Loss of earning capacity: Judicial discretion vs. the Civil Law Act 1956

The introduction of section 28A by the Civil Law (Amendment)Act 1984 (Act 602) on 1st October 1984 bring with it a married of issues pertaining to the award for loss of earning.While the section itself is simple enought to understand, the interpretation given to it by the judges is not similarly straight forward.The decision in Dirke Peiternella Halma v Mohd Noor bin Baharom & Ors [1990] 3 MLJ 103 and Tan Kim Chuan & Anor v Chandu Nair [1991] 1 MLJ 42 which dealt with the issue of the award for loss of earning capacity, raises the issue that the 1984 amendment had imposes several conditions to an otherwise an area reserved to the judges discretion.Where previously the judges have the discretion in awarding and assessing the award according to the principle of Common Law, these two Supreme Court cases held that the discretionary power of judges to award damages for loss of earning capacity to persons who are not earning at the time of accident was swipe away by section 28A (2)(c) of the Act.This paper attempt to address the question of whether the introduction of section 28A (2) has removed the discretionary power of judges in assessing the award for loss of future earning capacity by subjecting the award and the assessment of this head of damages to the same conditions and fixed multiplier as the award for loss of future earning

Basis of contract clause: Balance between law and ethics

Section 151 of Insurance Act 1996 is enacted among other to resolve the issue of information obtained by agent while filling in proposal from on behalf of the insured.This issue is of great consequence since failure of the proposer to disclose material fact in the proposal form would enable the insurer to avoid the policy all together.However, the current trend or practices of insurer in inserting the basis of contract clause at the end of proposal forms has made the application of Section 151 with regard to insured duty of disclosure obsolete.This clause converts all the answers in the proposal form into warranties.All questions poses in the proposal form automatically become material facts even though some may in actual fact be immaterial.The effect of such clause is twofold.On one hand it helps to eliminate the necessity of considering whether such information is material or not, and whether there is disclosure of that material facts.On the other hand, the clause also seems to remove the responsibility of the insurer or agent to make sure that all material information had been obtained and recorded properly.By virtue of this clause, even if the proposer (insured) provides correct information but the insurer or agent mistakenly, negligently or purposely writes something else in the proposal form, the insurer is entitled to avoid the policy on the ground of non disclosure of material facts.This article explores the co-relations between law, ethics and practice in the insurance industry since the doctrine of ubberimae fidei set a contract of insurance apart from other types of commercial contracts.Thus, although it is a profit motivated industry, the insurer should not have a carte-blanche authority to include unfair terms which may result in the insured being denied compensation

Damage for loss of future earning for foreign workers in Malaysia: A lesson to be learned from Singapore

True to the concept of justice and equality, the law on the assessment of damages for loss of future earnings in Malaysia do not differentiate between the classes of people claiming for compensation.Section 28A (2) of the Civil Law Act 1956 (Act 67)provide similar method of assessment for both Malaysian and foreign workers working in Malaysia.This paper discusses the possibility of over-compensating the foreign workers especially those coming from countries with lower income level than Malaysia.The study finds that the law in Malaysia leave no avenue for judges to adjust the assessment of damages for loss of future earnings to take into account the possibility that these workers will be returning to their home countries before the end of their working life and in all probability earning less than what they were receiving in Malaysia. Because of this rigidity in our law, the foreign workers will receive damages for loss of future earning in the amount which represent their income as if they would be earning the same income throughout their working life. Therefore it is hoped the proposal to amend the provisions regarding the assessment of damages for personal injury and fatal accident claims in the Civil Law Act 1956 currently being considered by the Law Revision and Law Reform Division of the Attorney General Chambers will take into account this phenomenon and formulate suitable method to prevent over-compensation

The Regulatory Framework Governing Traditional Arbitration in Resolving Islamic Banking Disputes in Malaysia: The Time for Change

Introduction to The Problem: Malaysia has established its place as a global leader in Islamic banking due to the considerable efforts made by the Malaysian lawmakers to enhance the Islamic banking dispute resolution framework and provide the Islamic banking disputants with several resolution mechanisms, such as traditional arbitration. However, using traditional arbitration in resolving Islamic banking disputes is not free from criticisms. Therefore, there is a need to find an alternative or enhanced form of traditional arbitration mechanism.Purpose/Objective Study: This article examines the regulatory framework governing traditional arbitration in resolving Islamic banking disputes in Malaysia.Design/Methodology/Approach: This article is based on doctrinal legal research Methodology. Primary data was secured from several sources, such as Acts, Laws, and Court Cases. While secondary data was collected from books, journal articles, and online databases. Both data are analyzed by using critical and analytical approaches.Findings: It is found that Arbitration Act 2005 (Act 646) and I-Arbitration Rules 2018 have been subjected to several amendments to align with the international norms and best practices. However, Malaysian lawmakers should start thinking out of the box by reinforcing the Islamic banking disputants with an effective resolution mechanism known as electronic arbitration (hereinafter referred to as “e-arbitration”). Doing so would facilitate prompt access to justice in Islamic banking disputes in Malaysia.Paper Type: Research Article

Domestic violence court: a new model to combat domestic violence against women in Malaysia

Domestic violence is a social epidemic in Malaysia.To combat this, the Domestic Violence Act 1994 and the Domestic Violence (Amendment) Act 2012 has set up a mechanism via the Malaysian criminal justice system to investigate reports, prosecute the perpetrators and protect the victims of domestic violence.Unfortunately, the mechanism has been viewed with disfavor by many.This paper attempts to critically appraise the effectiveness of the mechanism and subsequently propose an alternative method to better deal with domestic violence cases.Applying a descriptive and analytical approach in data analysis, the paper concluded that the mechanism currently being implemented in dealing with domestic violence cases is ineffective and ineffectual.Therefore a specialized court (instead of the current criminal court) which deals specifically with domestic violence is suggested

Preservation of Green Environment in Smart Home Project: Formulation of Sustainable Legal Framework

Smart home in Malaysia is still new.The installation of smart home gadgets and facilities is on the choice of the home proprietors themselves.There is no specific law and rules which governs the smart home project. The question arise is to what extend the law and policy in Malaysia can accommodate the development of smart home project which gives priority to preserve green environment.Therefore, the objective of the paper is to highlights amendments to the law and policy in ensuring the success of the smart home project and preservation of green environment. This paper is based on a legal doctrinal research and qualitative research. Mixed method was used in analysing the data.Legal doctrinal analysis was performed based on the statutory provisions of housing statutes, codes, and guidelines. Qualitative data were collected by way of interview with 13 experts in the area of smart home and green environment.It is suggested that the Government of Malaysia to recognise the environmental potential of smart features, to commission and support research in establishing a robust evidence base.Some amendments to the existing law and new policy of smart home and green technology should be established to support both agenda

Designing a Legal Framework of Green Environment in Smart Home Project

Smart home concept in Malaysia is still in the early stage. There is no comprehensive and specific law and rules which governs the smart home project. The installation of smart home gadgets and facilities is on the choice of the home proprietors themselves. The question arise is to what extend the law and policy in Malaysia can accommodate the development of smart home project which gives priority to preserve green environment. Therefore, the objective of the paper is to highlights amendments to the law and policy in ensuring the success of the smart home project and preservation of green environment. This paper is based on a legal doctrinal research and qualitative research. Mixed method was used in analysing the data. Legal doctrinal analysis was performed based on the statutory provisions of housing statutes, codes, and guidelines. Qualitative data were collected by way of interview with 13 experts of smart home and green environment. It is suggested that the Government of Malaysia to recognise the environmental potential of smart features, to commission and support research in establishing a robust evidence base. Some amendments to the existing law and new policy of smart home and green technology should be established to support both agenda

Assigning Legal Personhood To Smart Home In Malaysia: An Exploration

In a Smart House or Smart Home, products and services are capable of working together through a hybrid of network and functions without conscious human intervention. The absence of conscious intention, decision and action by a specific person therefore create legal problems especially in respect of determination of legal personhood. It is difficult to determine the right and liability involved when the act is a series of actions prompted by a network of intelligent appliances and applications. This article aims at analysing the possibility of attributing legal personhood status to Smart House or Smart Home in Malaysia. It is based on a legal doctrinal and qualitative research. Mixed methods were used in analysing the data. The legal doctrinal analysis was used to analyse the literature regarding the matter especially from jurisprudent point of view. Thematic analysis was used to analyse the data gathered from the interviews with 13 experts in the area of smart home. The experts are officers and professionals from different organization both in public and private sector. Having considered the issue, it is suggested that at the moment, attributing legal personality to Smart House or Smart Home in Malaysia similar to a person (full or quasi) or corporation is not possibl

Smart Home Assisted Living for Elderly: The Needs for Regulations

Assistive technology devices for elderly in smart home aims at providing support and healthcare services in a domestic home to ensure their health condition, safety and security . However, neither definition nor specific legal and administrative policy is in place to govern its establishment. Hence, a comprehensive smart home assisted living legal framework for elderly is required and this paper is intended to discuss the needs for amendments of law in housing development. This paper is a legal doctrinal research whereby analysis is conducted based on the statutory provisions of Malaysia housing statutes, codes, and guideline. The finding shows that, the absence of smart home for elderly components and infrastructure in the Housing Sales and Purchase Agreement will deny residents‘ right from protection by the housing developer. Therefore, amendment and improvement in law and regulations to include terms of smart home for elderly is needed to ensure its development is in accordance to the law