Three months after the shooting down of a civilian airliner over eastern Ukraine, the families of the 298 victims face a complex and lengthy journey towards compensation.
One leading law firm specialising in aviation accidents is pushing the Australian government to join with other nations who lost citizens to fight for reparations.
Joseph Wheeler, senior solicitor with Shine Lawyers, said it was possible families could receive as much as $10m each if those to blame for the missile attack on MH17 took responsibility.
Tony Abbott has blamed Russia for the disaster, and has pledged to “shirtfront” Vladimir Putin over the issue when the Australian prime minister and Russian president meet at the G20 summit in Brisbane next month.
“I am going to be saying to Mr Putin Australians were murdered, they were murdered by Russian-backed rebels,” Abbott said on Monday.
Wheeler said the only way victims’ families would receive a semblance of justice was through government pressure, rather than fighting individually through the courts.
Wheeler, who has had contact with several Australian families and is representing one so far, says MH17 was not a usual accident where engine fault or pilot error was to blame.
The best comparison was Pan Am Flight 103 in 1988, which was destroyed by a terrorist bomb and crashed over Lockerbie in Scotland. It took 15 years for Libya to take responsibility and to pay each victim’s family US$10m.
“That level of money that corresponds to some achievement of justice for what’s actually happened and how it’s happened can only be achieved through the cooperation of international partners and governments,” said Wheeler, who is also the aviation spokesman for Australian Lawyers Alliance.
So far, the families of the 38 Australians who died have been offered US$5,000 as an ex-gratia payment by Malaysia Airlines, and US$50,000 as an interim payment which would form part of any final settlement.
Under the international aviation treaty known as the Montreal convention, families have two years to lodge a claim. They can seek up to about $180,000 without having to prove the airline was negligent.
But even to receive this amount, a claimant is limited by the laws of his or her country. In Australia, that is based on their financial dependence on the personal killed.
Wheeler said it was one of the inequities in the system and meant that “the family of a young child won’t have a significant claim because they don’t typically have financially dependents – it’s the same with the elderly”.
“When someone’s died, their dependents have a claim for the value of how much they were financially depending [on them] and how much support they’ve lost from the breadwinner or whoever the deceased was.”
The rules also meant that families could receive vastly different amounts depending on their nationality. The US had the most generous system, he said, where pre-death pain and suffering could be included in compensation. That was not available for Australian claimants.
Claims for loss of future financial support in Malaysia were limited by “a very draconian formula” compared with Australia’s.
Wheeler said that it was possible that the airline would make more reasonable offers to the victims’ families beyond the $180,000, which was “grossly inadequate”, given the crash’s circumstances.
If families could prove that Malaysia Airlines was negligent in flying over Ukrainian airspace, it would face hugely increased payouts. There were no official warnings prohibiting commercial planes from flying over Ukraine, but several airlines including Qantas had diverted their planes from the area due to ongoing fighting in the area.
The shooting down of the aircraft was a breach of international law and Wheeler said it was essential that governments took up that battle rather than leave it to families. Punitive damages were justified, he said.
“[It] would need to be pursued by one country against another country using the available international aviation legal mechanisms available – these are arbitration or adjudication by the International Civil Aviation Organisation council and if that fails a case in the international court of justice.
“The result would be an order for reparations – in this case this would be equal to the moral and legal compensation each family should be entitled to for the loss of their loved ones. Such an amount would be higher than the amount available from Malaysia Airlines under the more restrictive Montreal convention.”
Investigations into MH17 are continuing, with Ukraine and the west blaming Russian-backed rebels for firing a missile at the civilian aircraft. To date, Russia has denied any responsibility for the crash and any court action against it would take years.
Wheeler said diplomatic pressure was the most promising route. Shine Lawyers is working with counterparts in Scotland and the Netherlands to propose that governments who lost citizens establish an “international compensation fund” to pay reparation to families.
Those governments would then work together to put pressure on those responsible for the disaster to shoulder the financial burden.
This would mean victims’ families need not wait years or decades to be compensated.
He said the idea “had never been tried before”, but would be pursued if families were interested. A formal proposal was likely to be put to the Australian government within three months.
