KUALA LUMPUR – Some lawyers believe that any compensation paid by Prasarana Malaysia Bhd to the 213 victims of Monday’s accident on the Kelana Jaya Light Rail Transit Line near the KLCC station should not come with conditions to prevent future suits.
Prasarana chairman Datuk Seri Tajuddin Abdul Rahman has promised a RM1,000 compensation to all victims, as well as to foot their medical bills and provide living expenses within a reasonable amount for those affected.
However, prominent lawyer Mohamed Haniff Khatri Abdulla told The Vibes that the public transport operator must act with compassion on the payments, and not include conditions that bar victims from filing a suit against it in the future.
“It all depends on what the basis of Prasarana offering this is. If the compensation is on a compassionate basis and it is ex gratia, then they (the victims) can still sue.
“However, if Prasarana gives a condition that there will be no future suits, then they can’t sue.
“So, it is important for the victims to obtain legal advice. At this moment, what is honourable for Prasarana to do is avoid anything that can scuttle the legal rights of any party.
“If it offers payment to ease the burden of the families, but at the same time, sneaks in conditions to avoid suits, it isn’t right, morally.”
Senior lawyer Jennifer Thomas said the situation is far more complicated than simply paying for victims’ medical and hospitalisation expenses or loss of income.
There are other issues one must look into, and the victims have the right to file a suit against Prasarana should it be necessary, she said.
“Apart from medical bills and loss of income, there are other factors involved, too, such as pain and suffering. There are damages to be assessed on this, and whether Prasarana is going to compensate for their pain and suffering.
“Some victims will have to go in and out of hospital for follow-ups. Is (Prasarana) going to cover their transportation costs?
“Some people will need to go to the pharmacy for follow-up medication. Will Prasarana cover post-medical bills?
“Things are not as straightforward as that. Some who are seriously injured may not be able to go back to work immediately.
“What about the loss of enjoyment of life? What Prasarana is offering now is the payment of specific damages – hospital bills and living expenses.”
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Proof of negligence
Similarly, litigation and dispute resolution consultant Datuk Seri Rajan Navaratnam said the victims are still entitled to damages apart from medical bills and loss of income.
“Medical bills are only one part of it, (constituting) special damages. The courts can still grant general damages. We also need to consider the likelihood of future medical expenses, depending on the nature of the injuries.
“So, those who are not happy with the compensation are still entitled to file suits.”
However, he said, even though the victims can sue for negligence, they must still prove that the train operator or owner had breached their duty via negligent act or acts resulting in harm to the passengers.
The victims must be able to prove what caused their injuries by virtue of negligence, he said, and the “pivotal primary question” is whether the accident resulted from want of care, or negligence by Prasarana.
“Sometimes, a prima facie inference of negligence can be made from the circumstances of the accident.”
Both Haniff Khatri and Rajan agreed that police can investigate the case not only based on the Land Public Transport Act 2010, but also under the Penal Code for criminal negligence, as long as a police report is lodged or a complaint filed with the relevant authorities such as the Transport Ministry.
The penalty for negligence under the Land Public Transport Act could see the guilty party fined RM50,000, or jailed seven years, or both.
At the same time, both lawyers believe that before filing any suit, the victims should wait until the authorities’ preliminary investigation into the accident is completed.
They said filing a suit now would be premature, but Haniff Khatri added that the victims should still obtain legal advice as to their standing regarding the case.
Jennifer, on the other hand, argued that there is no need for the victims to wait for the investigation to be completed, citing the Malaysia Airlines Flight MH370 tragedy, in which families of the victims who disappeared with the plane in 2014 filed a suit over the loss of their loved ones.
“It’s something called rep ipsa loquitor. It means, in principle, that the mere occurrence of some types of accidents is sufficient to imply negligence.
“So, this incident speaks for itself. It was an accident, and there were injuries.
“You don’t have to prove a lot... No matter the outcome of the investigation, (Prasarana) is still responsible for the injuries.” – The Vibes, May 26, 2021
