Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 MarsdenLR 1627

HIGH COURT MALAYA KUALA LUMPUR
JOSEPH ANTHONY & ANOR – Appellant
Versus
DR MUHAMAD ARIF MOHAMAD RASAT & ORS – Respondent
[Writ Summon No: WA-21NCVC-38-05-2018]

Petitioner Advocates:M Visvananthan,V Sanjay Nathan ,Respondent Advocate: Shazreen Nadia Zulkipli,Khairuddin Anhar

The court found no duty of care owed by medical or police officers to a deceased or their family in post-mortem examinations and investigations, ruling claims for negligent autopsy were time-barred.

Headnote:(A) Criminal Procedure Code Act 593 - Section 330 - Public Authorities Protection Act 1948 - Section 2 - Civil Law Act 1956 - Sections 7 and 8 - Post-mortem examination - Duty of care owed by medical officers and police officers to deceased and family - No duty of care owed to deceased by medical officer conducting autopsy as deceased was already dead - No duty of care owed to parents of deceased by medical officer or police officer during investigation - Claims against defendants barred by limitation under Section 2 of PAPA for negligent autopsy but not for negligent investigation. (Paras 2, 4, 6, 204, 206, 209, 213, 217)

(B) Tort of Misfeasance in Public Office - Elements not established as no abuse of power by defendants found - Negligence does not equate to misfeasance. (Paras 195, 216)

Judgement Key Points

Key Points: - The court held there is no duty of care owed by the medical officer to the Deceased or to the Deceased’s parents in performing an autopsy. (!) (!) - The First Plaintiff cannot rely on Sections 7 and 8 of the Civil Law Act 1956 to sue for breach of duty of care in performing an autopsy. (!) (!) (!) - The defense of limitation under s 2 of the Public Authorities Protection Act 1948 can be relied on by the defendants even though not pleaded, and the claim on negligent autopsy is time-barred, while the negligent investigation claim is not barred. (!) (!) (!) (!) - The 6th Defendant is not vicariously liable for the acts/omissions of the other defendants. (!) - The Court dismissed the suit against all defendants with costs. (!) (!)

Question 1?

What is the duty of care owed by a medical officer conducting a post-mortem to the deceased or to the deceased's family in Malaysia?

Question 2?

What is the applicability of Civil Law Act 1956 sections 7 and 8 to sue for negligence in relation to autopsy or post-mortem?

Question 3?

What is the effect of Public Authorities Protection Act 1948 on negligence claims concerning autopsy and police investigation in this case?

Table of Content
1. autopsy mandated by law. (Para 1 , 2)
2. key issues concerning duty of care. (Para 3 , 4)
3. plaintiffs' identities and claims. (Para 5 , 6 , 7 , 8)
4. defendants' roles and responsibilities. (Para 9 , 10 , 11 , 12 , 13 , 14)
5. plaintiff's allegations of negligence. (Para 15 , 16 , 17 , 18 , 19 , 20 , 21 , 22 , 23 , 24)
6. defendants' denial of negligence. (Para 25 , 26 , 27 , 28)
7. trial process and witness testimonies. (Para 29 , 30 , 31 , 32)
8. plaintiff's capacity to sue. (Para 33 , 34 , 35)
9. legal procedure for death inquiries. (Para 38 , 41 , 42 , 43 , 44 , 45 , 46 , 47 , 48 , 49 , 50 , 51 , 52 , 53)
10. court's findings on autopsy. (Para 57 , 61 , 62 , 67)
11. plaintiff's arguments on duty of care. (Para 68 , 69 , 70 , 71 , 72 , 74 , 75 , 76)
12. court's analysis on duty of care. (Para 130 , 143 , 145 , 146 , 147 , 148 , 149 , 150 , 151 , 152)
13. limitation defense and its implications. (Para 186 , 187 , 188 , 189 , 190)
14. final judgment and costs order. (Para 217 , 218)

Leong Wai Hong JC:

Introduction

[1]" Dead men tell no tales" is an idiom from the old Latin 'mortui non mordent'. It attests to the 'wisdom' of killing one's enemies to prevent them from exposing one's dark secrets and misdeeds.

[2] For this reason, the state has always mandated an autopsy, also called a post-mortem examination, of the body of a person who has died in a sudden or unnatural manner or by violence pursuant to s 330 of the Criminal Procedure Code Act 593 ("CPC"). The purpose is to determine the cause, mode, and manner of death.

[3] The trial before me raises issues of general importance in relation to a post-mortem examination of the body of a deceased and the related police investigation, which Counsel told me have not been decided by our Courts. The principal issues are:

i. Whether a doctor conducting a post-mortem examination on a dead body owes a duty of care to the deceased;

ii. Whether a doctor conducting a post-mortem examination on a dead body owes a duty of care to the parents of the deceased;

iii. Whether a police officer investigating a sudden death report owes a duty of care to the deceased; and

iv. Whether a police officer investigating a sudden death report owes a duty of care to the parents of the deceased.

[4] The other important questions are:

i. Whether the defendants can rely on the limitation defence set out in s 2 of the Public Authorities Protection Act 1948 (" PAPA ") if it has not been pleaded in the Defence;

ii. Is the tort of misfeasance in public office the same as non-feasance in public office?

[5] The 1st plaintiff is the father of a deceased, Sebastian A/L Joseph ("Deceased"). He is suing as the administrator of the Deceased's estate according to the description of the 1st plaintiff in the Writ of Summons. This is because the 1st plaintiff is pleaded as "Joseph A/L Anthony (No K/P: 51032408-5881) (Pentadbir Estet Sebastian A/L Joseph, Si Mati)".

[6] However, the 1st plaintiff contends that he is also suing in his individual capacity as the father of the Deceased. The defendants disagree. This issue will be addressed by me in my Judgment.

[7] The Deceased was a medical doctor who worked at the Klinik Kesihatan Kuah, Langkawi, Kedah Darul Aman. He was found dead on 17 November 2010.

[8] The 2nd plaintiff is the mother of the Deceased. Counsel for the two plaintiffs had informed this Court on 16 March 2023 that the 2nd plaintiff wished to discontinue her claim. I accordingly had granted the order for the discontinuance of the claim of the 2nd plaintiff.

[9] The 1st defendant was a medical officer on duty at Hospital Langkawi, Kedah Darul Aman who carried out the autopsy on the Deceased.

[10] The 2nd defendant was the Director of Langkawi Hospital.

[11] The 3rd defendant was the Director of the Kedah Health Department, Kedah Darul Aman.

[12] The 4th defendant was a Police Investigation Officer who investigated the death of the Deceased.

[13] The 5th defendant is the Inspector-General of Police.

[14] The 6th defendant is

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