Dr. Weerasooria’s new book a unique contribution to legal literature
Wednesday, 31 July 2013 00:00
By Dr. Dayanath Jayasuriya, PC
On 25 July 2013, at a function held at the Institute of Policy Studies, Dr. Wickrema Weerasooria launched his latest book on the ‘Law Governing Insurance Negligence Damages and Third Party Motor Claims.
The Chief Guest on the occasion was Dr. P.B. Jayasundera and the Guests of Honour were Indrani Sugathadasa, Chairperson of the Insurance Board (IBSL), Chandri Gunwardhana, Director General of IBSL, Professor Uditha Liyanage, Director PIM, and Prakash Schaffter, President of the Sri Lanka Insurance Association.
For many decades Dr. Weerasooria has been the leading academic writer on texts on banking law both here as well as in Australia. In more recent times he has ventured into other areas of writing such as a treatise on Buddhist Ecclesiastical Law.
Wide and varied career
Wickrema has a wide and varied career, impressive in all aspects. He secured a first class in law from the University of Ceylon and passed out with a first class from the Ceylon Law College before proceeding to the UK where he earned a Ph.D. from the highly-ranked London School of Economics for a study on banking law under the supervision of Lord Chorley, a highly respected banking law expert of England.
Besides practising as a lawyer, Wickrema has served as Secretary of the Ministry of Plan Implementation under the former President J.R. Jayewardene. He was a co-chair of the Inter-Ministerial Committee of Development Secretaries which became a powerful tool to monitor progress on a regular and systematic basis. With his departure to Australia to be “our man” in Canberra, it is said that the Ministry of Plan Implementation lost its momentum.
Dr. Wickrema Weerasooria was no stranger to Australia because he headed the Banking Law Centre at Monash University where he held a professorial position and produced a textbook on Australian banking law which continues to be the standard work still prescribed by Australian universities. I believe it is now in its sixth edition and is published as Weerasooria’s Banking Law and edited by others, a rare distinction for an academic writer.
Insurance law has a long history. Lloyd’s of London is located in close proximity to a coffee shop where the possibility of risk sharing and underwriting had been discussed possibly for the first time in a casual conversation among businessmen over a cup of coffee.
With the introduction of the Civil Law Ordinance of 1852, English law came to be applied in this country to marine, fire and insurance industry. Motor vehicles were imported into the country only in the early part of the 20th century and hence the legislation did not address motor vehicle insurance. Liability in motor traffic accident cases thus remains to be regulated under the Roman Dutch Law.
The evolution of Roman Dutch Law itself is a fascinating but complex subject. As a Visiting Professor of Mercantile Law at one of the leading South African universities I have had numerous stimulating discussions with colleagues and post-graduate students on the changing configuration of Roman Dutch Law and its potential to progressively to adapt itself to changing circumstances in Sri Lanka and in South Africa itself.
Complex issues presented in simplest form
Dr. Weerasooria’s book under review runs into almost 800 pages. Its scope itself indicates the vast range of situations that need to be captured in a study of this nature and the complexity involved in each area. One of Wickrema’s greatest strengths as reflected in some 20 other books he has produced over a period of nearly 40 years is his remarkable ability to simplify complex issues and present them in the simplest form.
This is his hallmark and his new book is no exception to that despite the nature of the complex subject-matter which he has skilfully handled. In launching the book, Wickrema himself confessed that this was the toughest assignment he ever encountered in writing his books. Reading through the pages, one can easily realise the truth of his assertion. It becomes all the more creditable when one faces the challenge of producing a book with 47 chapters.
The publication of this book is timely. There has been exponential growth in vehicle imports as well as a dramatic increase in road accidents. The law abiding cautious driver driving at a modest speed is considered to be a ‘nuisance’ by bus drivers and some others who are testing their ability in posh cars to break the record of the fastest of Monte Carlo car race drivers.
The tragic victims and insurers have to grapple with complex legal issues based on ancient Roman law principles having as their origin the Lex Aquila (circa 287 B.C.); protracted legal proceedings; skyrocketing legal costs, not to mention certain unethical practices that plague society.
In the USA there is a group of lawyers who are known as ‘ambulance chasers’ – hearing the sound of a siren they will follow the ambulance to the hospital to get the proxy form signed by the victim and the hapless victim ultimately ends up with hardly anything. Fortunately this practice has not happened here, presumably for the reason that it may be quicker to take the victim in a three-wheeler than waiting for an ambulance to arrive on the scene.
Dr. Wickrema Weerasooria has outlined and discussed more than 250 reported cases from Sri Lanka on liability issues related to negligence (and several unreported cases are also described). Despite the importance of the subjects of negligence, damages and insurance claims in motor traffic cases, until the publication of this book there has been a dearth of publications on both insurance in general and liability, in particular.
The late Dr. A.R.B. Amerasinghe who served as the Chief Legal Officer of the Insurance Corporation before ending up as a Supreme Court Judge wrote an article in 1971 dealing with compensation of motor vehicle accident victims. During my stint in the Attorney General’s Department my colleague and I often relied on this article to settle insurance claims.
On insurance in general there have been a few books written by leading insurance practitioners such as Chandra Schaffter, Jeya Thangakone, Godwin Perera, Wimal Wickeramasinghe and Hydery Rehmanjee as well as a few articles by Sidantha Wijenaike and Dr. Saman Kelegama (tracing the evolution of the privatisation of the insurance industry)and others. Each publication has offered useful insights into different dimensions of this complex and technical area but it was finally left to Dr. Wickrema Weerasooria to take up the challenge to grapple with the most difficult and enigmatic of issues.
Motor traffic liability cases are decided more or less on the same basis as other cases dealing with negligence and damages and are governed by Roman Dutch law principles, though occasionally references are made to English law cases. Part IV of the Book containing almost 300 pages is titled ‘Delictual Liability, Negligence, Defences to Liability and Damages in Motor Accident Litigation’. The rest of the book deals with the regulatory framework, including the powers and functions of IBSL and relevant legislation and an analysis of reported and unreported cases, mostly from Sri Lanka but also from other jurisdictions, on negligence, damages and motor traffic accident litigation.
In a sense, this book is more like an encyclopaedia covering a vast area of the law relevant to legal practitioners in negligence cases and to the insurance industry. In his characteristic style, Dr. Weerasooria has managed to demystify many complex concepts and offer a theoretical and practical basis to understand the genesis of concepts and the socio-legal implications.
The need for the codification of our laws has been a matter that was underlined many times by the late Professor T. Nadaraja, under whom both Wickrema and I studied law at different periods in our careers. Wickrema has quite rightly addressed the issue of law reform and has drawn attention to the ‘no fault compensation schemes’ that operate in countries such as Australia and New Zealand. The Insurers Association as well as the Law Reform Commission should pursue the issue of law reform.
The book caters to many audiences. Obviously, every insurance company should ensure that their senior managers have a copy for permanent reference. Criminal and civil law practitioners will find it a useful source-book covering many areas and case law relevant to their daily work. In addition the book under review should find a place in every law library in our country. Judges will find this book extremely useful as a ‘Bench Book,’ on assessing negligence and damages in accident claims.
Dr. Wickrema Weerasooria has made a unique contribution to the legal literature of this country by producing a yet another impressive publication. More importantly, he serves the public by functioning as the Insurance Ombudsman – he has over the past eight years discharged his duties with distinction.
Claimants and insurance companies find in him a legal scholar with diplomatic skills and wit who expeditiously studies and evaluates the facts and the law with a sharp mind and offers solutions without fear or favour which are practical and reasonable to all the parties concerned. This is how justice has to be dispensed with in an ideal world.