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Sometimes there is no remedy
28/03/2006 The Star By BHAG SINGH
There are many daily events that can be a source of annoyance, disrupt the
daily life of a person, cause damage and loss of opportunity if not actual
direct pecuniary loss.
Yet, it is not always possible to obtain legal remedy. This is because what
is in law called a cause of action, does not exist or where it does, it may
not be practical to pursue one's legal rights.
This happens because it is either difficult to establish the cause of action
against a specific person or party or even if there is cause for action, the
effort required to pursue the case would not be worth it financially or
emotionally.
One reader complained that after he had attended an event in a five-star
hotel, he took more than an hour to get on to the main road which had been
blocked by traffic police because a rehearsal of some event was on. One can
understand the anguish of a person who finds himself in such a situation but
the difficulty arises as to who ought to be blamed for what happened.
Can one blame the hotel for not informing the guest that he must leave the
premises before a certain time if he did not wish to be stuck in a jam?
But then again the guest may have been in the hotel to visit a shop or some
other company situated in the building itself. Therefore, he may not have
had any contractual relationship with the hotel. In such a case, is the
omission to inform, the fault of the person who operates the office or the
shop which the individual went to visit?
But then, if this is so, the shop operator may say that he was not informed
by the hotel. Or it may be that both of them may say they were not aware of
the closure as they were not informed by the police.
If this is the case, the finger will then likely be pointed at the authority
that closed the road. Can such a government authority be held responsible?
Here again, the individual is faced with numerous difficulties.
The authority may say it had made announcements in different ways. However,
such announcements may not have reached everyone and some of these
announcements may have been lacking in specific details.
However, even when there has been a failure on the part of a government
officer, some immunity against legal action is enjoyed by the authority.
This is by virtue of the Government Proceedings Act 1956.
But even if these hurdles can be overcome, it is not easy for an individual
to be compensated satisfactorily though the party responsible for the
situation can be identified and is liable. The aggrieved party would have to
prove actual damages that have been suffered. Such damages must be direct
and proximate and have to be related to the Act.
Such difficulties arise not only when roads are closed in the busy parts of
the city. Another reader shared his experience whereby he was greatly
inconvenienced when he had to pick up a foreign guest whose aircraft was to
arrive at midnight. The reader rang up the airport officials to confirm the
arrival time and was told the flight was scheduled to arrive on time.
Three hours prior to arrival, he checked again and was told that the flight
was on time. However, half an hour later, the guest rang up from abroad to
inform his host that the flight had not yet taken off.
Some 20 minutes later, the guest again called up and informed the host that
the flight had been cancelled and that arrangements were being made to put
him on a different airline leaving several hours later.
But when the host sought confirmation from the local airport officials, he
was told that the flight was definitely on schedule. Therefore, to be on the
safe side, the host drove to the airport 15 minutes after the scheduled
arrival time and was told that the flight had actually been cancelled.
Whom does an ordinary individual in such a situation hold responsible – the
foreign airline or the local authorities in charge of conveying flight
information?
Is it possible that the foreign airline and flight authorities in the
foreign country did not convey the information? Or was the local authority
informed but the message was not conveyed to the relevant section ?
In this era of instant communications, it is difficult to understand how the
local authorities did not know that the flight had not even taken off.
So far as legal rights are concerned, who does the ordinary individual sue
and where?
Even though such a person may be able to identify who is responsible, it may
involve taking action against a foreign party in a foreign country or
confronting the issues that provide protection under the Government
Proceedings Act.
And again, even when and where such a person is able to overcome this, he
may succeed in proving liability but will in most cases, face the difficulty
of proving his actual loss .
This is not to discount the aspect that an individual does so at his own
cost both in terms of money and time.
It will therefore be seen that in many such cases where there is a
grievance, there may be no effective remedy for the individual.
These are areas where the government or its departments or corporate bodies,
out of their sense of corporate responsibility, must do whatever is
necessary to ensure that such matters do not occur and develop a mechanism
to make responsible those on whom the duty is entrusted and compensate the
aggrieved individual. This will be in line with the spirit of “caring
Malaysians”.
Of course, this is not to say that such poor service takes place all the
time in all departments and organisations.
The vast majority of workers are conscientious, efficient and competent. But
for the aggrieved person, this would hardly provide much consolation. |
