The Fallacy of Consistency in Assessing Permanent Future Loss in a Personal Injury Claim: The Malaysian Practice Dilemma

Husaini, Mohd Fuad

doi:10.6007/ijarbss/v9-i7/6163

Cited by 2 publications

(10 citation statements)

References 2 publications

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“…This inconsistency of methodology would affect the credibility of the judgment; if the same case is presented before a different court, it can produce a different outcome. This credibility of judgment is not caused by an error of judgement but is rather endorsed by precedents (Husaini, 2019).…”

Section: Criticism Of the Methodologymentioning

confidence: 95%

“…If the medical experts only prescribed a specific shortened duration for the nursing care or medical requirement, the problem of assessing the multiplier would be eased as the specified duration would be used as the multiplier figure; without the need to consider the full lifespan multiplier (Husaini, 2019).…”

Section: Methodsmentioning

confidence: 99%

“…The Court iterates that any of the approaches may be used to determine the multiplier in the assessment of permanent future nursing care or future medical expenses. With due respect, the Court in Bujang Mat should have taken the opportunity to adopt the best-reasoned approach on the issue once and for all when it realised the ambiguity of having a multitude of approaches in calculating permanent future nursing care/ medical expenses (Husaini, 2019).…”

Section: Inconsistent Methodologymentioning

confidence: 99%

“…Future losses and expenses which are excluded from the purview of the Civil Law Act, 1956 statutory provisions, included continuing permanent nursing care costs, medical costs, medication expenses and other permanent continuing requirements pertaining to the life and health of the permanently disabled claimant (Husaini, 2019). A claim for nursing care occurs when the claimant becomes permanently disabled due to the tort and thus requires continuing services to be rendered to him in attending to his daily needs (Kandiah, 1996).…”

Section: Predicting Future Lossesmentioning

confidence: 99%

“…Though many authorities seem to deviate from the precedent, it should remain binding for all courts below. However, it is proposed that permanent future nursing care or permanent future medical expenses and the calculation thereof would be timely included in the statutory provision, as an independent section, similar to section 7 and section 28A(2)(d) of the Civil Law Act, 1956, rather than mere back riding a provision which it was not meant to be (Husaini, 2019). However, all the methods of assessment are not without its fallacies as none of the approaches could meet the actual tort compensation of 100% damages for the loss suffered in the maxim of restitutio in integrum (Husaini, 2019).…”

Section: A Pragmatic Proposalmentioning

confidence: 99%

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An Analysis of Inconsistent Methodology to Compute Permanent Future Nursing Care Costs in Personal Injury Claim

Husaini¹,

Salleh²

2021

JSSH

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Restitutio in integrum has been the underlying basis of assessment for damages under the corrective compensation scheme of the law of tort. This doctrine commands restoration of the claimant to the pre-existing condition prior to the commission of the tort. While this basis of assessment has no apparent problem in respect of pecuniary part of the claimable damages in a personal injury claim, however, from another side of the spectrum, there is an inconsistent methodology as to how to precisely calculate the ‘price’ of pain or even future loss. As a result, judicial activism plays its part in promoting its creativity of solution to the problem, leading to inconsistent methodology on this spectrum of damages that bears diverse output. The objective of this paper is to highlight the flaws of the inconsistent methodology for the assessment of permanent future nursing care. The method used for this research is by tracing the relevant authorities that use the various methods of computing the multiplier and analysing the outcome of each method. The findings revealed anomalies of output as each method produces different output without any qualification on why a particular method is chosen. This flaw in the computation of the multiplier for future losses other than related to loss of earnings should not remain viable as there is no consistency of the output based on similar factual circumstances. One of the solutions for this debacle is to forgo lump sum payment altogether and move towards structured settlement payment.

show abstract

Section: Criticism Of the Methodologymentioning

confidence: 95%

Section: Methodsmentioning

confidence: 99%

Section: Inconsistent Methodologymentioning

confidence: 99%

Section: Predicting Future Lossesmentioning

confidence: 99%

Section: A Pragmatic Proposalmentioning

confidence: 99%

See 3 more Smart Citations

An Analysis of Inconsistent Methodology to Compute Permanent Future Nursing Care Costs in Personal Injury Claim

Husaini¹,

Salleh²

2021

JSSH

Self Cite

View full text Add to dashboard Cite

show abstract

National Law in the Era of Industrial Revolution 4.0

2021

JSSH

View full text Add to dashboard Cite

Restitutio in integrum has been the underlying basis of assessment for damages under the corrective compensation scheme of the law of tort. This doctrine commands restoration of the claimant to the pre-existing condition prior to the commission of the tort. While this basis of assessment has no apparent problem in respect of pecuniary part of the claimable damages in a personal injury claim, however, from another side of the spectrum, there is an inconsistent methodology as to how to precisely calculate the 'price' of pain or even future loss. As a result, judicial activism plays its part in promoting its creativity of solution to the problem, leading to inconsistent methodology on this spectrum of damages that bears diverse output. The objective of this paper is to highlight the flaws of the inconsistent methodology for the assessment of permanent future nursing care. The method used for this research is by tracing the relevant authorities that use the various methods of computing the multiplier and analysing the outcome of each method. The findings revealed anomalies of output as each method produces different output without any qualification on why a particular method is chosen. This flaw in the computation of the multiplier for future losses other than related to loss of earnings should not remain viable as there is no consistency of the output based on similar factual circumstances. One of the solutions for this debacle is to forgo lump sum payment altogether and move towards structured settlement payment.

show abstract

The Fallacy of Consistency in Assessing Permanent Future Loss in a Personal Injury Claim: The Malaysian Practice Dilemma

Cited by 2 publications

References 2 publications

An Analysis of Inconsistent Methodology to Compute Permanent Future Nursing Care Costs in Personal Injury Claim

An Analysis of Inconsistent Methodology to Compute Permanent Future Nursing Care Costs in Personal Injury Claim

National Law in the Era of Industrial Revolution 4.0

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