James Healy-Pratt, Head of Aviation, speaks to The Mail on Sunday about his client’s ongoing battle for compensation following the loss of her husband and two-year-old daughter in the Air Asia QZ8501 crash.
The article covers the battle Mei Chi Man has gone through and features James commenting on the compensation process, outdated laws and varied compensation levels.
Mail on Sunday article follows:
Exclusive: ‘I lost my husband and our two-year-old in the AirAsia crash. Three years later, I am still battling for compensation’: Wife of only Briton in tragic accident, reveals her story
- Wife of the only Briton on board the AirAsia flight tells of her battle
- AirAsia flight QZ8501 had crashed into the Java sea, killing all 162 passengers
- Choi Chi Man was from Hull in Yorkshire and died in the plane crash
- His daughter two-year-old Zoe’s body was never found
- AirAsia boss and QPR chairman Tony Fernandes assured the victims’ families they would be looked after
Mei knew something was wrong when she didn’t hear from her husband Chi Man on the fateful morning of December 28th 2014.
The couple were always texting and phoning when apart.
Choi Chi Man, a British businessman originally from Hull, in Yorkshire, and their two-year-old daughter Zoe were flying from Indonesia to Singapore, to join Wee Mei-Yi and their five-year-old son, Luca, there.
Hours later Mei received confirmation of what she knew in her gut already: her husband and daughter were dead.
Happy family: Chi Man, Mei, Zoe and Luca in a family portrait taking shortly before the tragic event
AirAsia flight QZ8501 had crashed into the Java sea, killing all 162 passengers. Chi Man, the only Briton on board, and little Zoe were among them. Zoe’s body was never found.
‘There were days when I was just crying in bed. I didn’t even know how to be an individual, let alone a mother to Luca,’ says Mei.
Nearly three years later, with extraordinary strength and resilience, Mei and Luca are putting their lives back together.
But there is still a dark cloud hanging over them. Despite promises from the airline, they are yet to receive a penny of compensation.
Meeting with families of the deceased just days after the crash, AirAsia chief executive Tony Fernandes said: ‘The passengers were on my aircraft, and I have to take responsibility for that’.
Fernandes, an entrepreneur who is also the owner of football club QPR, promised to take care of the bereaved families and said that the company wouldn’t ‘run away from any of our obligations or hide behind any conventions’.
Many saw this as a reference to the Warsaw Convention, an archaic agreement that sets low limits on compensation for families of those lost in air crashes.
But Mei now feels that AirAsia is doing what Fernandes said it wouldn’t, and that his promises were empty, even though the flight was covered by insurance.
Most of the bereaved families have now received compensation after settling their claims with the airline. They were lower-income Chinese and Indonesian families, and according to one of their lawyers, were happy with the money they received.
Chi Man was a top executive in the power generation industry, and Mei believes she and Luca are not being offered a fair sum by the airline that reflects the effect losing her husband will have on the family financially.
‘It is obvious that money won’t bring my husband and daughter back,’ says Mei. But she says she hopes for compensation to ‘at least give Luca the education and foundation in life he could have had if my husband and daughter had come home that terrible day.’
She thinks that she and all of the families of the victims should receive compensation based on the economic loss they have suffered because their loved ones are no longer able to provide for them as they would have done.
Airlines are automatically insured in the event of crashes to the tune of many hundreds of millions of pounds and compensation is considered case by case, so families do not receive compensation payments at the expense of others.
Mei is now having to make a choice: either she gives up and accepts the sum AirAsia has offered, or she faces having to endure a court battle that her lawyers say could last eight to ten years.
It’s a far cry from the respect and consideration that AirAsia’s top management showed straight after the crash, and has made the experience even more painful and shocking to Mei.
‘Immediately after the crash, Tony Fernandes was with the families,’ says Mei.
‘He was very vocal about making sure all families were looked after and fairly compensated. He made deep and sincere promises to the families about this.’
Indeed, TV channels across the globe were filled with images of Fernandes touchingly supporting the families. He was admired for not shirking his responsibility and being human, rather than the face of a corporate organisation.
His humanity also mitigated the crash’s effect on AirAsia’s reputation. A crash such as this can end an airline, but despite an initial share price drop, AirAsia continues to thrive.
Things have improved a bit for Mei and Luca since those first dark days.
‘Luca is doing very well,’ says Mei. ‘He is competitive and sporty. And he has a wicked sense of humour – just like his daddy did.’
He still longs for his little sister Zoe – the ‘princess fireball’ as she was called at home. But Mei says: ‘The help and support of friends and family have taken us a long way. I have also sought professional help from a psychiatrist and counsellor for us both.’
She wants to avoid a protracted court battle, but knows they won’t be able to fully move forward until this issue is brought to a close.
‘I am exhausted – emotionally, psychologically,’ says Mei. ‘I’m doing everything possible now to resolve this because I want closure.
‘It is hard enough trying to heal from the grief that we have not asked for or done anything to deserve.’
The thorny issue of compensation
It is impossible to put a monetary value on someone’s life.
Who can put into pounds and pence the loss of a husband and father, a daughter and sister?
However, there are industry standards for calculating levels of compensation when someone loses a family member in a tragedy such as this.
The crudest of these is the 1929 Warsaw Convention, which caps the level of compensation at around $20,000 per life.
However, over 25 years ago the airline trade body, the International Air Transport Association (IATA) recognised and agreed that this level of compensation was archaic and irrelevant.
It and the world’s airlines agreed that caps on compensation for airline deaths had no place in the modern world, so they voluntarily lifted them. International aviation law then changed in recognition and abandoned caps on compensation in 1999.
James Healy-Pratt, a partner at the law firm Stewarts, who is representing Mei, as well as many of the other families of those who died in the crash, believes that Warsaw and indeed any cap on compensation is ‘outdated, backward and unfit for the 21st century’.
He says: ‘It was signed nearly 90 years ago when the League of Nations got the idea of a law that dealt with the new, growing airline industry. It was designed to ensure that airlines would not be bankrupted by unlimited damages in the case of an accident and to encourage investment in the airline business, which at the time was a risky one.
‘The cap was started at $10,000, back in 1929 when that bought something, then upped again to $20,000 in 1955 and by the late 1960s the airlines voluntarily raised it to $100,000 because they were aware it wasn’t right.
‘In the late 1980s and early 1990s it was acknowledged that there was no need to limit damages – flying is always safer statistically than driving to the airport. Also, the aviation insurance market in London had matured and profited from billions of pounds in insurance premiums.’
The majority of airlines in developed countries have since signed up to a new agreement – the Montreal Convention of 1999.
This states that an airline is liable if a passenger dies in an airline accident. It also says that there is no limit to the compensation that can be paid, and generally permits up to five places where the families of deceased passengers can bring legal action.
Indonesia, where AirAsia is based, is now among the countries that have signed up to this new agreement. But it only signed up this year, so the 2014 crash that ended 155 lives is not automatically covered.
If it were, Mei’s fight to receive a higher level of compensation would be much clearer.
Some insurers work out the economic loss caused by considering how much the victim was earning before they died and estimating their likely career progression. The lifetime earnings lost are then paid out to the victim’s dependents.
This is what Mei would like to happen.
‘Chi Man was an international executive, he was doing well and he worked hard,’ says Mei. ‘I have all the documentation to support that, which I have sent to AirAsia. I am not asking for a ridiculous amount of money, or a percentage share of Mr Fernandes’ net worth. I just want the industry benchmark.
‘I lost a husband and a daughter. No other family lost half of their family.’
How much do the crash victims’ families receive?
James Healy-Pratt says: ‘It is not unusual for victims’ families to receive wildly different levels of compensation in the case of airline tragedies.
‘This is because compensation is often based on economic losses, which vary considerably from person to person.’
Should it go to court, the amount paid out will also vary depending on the jurisdiction in which the case is heard. (See below).
Mei has received an informal offer from AirAsia, which she finds insulting and says her lawyers claim is ‘morally reprehensible’.
She says AirAsia has told her lawyers it will not put an offer in writing as it fears if she is not satisfied with it the sum will be leaked and will affect the families who have already settled, those who are in the process of settling at the moment, and other suits that are ongoing.
This is Money has decided for the reason above not to disclose the sum that Mei says she has been offered.
AirAsia refused to comment for this article. Allianz, the airline’s insurer, also declined to comment as the situation is ongoing.
A spokesperson for AirAsia Indonesia said: ‘Following the accident to flight 8501, AirAsia Indonesia have offered compensation to the families of all those onboard. Many have accepted the compensation. Madam Wee has elected to file legal proceedings. In view of the ongoing proceedings, it would be inappropriate for us to comment further at this time.’
So where from here?
Mei says that she has suggested mediation to AirAsia, but this is yet to happen.
Lawyers for AirAsia have also proposed via Mei’s lawyers that she state what she wants. But Mei feels such a move is futile while their starting position is so wildly different from what she believes is just.
Legal proceedings could cost AirAsia and its insurer Allianz much more than if an agreement was made.
Mary Schiavo, the former Inspector General of the United States Department of Transportation, who has dealt with some of the world’s biggest airline disasters, says that legal proceedings following crashes can drag on and on and in some cases can end up costing more than the payout to the families.
‘Airlines can spend years fighting. Airlines are often insured to around $1.5billion of insurance per aircraft per flight. For example, 16 years ago the planes that hit the World Trade Center and Pentagon just the flights alone each had $1.5billion of insurance, then more on top for other things. So in any given crash it’s not as if they don’t have the money to pay.
‘But airlines hand over to their insurer, who then farms it out to defence lawyers. Law firms who do the work bill by the hour and so have no incentive to end quickly.
‘I’m working on one case where there are 50 pre-file motions – the case file is 100,000 pages long.’
She adds that while it is up to insurers’ lawyers to come up with an agreement, the airline still has some power.
‘In the end it’s up to insurers’ lawyers to determine what to pay, but they have to then go back to the airline,’ she says.
‘If the airline is not happy with this amount, it could put down its own resources, but that wouldn’t be the insurer paying. If it wanted, once the insurer had reached a settlement, if did didn’t match whatever a CEO had promised, it could make up the difference.’
And what of Tony Fernandes?
Immediately following the crash, the kindness of Tony Fernandes gave Mei great hope, as she believed his sincerity, and she still does. In a letter to him, she said: ‘When we met shortly after the crash, your words of promise to take care of us, and warm attitude in such difficult and excruciating circumstances comforted my soul, and helped me find the strength I needed to face my son immediately thereafter’.
Mr Fernandes shared his email address and personal phone number with the families, he attended funerals, and said he took full responsibility.
However, things have broken down now with Mei in such a way that although perhaps he would like to – the compassionate person that he has shown himself to be – lawyers now advise him not to respond to her emails to him.
Healy-Pratt believes Allianz and AirAsia are ‘trying to get her to accept less compensation by hiding behind old laws’.
‘Tony Fernandes said that he wasn’t going to hide behind old aviation Conventions,’ he says. ‘But perhaps he forgot it isn’t his money, it belongs to Allianz in London,’ he says.
‘Fernandes is a rich man and could always pay the difference out of his own pocket, but has declined to do so. He has not even bothered to engage meaningfully with Mei.’
Is it always like this?
It is not always like this after an air crash. James Healy-Pratt represents the families of the British families on board the Malaysia Airlines planes MH17 and MH370, which crashed in 2014. He says they have all now reached confidential settlements ‘reasonably swiftly and fairly’.
However, some families’ experiences can be far worse.
Mary Schiavo says that often when something happens ‘the airline starts treating the passengers and their families as enemies even though the airline just killed them’.
‘People think that airlines think if they don’t take care of their passengers and their families they risk their reputation and no one will fly with them anymore.
‘But airlines know the market research, that when people are purchasing a ticket they have bad recall for these sorts of things.
‘They make a decision based on price and frequency of flight operation. Loyalty towards particular airlines is very small. The impact on the reputation of an airline lasts for a few days after an incident only. And airlines know that.’
She adds that when it goes to court, it can be a real ordeal for families.
‘Most people want to talk about their families; what they did together, what plans they had – all the things they wanted to do together gone in a second.
‘That bit is not the hard part. For most families it’s the wall of defence attorneys and delays.
‘Once in court there were 50 defense attorneys. You would ask a question and one after the after they would say ‘objection’ ‘objection’ ‘objection’ like bull frogs croaking in a swamp.’
‘Victims’ families in the UK receive £13,000 – in the US it can be £1million’
‘If you lived in the UK and were old or young and so didn’t have any financial dependents, your family would typically receive around £13,000 plus burial costs’, says James Healy-Pratt, a partner at the law firm Stewarts.
‘In America the same case would guarantee compensation of at least £1million, in bereavement and emotional damages for the family left behind, once a jury hears about the real emotional loss to parents and children.
‘In fact in the UK if the victim is a student – so is over the age of 18 and not earning – there would be no compensation for bereavement, just funeral costs.
‘The British are very Victorian when it comes to compensation and fatalities. It’s part of the culture of a stiff upper lip – that if you lose someone you grin and bear it.
‘In Ireland, France, Spain, you would get much more than in the UK.’
Mary Schiavo says that payments can be much higher in the US. It is not only loss of earnings, but the emotional and social impact of losing a loved one that is considered.
‘If you have two 55 year old men on a plane, one is Malaysian, the other an American business person, the Malaysian family could get zero while the American millionaire’s in the region of $5-10million. It’s not fair at all.’
This article first appeared in the Mail on Sunday. The original can be viewed here.
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