KUALA LUMPUR, Sept 27 — The family of two spectators who were killed at a go-kart race organised by a local university can file civil suits against the event organisers for negligence, lawyers said.
Senior law practitioners also said that the incident may expose Universiti Teknologi Malaysia (UTM) — which had organised the Educational Innovation of Motorsports and Automotive (EIMARace) 2016 go-kart race in Kuantan, Pahang, on Sunday — to criminal charges, owing to possible recklessness.
“As far as civil liability is concerned, if UTM was the organiser and two were killed, then prima facie, there are strong grounds for civil suit against UTM for negligence at the very least,” lawyer N. Surendran told Malay Mail Online.
“Let’s put it this way, the issues speak for itself. If you organised the race and the vehicle in the race killed two people, you cannot then say you did everything to prevent it. You can’t just say the bystanders voluntarily exposed themselves to the risk. You still share the liabilities,” he added.
Surendran, who’s also a PKR lawmaker, said criminal charges could be filed against the public university too.
“It can attract criminal investigation. Similar to incidents at construction sites where object falls and kills someone, then subjecting the company to criminal investigation. Same case with UTM,” he said. “It’s difficult to argue that they are not responsible”.
A video of the accident, which killed 39-year-old Izwan Isa and his four-year-old daughter Nur Zulaikha, appeared to show that spectators were only separated from the track and racing go-karts by plastic dividers that flew away the instant these were hit by the go-kart that careened off the road and into the crowd.
Organisers had also asserted that the spectators were in a “prohibited” area.
New Straits Times Online quoted Sunday UTM vice chancellor Prof Datuk Dr Wahid Omar as insisting that water barriers and safety tape partitions were set up at the race in Indera Mahkota, while security personnel were also on hand.
Senior lawyer Datuk David Gurupatham said that while there’s a possible case for gross negligence, there are also certain justifications based on the reported facts of the incident to hold the race organisers criminally liable.
“Gross negligence. So, basically, there must be a duty of care and in this case the spectators were invitees, so UTM owes them a duty of care. Unlike in the UK, we don’t have an Occupiers Liability Act, but be that as it may, the common law position on negligence still applies,” David told Malay Mail Online when contacted.
“Now when you owe a duty of care, what comes after that is the concept of reasonableness. What would a reasonable organiser be expected to do under those circumstances?
“It would be reasonable to ensure that the circuit itself is reasonably done with proper safeguards. We all know motorsports is dangerous. In this instance, the question will really be whether those plastic barriers were reasonable under the circumstances,” he added.
David said if the plastic barriers weren’t filled with any substance to hold them down firmly, it would be tantamount to negligence.
“There appears to be a case on the civil side, but on the criminal side, there also happens to be a certain level of recklessness to justify for a criminal charge,” he said.
Despite UTM’s defence over its security arrangements, Izwan’s widow told Bernama that when the family arrived at the racing track, no barriers were in place and they had then “casually entered” the vicinity.
“There was a security guard but he merely told to move back but we were not restrained. He (security guard) only told us to move back a bit,” she told the national news agency when met at her home here yesterday.
Syahredzan Johan, another senior lawyer, said that though it is premature to conclude negligence on UTM, there are question marks regarding the safety arrangements of the racing event.
“The video seems to suggest that not enough safety precautions are taken to ensure the safety of the spectators. I would say that the authorities must open investigations into the matter. There is a possibility that the organisers may have committed an offence under Section 304A of the Penal Code, for causing death by negligence.
“The maximum sentence is imprisonment of up to two years, fine or both. At the same time, the family members of the deceased may also want to consider taking the organisers to court under the tort of negligence. This would be a civil suit,” he said when contacted.
The police are investigating the accident under Section 304A of the Penal Code that deals with deaths caused by negligence not amounting to culpable homicide, punishable with two years’ imprisonment.