THE Penang Bar, at a forum on Oct 23, unanimously voted to set up a task force to oppose the proposed implementation of the no-fault liability scheme.

The primary concern of the Penang Bar is the interest of the public. In the scheme, the question of liability does not arise and, therefore, those who are at fault will also be rewarded, notwithstanding their careless driving.

The government has repeatedly stated that road accidents must be reduced and it does not pay to be rash on the road. But when a rider or driver knows that he can be compensated for his own negligence, where is the safety value to prevent an accident?

Even if the guilty party is charged in court for his rash and negligent driving, he will be compensated and from this compensation he can settle the court fine.

Since both parties will be compensated under the scheme, there will inevitably be a reduction in compensation to the innocent party which we estimate to be at least two-thirds less.

The question the public has to think about is why an innocent person must pay for the fault of the guilty party. This is against the rules of justice.

There is no doubt that courts are inundated with cases pertaining to personal injury claims. To solve this problem, the court can set up a special tribunal where the rules of evidence are relaxed and matters can be settled more easily as long as the insurers are made a party to the claim.

The government could look towards the Accident Claims Tribunal set up in India and other jurisdictions.

The other issue often raised is the high fees charged by lawyers acting for accident victims. A few years ago, the Bar Council sent a memorandum on the contingency fees rules to the Attorney-General proposing that the fees be legitimised and capped. However, no action has been taken.

How are the victims of accidents going to be compensated under the scheme? There has been no structure proposed as to what the entitlement will be, unlike the present court system where the victims get advice and know more or less how much compensation they can claim from the other party.

The law is that the victims who are innocent must be justly compensated not only for their injuries, pain and suffering but also for quantifiable loss such as income, nursing care, future operations, etc.

Even in New Zealand, where this no-fault liability scheme has been implemented, there has been a move to do away with it.

In Alberta, Canada, too, there has been a strong move against the implementation of this scheme.

Both these jurisdictions have welfare systems which take care of the victims, unlike in Malaysia.

The public must be also made aware that to fund not one but two or more victims in an accident, the premiums will have to go up and it is, therefore, the public who will suffer.

The public has to consider and ask this question: Why must we contribute to compensate the guilty party? The public must oppose this scheme as it will not help the innocent but rather the wrong-doer.

LALITHA MENON, Chairman of the Penang Bar, Penang

Source: NST – December 24, 2007