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TORT – DUTY OF CARE – BREACH OF DUTY

In brief

  •  Multiple incidences have occurred in Malaysia when detainees have tragically died as a result of police misconduct. The main question here is whether or not the police officer has a duty of care to the convict. Detaining authorities have a duty of care to ensure that detainees are healthy and get adequate medical treatment while incarcerated. There is also a responsibility to ensure that prisoners are not hurt by detaining authorities or other convicts, or that they do not self-harm or commit suicide.

Has the police officer been assigned a duty of care?

  •  Legal authorities have well-written this duty of care. The duty of care of prison officials, for example, is defined by Halsbury’s Laws of England, an authority on English law, as “the duty to take reasonable care for the safety of all who are within the jail, including the inmates.”. As a result, the general duties of a police officer towards the public are outlined in Section 20 of the Police Act Malaysia 1967.
  •  Actions will be taken, for example, if a prisoner is injured by another prisoner as a result of the prison authorities’ negligent supervision, with greater care and supervision being required of a prisoner known to be potentially at greater risk than other prisoners, to the extent that is reasonable and practicable, or if a prisoner is negligently put to work in health-damaging conditions; or if inadequately instructed in the use of machinery; or if a prisoner is injure by another prisoner.
  •  In the case of Datuk Seri Khalid Abu Bakar & Ors v N Indra Nallathamby & Others [2014] 9 CLJ 15 CA, the Court of Appeal made unambiguous statements on the police authorities’ duty of care in the instance of a detainee’s death while in police custody. To say the least, the police’s behaviour was terrible in this case. In this case, the victim died after being beaten by police officers. “The police force is a public professional body, and there are duties of care in the performance of its powers, just as there are in other professional organisations,” the Court of Appeal said. It is their standard operating procedure (SOP) in the framework of the police force, and it should be scrutinised by a court of law.

Is it possible for me to sue for damages if my husband died in jail as a result of police misconduct?

  •  There are a few different sorts of damages that you can sue for. To begin, you can bring a dependency claim for loss of support against the defendant under the Civil Law Act, section 7(3)(iv). This only occurs when your spouse is the family’s sole breadwinner.
  •  Moving on, as the deceased’s widow, she is entitled to a claim for damages for bereavement under the Civil Law Act’s sections 7(3) and (3B). In addition, under section 7(3)(ii) of the Civil Law Act, the court may grant funeral expenses.
  •  Furthermore, as the deceased’s widow, you are also able to claim damages for pain and suffering if evidence shows that from the time of the arrest till the time of the death, the deceased has gone through pain and suffering during this period. In the case of Janagi a/p Nadarajah (joint estate administrator and dependent of Benedict a/l Thanilas, deceased) & Anor v Sjn Razali bin Budin & Ors [2022] 8 MLJ 820 [HC], where her husband was detained by a police officer in a jail and tragically died because the defendants failed to provide him with the necessary care and medication. The defendants’ failure to do so aggravated the deceased’s illness and caused him anguish and suffering, which ultimately led to his death.
  •  Lastly, plaintiffs are entitled to aggravated damages as a result of the defendants’ carelessness and omissions, which caused the plaintiffs anguish and suffering.
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