1. ) MOHAMAD SUKRI BIN HAT 2. ) KOPERAL JANNATUL NAIM BIN ABDUL MANAB 3. ) KONSTABEL DERISON BIN PINGOT 4. ) FADLY ADZWARDY BIN TAHIR 5. ) RAMILAH BINTI SUPERMAN 6. ) INSP MOHAMAD ADAM DANIYAL @ MOHANDASS BIN ABDULLAH 7. ) ASP WINSTON ANAK RAIP 8. ) KETUA POLIS DAERAH SEBERANG PERAI UTARA 9. ) KETUA POLIS PULAU PINANG 10. ) KETUA POLIS NEGARA, MALAYSIA 11. ) Kerajaan Malaysia v FADHELAH BINTI OTHMAN

Case Significance

A statement on custodial-death liability and aggravated damages: the police and Government owe enforceable duties of care to detainees under the Police Act 1967 and Lockup Rules 1953, but aggravated damages are not available for negligence alone — they require conduct beyond the negligence that caused the death; the award of aggravated damages was set aside while liability was affirmed.

This Court of Appeal decision concerns the liability of the police and the Government for the death of a detainee who committed suicide in a police lockup, and the proper scope of aggravated damages. The action was brought by the administratrix of the deceased's estate — a natural person referred to here by role, suing also as a dependant — against several police officers, senior police officers, the Inspector-General of Police and the Government of Malaysia. The deceased, arrested on suspicion of drug-related offences and remanded, was found hanging in his cell some two days later; there was no evidence of foul play, and the post-mortem was consistent with hanging.

The claim was framed in negligence, breach of statutory duty and misfeasance in public office, relying on the duties owed to detainees under the Police Act 1967, the Lockup Rules 1953 and the applicable standing orders (Perintah Tetap), and engaging questions of the chain of causation, CCTV monitoring, vicarious liability and the assessment of a dependency claim. The High Court had found the defendants liable and awarded damages, including aggravated damages.

The Court of Appeal largely upheld the finding of liability but corrected the award of aggravated damages. It accepted the trial judge's finding that there had been no deliberate withholding of medicine and no positive acts of torture or injury inflicted on the deceased; his death was caused by the tortfeasors' negligence, a matter to be compensated by the usual general and special damages. It held that it was "plainly wrong" to award aggravated damages simply because the defendants' negligent acts or omissions had led to a death that compliance with the rules could have avoided: "negligence by itself does not give rise to an award of aggravated damages as of right." The court therefore dismissed the appeal save in relation to the aggravated damages, which it set aside, affirmed the decision otherwise, dismissed the respondent's cross-appeal to increase the damages, and made no order as to costs.

The judgment is a valuable statement on custodial-death liability and aggravated damages: the authorities owe enforceable duties of care to detainees, but aggravated damages are not available for negligence alone, requiring conduct — such as deliberate or high-handed wrongdoing — beyond the negligence that caused the death.