The answers that relatives of passengers on Malaysia Airlines Flight MH370 so desperately want could be revealed in court if they sue for emotional distress.

A lawyer claims that the Malaysian government has breached its obligations under international law in communicating over the crisis.

In addition, said Australian aviation lawyer Joseph Wheeler ( left ), the handling of the tragedy by the government and Malaysia Airlines (MAS) could open both to liability, with relatives of the passengers beginning to consider legal avenues beyond the issue of compensation.

“One of the only ways families may be able to get answers is by going to court, and using those forensic procedures to get them,” Wheeler told Malaysiakini .

“The official investigation report itself can’t be used in court, but there’s a lot of information surrounding that (document), which helps us to assemble our case - documents and other information that can be disclosed.”

Under international law - Annexe 13 of the Chicago Convention - the accident investigation report can only be used for the prevention of further accidents and not to apportion blame.

The International Civil Aviation Organisation’s (ICAO) policy on assistance to families of aircraft accident victims guarantees that families are provided with sufficient information in the event of an incident such as Flight MH370, Wheeler said.

Although it is not legally binding, he argued, the document forms part of customary international law and serves as a standard for the level of care that families should receive.

However, the Malaysian government has been “deficient” in how it has dealt with families of the 227 passengers on board, and had often withheld information or issued contradictory statements to families, Wheeler said.

He pointed to Prime Minister Najib Abdul Razak’s announcement on March 24 that the plane had “ended” in the southern Indian Ocean as an event that could contribute to a claim for emotional distress.

The text-message sent by MAS to relatives, informing them all 239 people on board the flight had perished, was “more than a little insensitive,” he noted.

“The trauma that they’ve suffered these last few weeks, and the information that has trickled out from the government, all could combine in a way that causes psychiatric damage.”

Breach of policies?

Families could potentially bring a lawsuit for “nervous shock” - psychiatric illness or injury inflicted by intentional or negligent acts or omissions of those in charge of the investigation and search.

“Those sort of things would serve as liability in a nervous shock claim.

“The government is bound by family assistance policies from ICAO and we’ve argued that some of that wasn’t compiled with properly, and breach of that may have resulted in psychiatric damage to some family members, particularly how they learnt their loved ones had passed and the aircraft had ended up in the ocean.

“I think history will show some sort of syndrome or something coming out of MH370 that is just unprecedented,” Wheeler said.

MAS’ claim that it had done everything possible to contact family members in person or on the phone, and was forced to resort to sending text messages in some cases was not “fully factually true for all cases, at least some of the ones we have had exposure to”, he said.

Other opportunities to notify families were not taken, he said, declining to elaborate on the details on how MAS’ claim is untrue. He cited client-counsel confidentiality

The government had also failed to establish a family association to enable relatives to support one another, as the ICAO policy provides.

This is especially important, considering the broad range of people on board the flight, many of whom were not from Malaysia or China, where briefings for families were held regularly, Wheeler added.

AIMEE GULLIVER is a New Zealand journalist interning with Malaysiakini for six weeks, courtesy of the Asia New Zealand Foundation.