement by Bank Negara Malaysia as reported in The Star.

It was said that the “…proposed basic coverage would be provided by a company jointly owned by the Government and the industry, and the insurance companies and takaful operators would act as agents.”

The next question is, how do we calculate the percentage of ownership in this new company. Assuming that the Government will be taking a majority share, how do we calculate the remaining percentage of ownership? Who is considered or deemed to be in the industry? Are they represented by General Insurance Association of Malaysia, the National Insurance Association of Malaysia, etc? If more than one association or body exist to represent those in the industry, how do we calculate their share in the new company?

These are all preliminary questions and without the benefit of reading the full proposal, it is too early to be making assumptions on the new company.

However, my main concern is whether this proposal is proportionate to the Government’s policy in ensuring access for motorists to the mandatory Third Party Bodily Injury and Death insurance coverage? I agree that access is important and any proposal to ensure that the coverage is available to the masses should be encouraged. However, restructuring the entire motor insurance scheme may be an overkill.

Did you ever receive email with the following content?

“Please check before it is too late.

Hope the above can help for you. Just take note. ”

In response to the above email, a senior lawyer, Mr Tong Soo Tim, had kindly shared his view as stated below:

“I have read it and find that it represents an unbalanced view of the situation and it causes me concern.

This is my addition to the partial information in the article.

In theory there is such thing as Joint Tenancy versus Tenancy in Common. This is in English and Common Civil Law. If you actually ask most bank officers in Malaysia or even some lawyers in Malaysia, they wouldn’t be able to tell you what is Joint Tenancy or Tenancy in Common. This is because we don’t have exactly the same law as in England.

I know that some Malaysian banks have something called “Survivorship Clause“. This is more easily understood….to mean that if there is 2 or more names in a joint-account, the survivor (the one who didn’t die) gets to have all the money in the joint account.

I believe, though I have not checked with all the banks, that you can ask if they have this clause. It is a separate paper for both the account holders to sign when opening, or sometimes even after the account have been opened previously, in order to say that the account holders themselves, opt for this “Survivorship Clause”.

There are pro-and-con for Joint Tenancy and Tenancy in Common. While in the email below, it draws up a scenario where it may seem like a hardship for a wife (widow) not to have access to the bank accounts directly and immediately, but the fact is that, if the widow is to have all the money, sometimes there’s no guarantee the widow is actually the rightful person to have the money.

For example, 1. The deceased has parents, and children, besides the widow. The money should be shared between all of them. 2. The widow is only family…but they are separated, and pending divorce. The deceased may have done a Will to give his money to his brothers or sisters instead of his separated wife.

The freezing of account may be frustrating and problematic in some genuine cases…but to just allow widows or widowers to take out money from their joint-accounts may cause injustice in some cases.

Another scenario could be in the case of Joint accounts between a old parent and one of his 4 or 5 children. If the joint-account holder is allowed to just take out the money, it may be a temptation for the child not to honor his old parent’s instructions to share the money with all the children. This is actually a Breach of Trust. But if the money is already taken out, and there is a blanket policy of “Joint Tenancy”, then the other children have absolutely no cause in law to challenge the “joint-account holder child”.

Hope this helps to balance the article’s point a bit. Emotional approach is appealing, but it is sometimes not accurate nor even right. While we all wish for life to be more convenient, there are usually good reasons for legal processes…the law and lawyers are not here just to make life difficult ”

In order to show our appreciation to the support of our members and to allow eLawyer members meeting face to face, eLawyer would be having a New Year Dinner Gathering 2010 at Decanter Restaurant Section 17, Petaling Jaya!

It would be held on the 6th of February (Saturday) at 6:30PM.

Front view of Decanter Section 17

This dinner gathering would be a great chance to meet, and network with, new friends or catching up on old good times with your buddies.

Besides enjoying yummy Western food, notable guest and senior practitioner have been invited to share insightful thought which would be useful to many practitioners, the topics include “How Does Personality Determine Suitable Area of Practice?” & etc…

The ambiance of the restaurant: Cozy and homely

For those wanting fresh air, a comfortable environment awaits them

A sight to behold for the alcoholic-inclined !

One of the yummy foods that’s awaiting the guests at Decanter (All the foods are Halal)

If that are not good enough, all participants would be given an Ang Pow from Mr. Eddie Law personally in conjunction with the upcoming Chinese New Year!

In order to maximize the enjoyment of all our guests, invitations to this dinner would be kept to a maximum of 50 people. As such, registration is based on 1st come 1st serve basis.

A nominal registration fee of RM10 would be charged for every participant. The registration fee including foods (Halal) and drinks.

Therefore, please R.S.V.P by emailing your name, organisation, mobile number, occupation (e.g.lawyer or pupil in chamber or law student & etc) to donald@elawyer.com.my on or before 3^rd February 2010.

Kindly bank the resgistarion fee of RM10 to our account at 3147481600 (Public Bank) on or before 3^rd February 2010. Please keep the bank-in receipt to exchange for the entrance ticket at our reception on the event day.

Dress code: casual smart.

For for more information on this event, please contact Donald at 03-2782 5399 or 016234 1177.

The following are the maps and directions of the restaurant:

VERY SHORT, MOST EFFECTIVE AND HOW TRUE…

30 seconds Speech by Bryan Dyson (CEO of Coca Cola)

“Imagine life as a game in which you are juggling some five balls in the air. You name them – Work, Family, Health, Friends and Spirit and you’re keeping all of these in the Air.

You will soon understand that work is a rubber ball. If you drop it, it will bounce back.

But the other four Balls – Family, Health, Friends and Spirit – are made of glass. If you drop one of these; they will be irrevocably scuffed, marked, nicked, damaged or even shattered. They will never be the same. You must understand that and strive for it.”

WORK EFFICIENTLY DURING OFFICE HOURS AND LEAVE ON TIME. GIVE THE REQUIRED TIME TO YOUR FAMILY, FRIENDS & HAVE PROPER REST.

Being a Christian and lawyer myself, I was so excited when Joshua told me that there will be a “Malaysian Christain Lawyers Conference 2009″ held on 27 Nov 2009 at Gospel Hall, Petaling Jaya.

(from the left, Dato’ Dr Cyrus Das, Mr Lee Swee Seng, Mr Eric Cheah, Mr Lee Min Choon & Mr Yapp Hock Swee)

The conference went on well and received overwhelming response, in consideration, of the limited resources and publications for this conference.

There was more than 100 Christian lawyers attended the conference. Some participants were from East Malaysia, Korea and Australia.

I arrived before 9am in the morning. The conference started up with Praise & Worship led by Joanna Loi, followed by welcoming speech from Mr Yapp Hock Swee.

Mr Lee Swee Seng, a senior lawyer was sharing on the topic of “Mediation and Dispute Resolution in the Christian Context”.

The 2nd speaker is a lawyer from Penang, Mr Eric Cheah, who is helping the migrant workers in Malaysia, espacialy the Vietnamese workers. He shared on the topic of “Migrant Workers – Desperate for Lawyers”.

The last speaker is the well known litigation counsel, Dato’ Dr Cyrus Das. His topic was “Religious Liberty”. He was the counsel for the famous Lina Joy’s case.

After lunch, the participants was divided into 5 different groups to join the below workshops sessions:

1. How to Handle Religious Liberty Litigation? (by Mr. Steven Thiru)

2. Mediation & Reconciliation (by Mr Gregory Vijayendran)

3. Migrant Workers: Meeting Needs in a Wholistic Way (By Mr Eric Cheah)

4. using Your Role as a Lawyer for God (by Mr. Yapp Hock Swee)

5. Walking the Tightrope of Faith to True Success (by Mr Benjamin Dawson)

The organiser of the conference is associated to the Advocates International whose vision is “A worldwide fellowship of advocates bearing witness of Jesus Christ through the legal profession.”

Advocates International encourages advocates to put legs to Acts 1:8 and has reaches lawyers over 150 nations.

I am glad that I have attended this conference and through the workshops sessions I learnt about the practical manners that how a Malaysian Christian lawyer can do justice for the needy. This is a good platform to gather the Christian lawyers in Malaysia, so that in future it can mobilise the Christian lawyers to serve the needy in our society and bringing glory to our heavenly Father.

I pray that God will bless the leaders of this fellowship and am looking forward to the next fellowship.