Exemplary damages may be awarded in estate claims where constitutional rights are violated, redefining the interpretation of the Civil Law Act's prohibitions.

Rhodzariah Bujang FCJ (majority):

[1] The appellants in this appeal were sued by the respondents, the joint administrators of the estate of one Chandran a/l Perumal ("the deceased") and who were his wife and daughter, respectively. The suit was filed following his demise on the 5th day whilst in police custody pursuant to his arrest, with three others, on suspicion of kidnapping a newborn baby. As found by a coroner, following an inquest into his death, the deceased died of hypertensive heart disease and the claim put forth by the respondents was for losses suffered by his estate and lawful dependants by reason thereof which they alleged was due to the wrongful acts of the appellants. After a full trial the learned High Court Judge ("HCJ") found for the respondents and awarded the following damages against the appellants:

(a) special damages - RM3,500.00;

(b) bereavement - RM10,000.00;

(c) loss of dependency - RM144,000.00;

(d) exemplary damages - RM200,000.00; and

(e) cost - RM50,000.00.

[2] The appellants were only dissatisfied with the decision in respect of the award of exemplary damages and filed an appeal to the Court of Appeal in respect of it but which appeal was dismissed. The appellants sought and was granted leave by this Court to appeal against the said decision on this sole question of law:

"Whether s 8(2) of the Civil Law Act 1956 [Act 67] is an absolute bar to the award of exemplary damages in an estate claim?"

[3] Given the legal poser before us and the fact that liability was not in dispute before the Court of Appeal and now us, it would not be necessary in this judgment of mine to dwell at length on the circumstances upon which the learned HCJ fastened liability on the appellants, except to say that the demise of the deceased was directly attributable to the failure of his custodians to give him proper medical care and attention which was warranted by his pre-existing medical condition. It is also stated in the post-mortem report that the deceased had not eaten any food for the pathologist found that his stomach was empty. This is of course another damning evidence in support of the finding of liability against the appellants.

Case Precedents

[4] As submitted by the learned Senior Federal Counsel ("SFC") acting for the appellants, this was not the first time that this Court had been tasked to answer this question for in Ketua Polis Negara & Ors v. Nurasmira Maulat Binti Jaafar & Ors, [2018] 3 MLJ 184 ("the Kugan's case"), a similar question in the following words was posed for this Court's determination:

"Whether s 8(2) of the Civil Law Act 1956 (Act 67) which bars the awarding of exemplary damages in an estate claim is applicable where the death of the deceased is as a result of a breach of his constitutional right to life?" [p 40 of the Kugan's (Appeal No 52)].

[5] As stated in the report, Kugan died of acute renal failure after being tortured and beaten to death whilst also in police custody and the High Court awarded RM300,000.00 against the appellants for exemplary damages which the Court of Appeal affirmed. However that award was set aside by a majority decision of this Court penned by Zaharah Ibrahim FCJ. The minority decision was delivered by Zainun Ali FCJ.

[6] Before going further into the reasonings of Kugan's case, it is best that I reproduce the aforesaid s 8 and the relevant sub-sections below:

"8. Effect of death on certain causes of action.

(1) Subject to this section, on death of any person all causes of action subsisting against or vested in him shall survive against, or, as the case may be, for the benefit of, his estate:

Provided that this subsection shall not apply to causes of action for defamation or seduction or for inducing one spouse to leave or remain part from the other or to any claim for damages on the ground of adultery.

(2) Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that pe