Uncertainty over compensation

via CAAI

Thursday, 25 November 2010 22:23 James O’Toole and Buth Reaksmey Kongkea

AS the Kingdom observed a national day of mourning yesterday and funerals for victims of the Diamond Island stampede took place throughout the country, questions remained about how victims of Monday’s tragedy would be compensated for their suffering.

While the government has released preliminary findings of its investigation into the causes of the incident, Information Minister Khieu Kanharith said yesterday that the full inquiry, expected next week, could include further details about the liability for Monday’s disaster.

“We set up an investigative committee. We have to check everything first about the main cause, and who will be responsible,” Khieu Kanharith said. “You have technical studies and legal studies.”

The issue of legal liability is one for which precedent is thin in Cambodian jurisprudence, said Ray Leos, a lawyer and dean of the media and communications department at Pannasastra University.

“The issue of tort law here is very, very much in its infancy,” Leos said. “Tort claims are really very rare here.”

In instances where potential liability exists in criminal or civil cases, Leos noted, disputes are typically settled with out-of-court cash payments.

The government has offered families of victims charitable payments of 5 million riels (US$1,227), while the Royal Family has offered donations of $400 to families of the dead and $200 for the injured. Diamond Island developer Overseas Cambodian Investment Corporation has offered $1,000 to families of victims and $200 to the injured, payments that Diamond Island spokesman Charles Vann was quick to emphasise did not represent an admission of responsibility.

“We are not compensating,” Vann said. “We are just trying to help the community.”

Government officials have been offering payments to victims at City Hall and at local hospitals, where Diamond Island officials were also distributing donations.

Some families of victims, however, reported difficulty in securing the promised sums.

“I watched TV and saw that there were people giving money to the Diamond Island victims, but so far, my brother did not receive any money at all,” said Takeo province resident Seng Ung, whose brother was among those injured on Monday. “I don’t know how to get this money and I wonder where I can go to get it.”

Ung Samkhan, another Takeo resident whose brother was treated at Calmette Hospital following the stampede, said his family too had yet to receive any money.

“I am now waiting to see what the company will do about my brother’s injury and what other victims are going to do,” Ung Samkhan said. “I think I will sue this company for compensation if there are other people who agree to do this.”

A draft version of the Kingdom’s pending Civil Code, the law for the implementation of which was approved by the Council of Ministers earlier this month, includes provisions relating to negligence claims against both private and public officials. A 1988 decree on contracts and liabilities touches on the issue more briefly, stating that individuals or institutions shall be “liable in compensation… even where the damage is caused by involuntary acts such as carelessness or negligence”.

Sok Sam Oeun, director of the Cambodian Defenders Project, said it was possible that the developers of Diamond Island, or Koh Pich, could be held liable for Monday’s tragedy due to their “implied contract” with those patronising the site.

“Diamond Island, it is like a place for trade – they can get benefits from people going inside… so it is like a contact too,” Sok Sam Oeun said. “Koh Pich has responsibility to pay any compensation for any incident that happens by their negligence, if [a court] finds that they were negligent.”

Touch Samnang, project manager for the Diamond Island development, said his firm had lawyers and insurance in the event that it was faced with lawsuits from victims, though he called this an unlikely scenario.

“I think this was not our fault, and I do not expect that there will be any lawsuits against our company because we have paid money to the victims’ families,” he said.

The government said yesterday that 347 people had been killed in the stampede on Monday, with 395 injured. Khieu Kanharith and other officials have claimed that security and crowd control for the island were the responsibility of the developer, though Diamond Island project director Susi Tan said such responsibility fell to the government.

Sok Sam Oeun said his organisation was willing to offer assistance for victims hoping to pursue claims in relation to the incident, but added that it was unlikely that many such claims would be pursued successfully against either the firm or the government.

“I think that maybe they will [just] accept the money. I don’t think the people think they have a right to complain,” he said. “I think maybe not only the people, but the judge too – they will think that people must be responsible for themselves.”