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13 J.L. Pol'y & Globalization 1 (2013)

handle is hein.journals/jawpglob13 and id is 1 raw text is: Journal of Law, Policy and Globalization ww wiiste.or ISSN 2224-3240 (Paper) ISSN 2224-3259 (Online) ti1 Vol. 13, 2013 IISTE Adopting a No-fault Compensation Scheme for Motor Vehicle Accidents in Malaysia: A Myth or Reality? Naemah Amin'* Charles Nicholson 2 1. Department of Civil Law, Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia, PO.Box 10, 50728, Kuala Lumpur, Malaysia. 2. Faculty of Accountancy and Management, University Tunku Abdul Rahman, PO.Box 11384, 50744, Kuala Lumpur, Malaysia. * E-mail of the corresponding author: naemah iium.edu-my Abstract The present tort compensation scheme which has been widely adopted in common law jurisdictions to address the financial needs of injured victims has been found to be riddled with deficiencies. In focusing on negligence and causation as the foundation of liability, the adversarial system of the law has been strongly criticized as, failing to provide fitting and timely compensation, requiring injured claimants to go through difficult, stressful and long, drawn out litigation procedures coupled with significant legal fees and administrative costs. Concern over tort's effectiveness as an appropriate personal injury compensation mechanism for victims of motor vehicle accidents and the realization that the traditional tort system developed in the days of the horse and carriage was never contemplated to address contemporary issues facing accident victims, a number of common law jurisdictions have initiated significant departures from the system and have moved in the direction of adopting an alternative no-fault compensatory model where all persons injured in road accidents obtain compensation regardless of establishing fault thus shifting the focus on the needs of the injured victim rather than on one's culpability. These modem compensation schemes are premised on the philosophy of community responsibility, social justice and public benefit. This paper surveys the failings of current system of civil liability in the tort of negligence for motor vehicle accidents and undertakes a comparative analysis to evaluate the arguments in support of the introduction of such a scheme in Malaysia, its viability and challenges. Keywords: No-fault compensation, Motor accident, Negligence 1. Introduction The introduction of no-fault liability compensation schemes to cover industrial accidents in the nineteenth century has set the impetus for other aspects of the civil justice system to conduct studies on the viability of alternative compensation models for their respective scope of activity. The use of motor vehicles as an indispensable mode of modem day conveyance has had its impact on a corresponding surge in the number of road accidents. The common law tort mechanism was adopted in most common law jurisdiction to determine liability and assess damages to be awarded to the victims of such accidents. However, the practical experiences learnt from its operation over the years have seen the system being fraught with weaknesses producing financial hardships, emotional stress and grave injustices to the injured victims. Recognising its inappropriateness as a compensatory model for victims of motor vehicle accidents, mature common law jurisdictions like New Zealand, Australia and Canada have been prompted to initiate moves to abandon the traditional tort mechanism and in its place, design and implement an alternative remedial compensatory model. The outcome has resulted in a shift of resources away from a system founded on the notion of fault in the direction of introducing an alternative statutory based no-fault system which was viewed as a fairer compensation regime that will provide comprehensive level of benefits expeditiously and at reasonable costs to all injured victims regardless of fault. These modem compensation schemes have been premised on the philosophy of community responsibility, social justice and public benefit. This paper surveys the failings of current system of civil liability in the tort of negligence for motor vehicle accidents and undertakes a comparative analysis to evaluate the arguments in support of the introduction of such a scheme in Malaysia to address the growing concerns of injured victims. With social progress and change in societal values, individual and moral responsibility premised on the notion of fault was replaced with a contemporary system based on collective or community care and responsibility for the members of its society. Individual rights and freedom of choice was compromised for the greater good of the community. The paper concludes by looking at a scheme which guarantees comprehensive no-fault benefits to all injured persons while at the same time allowing qualified access to common law damages for those

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