KUALA LUMPUR, March 4 — Malaysia’s government does not owe a duty of care to the family members of passengers of the ill-fated Malaysia Airlines Flight MH370, a senior federal counsel said today.
Government lawyer Alice Loke Yee Ching said the three defendants she represented — the government, the Department of Civil Aviation, the Royal Malaysian Air Force — are seeking to strike out the lawsuit against them.
“The main ground for DCA and RMAF is that they do not owe a duty of care to the plaintiffs based on the circumstances in which MH370 was missing. The government is being sued as employer of DCA and RMAF, so it’s based on the same ground,” she told Malay Mail Online when contacted for comment on the case that was heard in chambers earlier today.
Loke explained that the three defendants believe they do not owe a duty of care to the passengers and the family members who had filed this lawsuit.
“We are saying we do not owe a duty of care based on the facts of the case,” the lawyer from the Attorney-General’s Chambers said.
She said the striking out bid was based on the facts of the case as claimed by the MH370 passengers’ kin, explaining that the facts in the latter’s statement of claim were insufficient to show there was a duty of care owed by the government.
“This is not decided on the merits, there’s no trial yet, so we are saying the way the case is stated against government, DCA and RMAF, it does not disclose a duty of care,” she said.
Lawyer Sangeet Kaur Deo, who represented the five family members of three MH370 passengers in this lawsuit, said her clients disagreed with the Attorney-General’s Chambers’ position.
“We are obviously taking the position that there’s a duty of care. It’s been pleaded, it’s been admitted to by the defendants anyway in their defence,” she told reporters here after the hearing in chambers over the striking out bid.
She highlighted that the Civil Aviation Act also provides for duty of care to ensure the safety of passengers and cargo of a flight.
Kuala Lumpur High Court judge Datuk Mohd Zaki Abdul Wahab has fixed March 30 to deliver his decision on whether to allow the striking out bid by Malaysia Airlines Berhad (MAB), the government of Malaysia, the DCA’s director-general and the RMAF’s commander.
MAB was previously reported saying that it was only formed about eight months after the March 8, 2014 flight, also arguing that a new law passed to allow for MAS to go into administration did not transfer the airline’s liability to MAB.
The airline operator at the time of the MH370 flight was named Malaysia Airlines System (MAS) and has since transferred its operations to MAB.
The airline did not file an application to strike out the suit against it for alleged negligence and breach of contract.
On August 28, 2015, five family members filed the suit to seek compensation over the loss of Tan Ah Meng and his wife Cindy Chuang Hsiu Ling aged 46 and 45, and their eldest son Tan Wei Chew aged 19.
The suit was filed by the couple’s two other children, then aged 15 and 13; Ah Meng’s parents Tan Hun Khong and Lai Chew Lai, then aged 84 and 82; and Hsiu Ling’s Taiwanese mother Chuang Hung Chien, then aged 75.
They are seeking a public apology, compensation for loss of support, general damages, aggravated and exemplary damages, costs, interest and other relief deemed fit by the court.
Sangeet said the court allowed an application to substitute Ah Meng’s brother Tan Peng Fatt in place of Tan Hun Khong, who had died before this case came up in court today.
Hsiu-Ling’s brother Chuang Ching-Chiang said today that he hopes the courts will keep the Malaysian government and the three others as part of the lawsuit.
He claimed that their removal at such an early stage would effectively deny the kin’s right to question and seek justice and exempt the four from being accountable for their actions or inactions in relation to MH370’s disappearance.
On January 29, 2015, Putrajaya declared Flight MH370 an accident under international aviation regulations, and all 239 people on board the flight were presumed dead.
