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2023 MarsdenLR 97
HIGH COURT MALAYA TAIPING
MUHAMMAD ISMA IZAMI JAAFAR – Appellant
Versus
KONSTABEL MUHAMAD ZAFRAN AIMAN MUHAMAD ZAINOL & ORS – Respondent
[Civil Suit No: AB-21NCvC-2-05/2019]
Police officers must exercise reasonable care and justification when using firearms; excessive force leading to injury can result in liability for negligence.
Headnote:(A) Assault and Battery - Negligence - Police Act 1967 - Sections 3(3) and 20(3)(a) - Plaintiff shot by police during pursuit, resulting in severe brain injury - Court found police acted negligently in discharging firearms without reasonable justification - Plaintiff awarded RM602,505.00 in damages. (Paras 1, 33, 78, 109)
(B) Liability - Police officers owe a duty of care to the public - Use of firearms must be justified and proportionate to the threat posed - Court established that the police's actions were excessive and unreasonable. (Paras 33, 49, 60)
Facts of the case:
Plaintiff pursued by police, refused to stop due to fear of arrest for traffic offences, resulting in police firing shots that injured him. (Paras 3-10, 19-20)
Findings of Court:
Plaintiff proved on a balance of probabilities that the police were negligent, resulting in permanent injuries. (Paras 30, 60, 78)
Issues: Whether the police had lawful justification to discharge their weapons and whether the Plaintiff was entitled to damages. (Paras 19, 20)
Ratio Decidendi: The court ruled that the police's use of firearms was unjustified given the circumstances, leading to the Plaintiff's injuries. (Paras 32, 33, 60)
Result: Plaintiff awarded damages totaling RM602,505.00 with interest. (Paras 1, 109)
| Table of Content |
|---|
| 1. factual background of the case. (Para 1 , 2 , 3 , 4 , 5 , 6) |
| 2. summary of the plaintiff's and defendants' cases. (Para 11 , 12 , 13 , 14 , 15 , 16 , 17) |
| 3. trial proceedings and witness testimonies. (Para 19 , 20 , 21 , 22 , 23 , 24 , 25 , 26) |
| 4. court's evaluation and findings on liability. (Para 30 , 31 , 32 , 33 , 34 , 35 , 36 , 37) |
| 5. assessment of damages and compensation. (Para 78 , 79 , 80 , 81 , 82 , 83 , 84 , 85 , 86 , 87) |
| 6. final judgment and order. (Para 109) |
Background
[1] This case was filed by the Plaintiff against the Defendants on 30 May 2019 and it was among those cases which were affected by the Covid-19 pandemic and trial had to be delayed due to movement control restrictions. Eventually, judgment was delivered on 13 July 2023 in favour of the Plaintiff. The Court found that the Plaintiff had proved his case on a balance of probabilities and awarded damages totaling RM602,505.00. Dissatisfied, the Defendants file a Notice of Appeal on 9 August 2023.
[2] Trial commenced before the then Judicial Commissioner of the Taiping High Court YA Tuan Muniandy AIL Kanyappan who was transferred to Shah Alam High Court in February 2022. By then the Plaintiff had called 7 witnesses to testify on his behalf, I took over conduct of the trial with the Plaintiff starring his evidence on 24 June 2022.
Factual Matrix
[3] I he factual matrix were gathered from the pleadings and statements by the Plaintiff and the 1st and 2nd Defendants. The Plaintiff was an individual from Parit Abu Hassan Ban, Alor Pongsu, Kerian, Perak and who worked in an oil-paim estate prior to this suit. He sustained injuries allegedly due to gunshots discharged from the weapons of the 1st and/or 2nd Defendants during a hot pursuit in the early hours of 10 November 2016 in the is area of the Plaintiff's village within the district of Kerian.
[4] At the material time, the 1st Defendant was a police constable in the Ibu Pejabat Polis Daerah Kerian (IPD). The 2nd Defendant was a police corporal and supervisor of the 1st Defendant, also from the same IPD. Both of them were under the supervision, responsibility and/or control of the 3rd Defendant, who was the Officer in Charge of Police District of Kerian (OCPD). The 4th, 5th and 6th Defendants were alleged to be vicariously liable for the actions and/or omissions of the 1st, 2nd and 3rd Defendants.
[5] The Plaintiffs pleaded causes of action were for assault and battery. Alternatively, the Plaintiff claimed the Defendants were negligent and/or committed breach of duty, and/or misfeasance in public office. In his Statement of Claim dated 30 May 2019 he sought from the Court general damages, special damages, damages for loss of income of RM2,600.00 and continuing, damages for future loss of income or loss of ability to work, damages for misfeasance in public office, aggravated and/or exemplary damages, interests, costs and other relief. The Plaintiff also sought a 5 declaration that the Defendants had, wilfully and/or with wrongful intent, breached his fundamental rights as contained in Part II of the Federal Constitution.
[6] The Defendants denied any liability and pleaded that the 1st and 2nd Defendants had acted reasonably with reasonable force in accordance with the law in carrying out their tasks and statutory duties. Further, any losses and damages sustained by the Plaintiff were wholly or mainly attributed to his own negligence. Moreover, the Defendants averred that the principle of volenti non fit injuria applied because the Plaintiff had is voluntarily and negligently, at his own risk, placed himself in a situation which he knew or should have known would endanger his life and safety.
The Plaintiff's Case
[7] On 10 November 2016 at about 12.00 midnight the Plaintiff (PW8) was driving a Proton Saga bearing registration number JBS 9410 in Kg Dew, Semanggol, Perak from Kamunting heading towards the direction of Alor Pongsu. In the car with him were 3 friends, namely, M
