A claimant must ground their case in the pleadings; a claim arising under a different legal basis than presented cannot sustain a judgment.

[1]This is an appeal by the 3rd and 4th defendants against the decision of the learned judge of the High Court, Kuala Lumpur, who held them liable in negligence for the death of Mohd Anuar bin Sherif ('deceased'), aged 32, whilst in the custody of the police. The 3rd defendant was then the Inspector General of Police, being the agent or servant of the Government of Malaysia, the 4th defendant. The 1st defendant and the 2nd defendant, who were then holding the ranks of Deputy Superintendant of Police and Assistant Commissioner of Police, respectively, in the Royal Malaysian Police were however held not liable for the death of the deceased whilst in the custody of the police. For convenience, the parties herein are referred to as they were cited in the High Court below.

[2]The High Court found the 3rd and 4th defendants liable for the death of the deceased whilst he was in the custody of the police and accordingly ordered that damages be assessed by the Deputy Registrar. The Deputy Registrar had pursuant thereto made the assessment of damages. The 3rd and 4th defendants, being dissatisfied, appealed against the assessment of damages. The plaintiff cross-appealed, contending that the damages were inadequate. The learned Judicial Commissioner dismissed the appeal by the 3rd and 4th defendants on assessment of damages but allowed the plaintiff 's cross-appeal on damages by increasing the damages awarded to the plaintiff. The said decision of the learned Judicial Commissioner is now the subject of two separate appeals. These appeals are not before us.

[3]The instant appeal is against the decision of the learned judge (not the Judicial Commissioner). This appeal is only in respect of liability.

[4]The following facts are not in dispute. The deceased was arrested by the police at his house on 10 August 1999 at about midnight on suspicion of being a drug addict. Later on the same day, the police obtained a detention order from the Rawang Magistrate Court pursuant to s 4(1)(b) of the Drug Dependants (Treatment and Rehabilitation) Act 1983 that the deceased be detained until 23 August 1999 to undergo tests for the purpose of determining whether he was a drug dependent.

[5]On 16 August 1999 the deceased whilst being detained in the Rawang police lock-up vomited blood and was immediately brought to Klinik Kesihatan Rawang ("Rawang clinic").

[6]Two days later, that is, on 18 August 1999 the deceased complained of stomach ache. He was again brought to the same clinic by the police and was attended to by a medical assistant. He was examined and given some gastric pills.

[7]A day later, that is, on 19 August 1999 at about 1.30am the deceased was found unconscious in the police lock-up. The autopsy report dated 15 September 1999 shows that the deceased died on 19 August 1999 at 1.30am. The cause of death was stated as "massive pleural effusion secondary to Bronchopneumonia".

[8]On 19 May 2000, the deceased's wife commenced an action against the defendants for general damages, specific damages, exemplary damages and loss of support, in her capacity as an administratrix of the deceased's estate and dependent of the deceased.

[9]The plaintiff 's claim for general damages is for trespass, harassment, unlawful search, unlawful detention, pain and suffering, loss of consortium and bereavement.

[10]The plaintiff 's cause of action against the defendants is based on assault and battery. This is stated in para21 of the statement of claim:

"21. Plaintiff menyatakan yang suami plaintif telah disiksa, didera, dipukul dan dicederakan dan mendapat kecederaan "multiple laceration lesion over the neck, chest, abdomen and back region ranging from 1cm to 2cm" dan juga mengalami kecederaan diseluruh badan dan ba