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2021 MarsdenLR 2962
HIGH COURT MALAYA KUALA LUMPUR
JANAGI NADARAJAH & ANOR – Appellant
Versus
SJN RAZALI BUDIN & ORS – Respondent
[Suit No: WA-21NCVC-38-07-2020]
The police owe a fundamental duty of care to detainees, including medical attentiveness; failure to meet this duty resulting in death constitutes negligence.
Headnote:(A) Civil Law Act 1956 – Sections 7 and 8 – Dangerous Drugs (Special Preventive Measures) Act 1985 – Section 3(1) – Police Act 1967 – Section 20 – Lockup Rules 1953 – Duty of care owed by police to detainees – The court found that the police failed to provide necessary medical attention to the Deceased who was detained and required medication, contributing to his death, leading to damages awarded for loss of support, bereavement, funeral expenses, pain and suffering, and aggravated damages. (Paras 20-22, 70-108)
Facts of the case: The Deceased, with chronic health issues, was arrested and detained by the police. Despite informing the police of his condition and medication needs, he received no medical attention while in custody and subsequently died in a lockup. (Paras 1-4, 11, 20)
Findings of Court: The court ruled that the police officers failed in their duty of care, leading to the Deceased's avoidable death due to medical neglect. (Paras 21, 70)
Issues: Whether a duty of care existed towards the Deceased under police custody and whether that duty was breached resulting in the Deceased’s death. (Paras 5-6)
Ratio Decidendi: The court concluded that police are responsible for the health and safety of detainees and must provide necessary medical care. Their neglect was a breach of statutory duties resulting in civil liability for the Deceased's death. (Paras 20-22)
Result: Judgment was awarded in favor of the Plaintiffs for various damages due to police negligence in the Deceased's care. (Paras 70-108)
JUDGMENT
Introduction
[1] The 1st Plaintiff ("P1") is the lawful wife of Benedict a/l Thanilas ("Deceased") and joint administrator of the Deceased's estate. P1 brought this suit for her benefit and her children's benefit as dependents of the Deceased under s 7 of the Civil law Act 1956 ("Civil Law Act") and on behalf of the Deceased's estate under s 8 of the Civil Law Act. The 2nd Plaintiff ("P2") is the daughter of the Deceased and joint administrator of the Deceased's estate. P2 brought this suit on behalf of the Deceased's estate under s 8 of the Civil Law Act. P1 and P2 are collectively referred to as the "Plaintiffs".
[2] The Plaintiffs' claim is for losses suffered by the Deceased's estate and dependents due to the negligent acts, omissions or breach of statutory duty by the Defendants which allegedly led to the death of the Deceased. After a full trial, I gave judgment in favour of the Plaintiffs. These are the grounds of my judgment.
Background
[3] The Deceased was a hypertensive, diabetic, stroke and heart patient who required daily medication for his various health problems On 29 June 2017 at around 10:30am, the Deceased was arrested at his home in Jinjang, Kuala Lumpur by a group of police officers led by the 1st Defendant. The Deceased was suspected to be a drug dealer. He was brought to Ibu Pejabat Polis Daerah Sentul where his arrest was made known to the Investigating Officer (ie the 2nd Defendant) and the officer who ordered the Deceased's arrest (ie the 5th Defendant).
[4] P1 went to the offices of Bahagian Siasatan Jenayah Narkotik IPD Sentul at around 3:30pm on the same day to hand over 10 types of medicines that the Deceased required daily to the 1st Defendant. At around 6:30pm on the same day, the Deceased was sent to Lokap Berpusat Jinjang, Kuala Lumpur ("lockup") to be detained for 60 days under s 3(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 beginning on 29 June 2017 until 27 August 2017 for investigation. On 7 July 2017 at around 10pm, the Deceased communicated with P1 using a mobile phone belonging to one of the officers in charge of the lockup. The Deceased informed P1 that he had a fever and his body felt very cold. On 10 July 2017 at around 5:10am, the Deceased collapsed in his detention cell whilst urinating. At 6:06am, the Deceased was 'brought in dead' to Hospital Kuala Lumpur.
Issues For Determination
[5] The primary issues for determination in this case are:
(a) Whether the Defendants owed a duty of care towards the Deceased who was under remand and in the custody of the Defendants at the material time;
(b) If yes, whether the Defendants had breached the duty of care by failing to provide the necessary medical attention to the Deceased;
(c) If yes, whether the actions and omissions by the Defendants had caused or contributed to the Deceased's death;
(d) If yes, whether the Defendants are liable to pay damages as pleaded by the Plaintiffs in their Statement of Claim.
Rights Of The Deceased And General Duties Of The Police
[6] Article 5 of the Federal Constitution guarantees the Deceased's right to life and liberty. The Deceased had not yet been charged, tried or convicted for any crime. The Deceased had been arrested and detained for an alleged drug offence pursuant to s 3(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 .
[7] Section 20 of the Police Act 1967 ("Police Act") outlines the general duties of police officers. This includes a duty to give 'assistance in the protection of life and property" pursuant to s 20(3)(j) thereof. Further, s 20(3)(m) read together with s 20(4) deems a police officer "guarding prisoners and other persons in the custody of the police" as a prison officer with corresponding powers and duties.
[8] The Lockup Rules 1953 ("Lockup Rules"), inter alia, provides for medical inspection on admission. Rule 10 reads:
"The Medical Officer shall so far as possible examine every prisoner as soon as possible after admission to a lockup a
