Datuk Seri khalid bin abu bakar & ors v N indra a/p p Nallathamby (the administrator of the estate and dependant of kugan a/l Ananthan, deceased) and another appeal [2015] 1 mlj 353
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Case Review Tort 1
![DATUK SERI KHALID BIN ABU BAKAR
& ORS
V
N INDRA A/P P NALLATHAMBY
(THE ADMINISTRATOR OF THE ESTATE AND
DEPENDANT OF KUGAN A/L ANANTHAN,
DECEASED) AND ANOTHER APPEAL
[2015] 1 MLJ 353
Prepared and presented by:
Muhammad Zaim Nur Bin Zaini 1813491
1](https://image.slidesharecdn.com/slidecasereview-181204020230/85/Datuk-Seri-khalid-bin-abu-bakar-ors-v-N-indra-a-p-p-Nallathamby-the-administrator-of-the-estate-and-dependant-of-kugan-a-l-Ananthan-deceased-and-another-appeal-2015-1-mlj-353-1-320.jpg)
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Datuk Seri khalid bin abu bakar & ors v N indra a/p p Nallathamby (the administrator of the estate and dependant of kugan a/l Ananthan, deceased) and another appeal [2015] 1 mlj 353
- 1. DATUK SERI KHALID BIN ABU BAKAR & ORS V N INDRA A/P P NALLATHAMBY (THE ADMINISTRATOR OF THE ESTATE AND DEPENDANT OF KUGAN A/L ANANTHAN, DECEASED) AND ANOTHER APPEAL [2015] 1 MLJ 353 Prepared and presented by: Muhammad Zaim Nur Bin Zaini 1813491 1
- 2. FACTS OF THE CASE 1) Kugan a/l Ananthan was arrested in respect of a theft offence and detained at the Taipan Police Station 2) On 20 January 2009, the deceased met his death while under remand at the station. Prior to his death, the family was not aware of his detention as they were not informed by the police. 3) The family only became aware when they informed of his death on the same date. The deceased's body showed extensive injuries from beatings he sustained during his detention. 4) D1, the Chief Police Officer of Selangor, on 21 January 2009 issued a press statement that the deceased collapsed and died after drinking a cup of water. The truth of D1's press statement is ambiguous and plaintiff alleged that there had been a cover up of the real cause of the deceased's death to exculpate the police force from any responsibility 5) 2 Autopsy has been made and the 1st autopsy is invalid as the author was charged with misconduct by MMC. 2nd autopsy has shown a valid report where ‘45 categories of personal injuries were identified 6) D2 was found guilty of causing grievous hurt to the deceased. Arising from this, the plaintiff (the mother of the deceased as administratrix of the estate) launched this suit claiming damages in the form of aggravated, exemplary, vindicatory and special and premised it on the tort of negligence, breach of statutory duties for unlawfully causing the death of the deceased, misfeasance of the public office, assault and battery and false imprisonment. 2
- 3. CIVIL APPEAL HIGH COURT OF KUALA LUMPUR 26 JUNE 2013 COURT OF APPEAL OF PUTRAJAYA 8 AUGUST 2014 3
- 4. Subject Matter Tort Damages Tort False imprisonment Tort Misfeasance in Public Office Tort Vicarious Liability Tort Breach of Statutory Duty 4
- 5. LEGAL ISSUES 1. Whether there was a breach of statutory duty suffered by the detainee by the defendants 2. Whether the detention of the deceased was unlawful and whether false imprisonment by police was established 3. Whether tortfeasor and his superior officers liable for deceased death 4. Whether award of exemplary damages barred by s 8(2) of the Civil Law Act was appropriate 5. Whether detainee was allowed to seek advice. 6. Whether superior officers liable for misfeasance in public office. 5
- 6. WHETHER THERE WAS A BREACH OF STATUTORY DUTY SUFFERED BY THE DETAINEE BY THE DEFENDANTS • In the circumstances of this case, an independent inquiry should have been initiated and nothing short of that would have sufficed. There were many unanswered questions and common sense demanded that only a full public inquiry would answer those questions. • The court was also perturbed by the fact that no inquest was held as permitted by s 334 of the Criminal Procedure Code when the 2nd autopsy by itself should have warranted a full investigation of the circumstances in which the deceased met his death. • HELD: the first, second and third defendants had breached their duty of care to the deceased. 6
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- 8. CONTINUE • As to what that duty of care and standard of care are depend on the circumstances of each individual case and it is for the courts to determine what that duty and standard of care are as was done in the Federal Court case of Foo Fio Na v Dr Soo Fook Mun & Anor [2007] 1 MLJ 593. • In Foo Fio Na's case, the Federal Court quoted with approval Callaghan J in Hajgato v London Health Association et al (1982) 36 OR (2d) 669, where in an action in negligence in respect of personal injuries sustained during post- operative case the learned judge stated as follows: • In my view however, a court has a right to strike down substandard approved practices when common sense dictates such a result. No profession is above the law and the courts on behalf of the public have a critical role to play in monitoring and precipitating changes where required in professional standards. 8
- 9. WHETHER THE DETENTION OF THE DECEASED WAS UNLAWFUL AND WHETHER FALSE IMPRISONMENT BY POLICE WAS ESTABLISHED • The deceased's remand was a consequence of a judicial act, being an order given by a magistrate and no such application to the High Court had been made by the plaintiff to declare that the remand was unlawful. • Hence, the abuses which the deceased endured could not give rise to a cause of action for false imprisonment. The cause of action for a tort of false imprisonment arises when a person is imprisoned without lawful justification and that action is against the person who caused the imprisonment. • Here the person who caused the detention was a magistrate exercising his judicial power and that judicial act had not been set aside or declared unlawful. • HELD: the Court found that the tort of false imprisonment is not available to the plaintiff as there was in place a valid remand. 9
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