COMPENSATION
Compensation for the victims of the MV Barima is already being discussed and figures are being mentioned. In principle, persons who are injured or suffer loss of life or property by the wrongful act of another, who has a duty to take care, is legally entitled to compensation. Many factors are required to be taken into account in calculating the amount of compensation. For example, a person who loses a cycle is not entitled to the same as a person who loses car. While no amount can compensate for the loss of a life, legal principles have emerged that allow a working person aged 40 to be awarded more than a person in comparable employment aged 60. A wide variety of circumstances are taken into consideration. Thus, a non-working person may have his/her potential earnings from employment taken into consideration. A housewife may have her domestic work valued. Therefore, a fixed sum for everyone may be fair to some, may overcompensate some and may undercompensate others.
The Government is clearly going to contest liability and is prepared pay compensation to the victims. If it can be agreed by all parties involved, mainly the victims, on a particular sum or sums for loss of property, for pain and suffering and for those who lost as a result of the death of a family member, that would enable rapid satisfaction of all claims. However, I hardly see how this can be fair. An alternative proposition is that the Government may engage with a committee elected by the victims and their relatives to pay for its legal advisers and negotiate an advance, minimum, sum for each category of loss to each victim or family member pending the final determination for each victim of family member. Courts in the UK allow for payment of advance sums. The final sum can be determined by agreement, arbitration or litigation. Arbitration and litigation would result in tedious, interminable hearings which would reintroduce the trauma of the event.
For loss of property, the assessment would not be a difficult task. Pain and suffering is a more difficult proposition. Unless there is physical injury, compensation for which can be assessed based on past precedent, which is the legal way, the trauma of the event would only result in nervous shock, severe and devastating though it would be. Under the legal principle to which we adhere, compensation is not normally awarded for nervous shock, although in recent decades exceptions to the principle have been made. In this case it can be hardly argued that a victim who is in a situation where he/she is in the water for hours fearful of drowning, would not be entitled to claim nervous shock and other trauma emerging from such suffering. Of course, no one expects that the Government would invoke any legal argument that would seek to defeat such a claim.
Compensation for wrongful death is calculated under two Acts, namely, the Accidental Deaths and Workmen’s Compensation Act (“Accidental Deaths”) and the Law Reform (Miscellaneous Provisions) Act (“Law Reform”). A claim for such compensation is brought under both Acts. Under Accidental Deaths, the court would assess damages due to dependents of the deceased that he/she gave to them for their maintenance for a specific period, say, a year. This annual figure is multiplied by a figure that is calculated based on the age of the deceased and reduced by taking into account contingencies such as illness, injury or an early death. There are precedents of these figures which can be drawn on. Under Law Reform, the court would calculate the amount that would remain for the estate of the deceased after the deceased deducted an amount for his own maintenance. The court would them proceed to award the higher sum.
It is hardly likely that the Government would want the issue of compensation to reach the courts. It is also equally likely that fair compensation cannot be determined without assessing the loss in each individual case. A potentially acceptable route to avoid court would be as follows: (a) the Government agree to a fixed sum for pain and suffering (physical injuries and/or nervous shock); (b) ascertain facts relating to claims by each person; (c) calculate the damages to which the person is entitled by a group of lawyers under Accidental Deaths and Law Reform; (d) offer the sum to the claimant; (e) if the claimant disagrees refer the claim to a pre-determined group of three lawyers whose independence is unquestioned; (f) if the claimant rejects the sum by the three lawyers he/she is free to take the matter to court. The above is not written in stone. It may be modified in any way to make it even fairer or speedier. But unless some mechanism is devised which combines speed, fairness and adequacy and a potential for speedy finality, the issue of compensation may drag on interminably.
