PETALING JAYA: If human interference in nature's ecosystem is determined to have led to the Batang Kali landslide disaster, survivors would have a clear case for a claim of death by negligence against the persons involved, says a lawyer.
Derek Fernandez, who is also a Petaling Jaya City councillor, said, however, that if it was ascertained that the disaster was an "act of God", it would be more difficult to succeed in the claims.
The "act of God" legal term refers to any events outside human control, such as a natural disaster.
However, the cause of the Batang Kali landslide must first be established before survivors could pursue legal action, he added.
"We need to first ascertain the cause of the landslide and get the official reports.
"The preliminary report suggests there was an underground flow of water and because of the increase in rainfall, it could be possible that the increase in water saturation of the soil caused earth movements resulting in a landslide.
"If human action such as developments in the surrounding area was involved in changing or disrupting the flow of water, then certainly there would be a very clear case for a claim of death by negligence against the persons involved.
"Now if the water flow has not been changed or disrupted by human actions, and the landslip disaster was an act of God, then it would be more difficult for the people to be able to claim," he said in an interview.
Fernandez cited previous deadly landslide disasters such as the Highland Towers and Bukit Antarabangsa, which had been due to development projects.
He also pointed out the issue of the landslide site Father's Organic Farm not being licensed to carry out camping activities.
For the survivors to take legal action against the farm for negligence, the survivors would need to establish a duty of care and failure to take reasonable care.
"But in order to do that you must establish the actual cause of the disaster.
"The first step for any legal action is you must get the report and cause," he said.
Fernandez, who is also an expert in planning and environmental laws, added that the government must impose a mandatory hydrological impact assessment report on all hillside developments including all urban development in flood-prone areas.
Hydrologists must be engaged and it was important to map out the water flow as water was now becoming the single biggest issue, whether it was related to flooding or landslides, he said.
"All the water flows must be mapped and the effects of the surrounding development or increased rainfall on the water flow must be determined.
"The government must make it mandatory for a hydrological impact assessment and hydrological report to be submitted as any document in planning and development control for any hillside developments and where there are mixed gradients above 20°," he said.
General Insurance Association of Malaysia (PIAM) chairman Antony Lee said for general insurance, if the deceased had a personal accident insurance policy, which is generally extended to cover accidental death caused by natural disaster, the next of kin or nominee might submit a claim to the insurer.
However, they were advised to check with their respective insurers to confirm the coverage and or exclusions, he said when contacted.
"Meanwhile for motor vehicles, natural disasters are covered under the Special Perils extension.
"If a motor vehicle owner or policyholder has purchased the Special Perils extension, he or she would be able to submit a claim to the insurer," said Lee.
As for the Personal Assurance policy, it would depend on the types of coverage purchased.
For policyholders who are injured due to the landslide incident, subject to their policy coverage and nature of their injuries, they may claim permanent disablement, temporary total disablement, temporary partial disablement, medical expenses, hospitalisation income, and more.
"If policyholders encounter any problems, they may contact their respective insurers or PIAM for further assistance," added Lee.
