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

Mohd Fuad Husaini and Kamaliah Salleh

Pertanika Journal of Social Science and Humanities, Volume 29, Issue S2, December 2021

DOI: https://doi.org/10.47836/pjssh.29.s2.01

Keywords: Damages, future nursing care, personal injury

Published on: 17 May 2021

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.

ISSN 0128-7702

e-ISSN 2231-8534

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