Ketua Polis Negara & 2 Lagi … Perayu v Nurasmira Maulat Binti Jaafar & 2 Lagi … Responden (01(f)-36-05/2015(W))

ASP ONG SENG KONG

SITI FATIMAH BT ABDUL JAFFAR (Ketiga-tiga kanak-kanak di bawah umur yang membawa tuntutan ini melalui ibunya yang sah/dan sahabat wakil ABRA BT SAHUL HAMID) RESPONDEN-RESPONDEN RAYUAN SIVIL NO. 01(i)-52-10/2015(W)

KERAJAAN MALAYSIA PERAYU-PERAYU N. INDRA A/P P. NALLATHAMBY (Pentadbir Estet dan tanggungan Kugan a/I Ananthan, Si Mati) RESPONDEN RAYUAN SIVIL NO. 01(f)-53-10/2015(W)

KERAJAAN MALAYSIA ... PERAYU-PERAYU RESPONDEN GHAUR CHANDRAM A/L MURUGESU (NO. K/P: 571024-10-9173) (Mendakwa bagi pihak sendiri dan kesemua orang tanggungan sebagai bakal Pentadbir Sah Harta Pusaka Uthayachandran a/l Gaur Chandram – No. K/P: 850422-14-6511) KORAM: Ahmad bin Haji Maarop, HBM Suriyadi bin Halim Omar, HMP Zainun binti Ali, HMP Azahar bin Mohamed, HMP Zaharah binti Ibrahim, HMP MAJORITY JUDGMENT (Ahmad bin Haji Maarop, CJM Suriyadi bin Halim Omar, FCJ Azahar bin Mohamed, FCJ Zaharah binti Ibrahim, FCJ) INTRODUCTION [1] These three appeals arose from three separate cases heard at first instance before three different Judges of the High Court. [2] Different panels of the Court of Appeal heard the respective appeals against the decisions of the High Court. [3] Applications for leave to appeal against the decisions of the Court of Appeal were heard and allowed by three different panels of this Court. The questions of law for which leave was granted relate to sections 7 and 8 of the Civil Law Act 1956 ["CLA"]. [4] In view of the similarities of facts and issues in the three appeals, the three appeals were heard together before the same panel of this Court. Appeal No. 01(f)-36-05/2015(W) [5] Appeal No. 01(f)-36-05/2015(W) ["Appeal No. 36"] is an appeal by the Appellants (who were the Defendants in the High Court) against the decision of the Court of Appeal which allowed the appeal by the Respondents (who were the Plaintiffs in the High Court) against the decision of the High Court dismissing with costs the Respondents' claim for damages for loss of dependency, and for exemplary and aggravated damages. [6] Appeal No. 01(i)-52-10/2015(W) ["Appeal No. 52"] is an appeal by the Appellants (who were the Defendants in the High Court) against the decision of the Court of Appeal which allowed the appeal by the Respondent in part against the decision of the High Court allowing the claim by the Respondent (who was the Plaintiff in the High Court) for, among others, damages for false imprisonment and misfeasance in public office and exemplary damages. [7] The Court of Appeal, in allowing the Appellants' appeal in part, ordered that the award of damages for false imprisonment be set aside. The other damages awarded by the High Court were affirmed. [8] The Court of Appeal also allowed the appeal by the $ 2^{\mathrm{nd}} $ Defendant (who is not a party to the appeal before us) and reduced his liability to 45%. Appeal No. 01(f)-53-10/2015(W) [9] Appeal No. 01(f)-53-10/2015(W) ["Appeal No. 53"] is an appeal by the Appellants (who were the Defendants in the High Court) against the decision of the Court of Appeal which allowed the appeal by the Appellants in part against the decision of the High Court allowing the claim by the Respondent (who was the Plaintiff in the High Court) for, among others, loss of support, general damages and exemplary damages. [10] The Court of Appeal, in allowing the Appellants' appeal in part, set aside the award for exemplary damages, reduced the quantum of damages for dependency claim, but affirmed the award for general damages for pain and suffering. BACKGROUND FACTS Appeal No.36 [11] The Respondents in this appeal are the three children of Abdul Jaafar bin Abd. Mualib ["Jaafar"] who died on 02/09/2008. [12] The $ 3^{\mathrm{rd}} $ Appellant (ASP Ong Seng Keong) was the head of the police team which was carrying out routine patrol in Section 13, Shah Alam, in the early morning of 02/09/2008. He and his team members saw two cars: one was a Proton Waja and the other a black Proton Perdana. [13] Their suspicion being aroused, the $ 3 ^{rd} $ Appellant and his team began tailing both cars from the Shah Alam Stadium through the Kayangan roundabout and onto the Federal Highway heading towards Kuala Lumpur. [14] During their surveillance, the police team noticed that the two cars slowed down each time they neared a petrol station. There were three petrol stations in all along the route taken by the two cars. [15] When the two cars circled back to the Shah Alam Stadium, the police team stopped both vehicles. [16] After the two cars had stopped, the $ ^{3 rd} $ Appellant approached the Proton Waja and identified himself as a police officer. He suddenly heard gunshots and at the same time he heard SM Kamal Hisham bin Abdul Samad, a member of his team, scream "Tuan, dia tembak". [17] The $ 3^{\mathrm{rd}} $ Appellant immediately directed his team to open fire. Jaafar, who was seated in the front passenger seat of the Proton Waja, was shot six times by the team. Jaafar and the three others in that car were killed. Appeal No. 52 [18] In this case, Kugan a/l Ananthan ("Kugan") was arrested on 14/01/2009. The police obtained a remand order from the Magistrates' Court at Petaling Jaya for a period of seven days from 15/01/2009 to 21/01/2009. He was detained at the Taipan Police Station lock-up. [19] On 20/01/2009, around 11.40 p.m., the $ 2^{nd} $ Defendant, Navindran a/I Vivekanandan informed one of the officers on duty on that day that Kugan had vomited after drinking mineral water. [20] The $ 2^{\mathrm{nd}} $ Defendant was asked to get medical assistance from one Dr Baldev Singh from Mediviron Clinic, Subang Jaya. When the doctor arrived around 11.50 p.m., he found that Kugan was in a bad condition. He was motionless. Kugan was pronounced dead around 11.50 p.m. [21] Kugan's body was taken to Serdang Hospital for post-mortem examination. The first post-mortem examination report by Dr. Abdul Karim bin Hj Tajudin from Serdang Hospital stated that the cause of death was "pulmonary edema" related to "an abnormal build-up of fluid in the sacs of the lungs, which leads to shortness of breath". The report also mentioned that 22 categories of external wounds were found on Kugan's body. [22] Kugan's family commissioned a second post-mortem examination, which was conducted by Dr. Prashant N. Samberkar from the University of Malaya's Medical Centre. Dr Prashant's report stated that there were 45 categories of external injuries on Kugan's body and a wide range of internal injuries. The cause of death was stated as "acute renal failure due to the rhabdomyolysis due to blunt trauma to skeletal muscles". [23] An investigation was carried out. The injuries to Kugan were found to have been committed by the 2 $ ^{nd} $ Defendant. The 2 $ ^{nd} $ Defendant was charged under the Penal Code, found guilty and convicted. He was sentenced to imprisonment for a term of three years. Appeal No. 53 [24] In this case, Uthayachandran a/l Gaur Chandram ["Uthayachandran"] was remanded from 14/02/2007 in the Sungai Buloh Prison pending trial for a charge under section 39B(2) of the Dangerous Drugs Act 1952. [25] On 18/05/2008, a fight broke out amongst several prisoners during the distribution of food. As a consequence of the fight, Uthayachandran sustained severe injuries. [26] The warden on duty took Uthayachandran to the prison clinic for treatment. However, due to his severe injuries, Uthayachandran 01(f)-36-05/2015(W) - Ketua Polis Negara & 2 lagi v Nurasmira Maulat binti Jaffar & 2 lagi 01(i)-52-10/2015(W) - Datuk Seri Khalid bin Abu Bakar & 3 lagi v N. Indra a/p P. Nallathamby 01(f)-53-10/2015(W) - Ketua Setiausaha Kementerian Dalam Negeri & 5 lagi v Ghaur Chandram a/l Murugesu was taken to Sungai Buloh Hospital for further treatment. Later at the hospital, he was pronounced dead. [27] The prisoners who were involved in the fight were charged at the Shah Alam High Court and sentenced accordingly after being found guilty and convicted of the charges against them. AT THE HIGH COURT Appeal No.36 [28] On 20/04/2011, the Respondents, through their mother, filed this action for damages for loss of dependency under section 7 of the CLA. In addition, the Respondents also claimed aggravated damages and exemplary damages. [29] The Respondents claimed that their father (Jaafar) was unlawfully shot dead by the police team. The evidence showed that Jaafar never shot at the police team and therefore the police team's contention that they shot the persons in the Proton Waja in self defence was not supported by evidence. [30] At the conclusion of the full hearing, the High Court dismissed the Respondents' claim with costs. The High Court held that the police team was acting in self-defence when they opened fire after the deceased had shot at them. As such the police team was protected by section 24 of the Police Act 1967. [31] The Respondents appealed against that decision to the Court of Appeal. Appeal No. 52 [32] The Respondent, who is Kugan's mother and the administratrix of his estate and also his dependant, filed Civil Suit No. 21NCVC-7-01/202 claiming for damages against the Appellants as well as Navindran (the 2nd Defendant) for negligence and/or breach of statutory duties resulting in the death of the deceased when the deceased was under police detention. [33] The Respondent claimed under section 7 of the CLA for loss of support. The Respondent's claim was also based on section 8 of the CLA for the benefit of the estate of the deceased. She claimed damages for misfeasance in public office, assault and battery, and false imprisonment and for aggravated damages, exemplary damages, vindicatory damages and special damages. [34] At the conclusion of the hearing, the High Court allowed the Respondent's claim and awarded a total of RM801,700.00 as damages including the sum of RM100,000.00 for misfeasance in public office and the sum of RM300,000.00 as exemplary damages. [35] The Appellants appealed against that decision to the Court of Appeal. Appeal No. 53 [36] The Respondent, who is Uthayachandran's father, filed Civil Suit No. S21-153-/2009 on 01/06/2009 under section 7 of the CLA. [37] The essence of the Respondent's claim is that the Appellants had failed in their duty to ensure Uthayachandran's safety whilst in their custody. The Respondent contended that he and his family suffered anxiety, injury to feelings and bereavement due to the acts, defaults and omissions of the Appellants. [38] The Respondent sought damages for loss of support, as well as general damages for pain and suffering arising from the loss of his son, and exemplary damages. [39] The High Court allowed the Respondent's claim and awarded damages in the sum of RM192,000 for the dependency claim, the sum of RM100,000 as general damages (for pain and suffering arising from the Respondent's loss of his son) and the sum of RM100,000 as exemplary damages. [40] The Appellants appealed against that decision to the Court of Appeal. AT THE COURT OF APPEAL Appeal 36 [41] The Court of Appeal, after hearing the parties, allowed the Respondents' appeal and ruled that the judgment of the High Court showed error of law of a grave nature which required the Court of Appeal to intervene. [42] The Court of Appeal held that there was nothing in the grounds of judgment of the High Court that stated that the Appellants had discharged their burden of proving self-defence. The learned trial Judge had also not considered whether section 24 of the Police Act 1967 relied upon by the Appellants entitled the police team to use excessive force and kill Jaafar. [43] The Court of Appeal awarded damages in the sum of RM51,000.00 for the Respondents' dependency claim. The Court also awarded exemplary damages in the sum of RM300,000.00. [44] In granting the claim for exemplary damages, the Court of Appeal held that exemplary damages are permissible when a complaint is related to breach of fundamental guarantee under the Federal Constitution. The Court of Appeal said:

(i) The House of Lords as early as 1964 in Rookes v Barnard [1964] AC 1129 has held that English courts have recognised the awarding of exemplary damages, that is, damages whose object was to punish or deter and which were distinct from aggravated damages (whereby the motives and conduct of the defendant aggravating the injury to the plaintiff would be taken into account in assessing compensatory damages), and there were two categories in which an award of exemplary damages could serve as a useful purpose, viz, in the case of oppressive, arbitrary or unconstitutional action by the servants of the government, in the case where the defendant's conduct had been calculated by him to make a profit for himself, which might well exceed the compensation payable to the plaintiff. [See Sakshi Sharma w/o Rajesh Sharma and others v State of Himachal Pradesh and others [2012] Indlaw HP 1474]. The Indian courts have been cautious in granting exemplary damages in ordinary tort claims. In Common Cause v Union of India [1999] 6 SCC 667 it was stated: "In an action for tort where the plaintiff is found entitled to damages, the matter should not be stretched too far to punish the defendant by awarding exemplary damages except when their conduct, specially those of the government and its officers, is found to be oppressive, obnoxious and arbitrary and is, sometimes coupled with malice... If we were to apply the rule in Rookes v Barnard [1964] 1 All ER 367 invariably and unhesitatingly and were to award exemplary damages in every case involving government officers or government servants, the result would be appalling."

(j) The reason for awarding exemplary damages was addressed in Rookes v Barnard as follows: "There are certain categories of cases in which the award of exemplary damages can serve useful purpose in vindicating the strength of the law and thus affording a practical justification for admitting into civil law a principle which ought logically to belong to criminal."

(k) In essence, English and Indian case laws recognises that courts on extraordinary facts and circumstances to maintain social discipline and rule of law must take punitive measures by awarding damages for unlawful act. The English courts in the recent case of Ashley v Chief Constable of Sussex Police [2008] 2 WLR 975 HL have gone to say that exemplary damages which is statutorily barred in tortuous claim by virtue of English Law Reform (Miscellaneous Provisions) Act 26 1934, is maintainable if the claim is premised on breach of fundamental guarantees enshrined in the Federal Constitution. This part of the jurisprudence is well captured and articulated by His Lordship David Wong Dak Wah in the case of Datuk Seri Khalid bin Abu Bakar & ors v N. Indra a/p. Nallathamby [W-01(NCVC)(W)-263-07-2013, often referred to Kugan's case High Court citation [2013] 6 CLJ 272].

(q) We would have been minded to award the sum of RM1 million if the plaintiffs had led evidence to justify the Quantum. Taking into consideration the allegation of the state, we take the view it will be more appropriate to award quantum for exemplary damages of RM300,000.00 as was given in the case of Kugan. Appeal No.52 [45] At the Court of Appeal, the Appellants' appeal in this appeal was only in relation to the damages for false imprisonment and misfeasance in public office and exemplary damages. The Appellants contended as they did in the High Court, that there is nothing in section 7 or section 8 of the CLA that suggests a claim can be made for damages for the tort of misfeasance in public office. As for the claim for exemplary damages, the Appellants submitted that subsection 8(2) of the CLA clearly disallows such damages. [46] Only the $ 2^{\mathrm{n d}} $ Defendant appealed against the finding of liability by the High Court. [47] After having heard the parties, the Court of Appeal allowed the appeal by the Appellants in part and ordered that the award for false imprisonment be set aside. The Court of Appeal however affirmed the rest of the award. [48] As for the $ 2^{\mathrm{nd}} $ Defendant's appeal, the Court of Appeal allowed the appeal and reduced the liability of the $ 2^{\mathrm{nd}} $ Defendant to 45%. [49] On the issue of misfeasance in public office, the Court of Appeal held as follows:

From what we have stated above, we find that the learned Judge's findings were based on established evidence and are far from perverse. Common sense and common decency demand that a full public inquiry be initiated which would have served both the private and public interests in a manner demanded in a civil society. That said we find that the use of the phrase 'cover up' by the learned Judge to be inappropriate as it implies a criminal intent where in this case we find none on the part of the 1st and 3rd Defendants. We find however that the Judge's findings do lead to the irrefutable conclusion that the 1st and 2nd and 3rd Defendants had breached their duty of care to the deceased.

In summary, we say that this willful disregard to ensure that the truth behind the death of the deceased is made known together with other disputed evidence set out above are enough to satisfy a case of public misfeasance. It is also our view that there has been reckless indifference to the illegal act of the 2nd Defendant. We further find that the evidence proffered by the Defendants had not rebutted the evidence set out above by us and that of the learned judge. In other words, the conduct of the Defendants fell far short of the SOP which we say must require more disclosure than what had happened in this case. [50] On the issue of exemplary damages, the Court of Appeal said:

That said, we see no reason why we should not adopt the approach of the House of Lords in the circumstances of this case. Accordingly we find that where there is a breach of a constitutional right by a public authority, section 8(2) of the Civil Law Act does not apply and the Courts cannot be barred from awarding exemplary damages. Our view is fortified by the fact that in 1956, the year in which the Civil Law Act was legislated, there was no Federal Constitution. 75 We further say that the public tort of public misfeasance had not been developed yet in 1956 and it can be said that when the Civil Law act was enacted, it was only in respect of private tortious actions. Hence we are of the view that section 8 of the Civil Law Act only applies to private torts in so far as the prohibition of awarding exemplary damages. 76 There is another reason for our decision. In Malaysia, we do not have an ombudsman or an Independent Police Complaint and Misconduct Commission despite the recommendation of a Royal Commission for Police Reform (2005). In the case before us, the intention of the Plaintiff is clear and that is to hold the Defendants responsible and accountable for their unlawful action as public officers. It is not just a case of merely being compensated, it is more and that is to ensure that the public officials who are supposed to be the guardians of the Constitution are brought to task and that such unlawful actions should not happen again. Remand prisoners are innocent until convicted in a Court of law and like other citizens they are entitled to their basic human rights during their lawful detention ...

As to whether exemplary damages should be awarded, we see no clearer case as in this case where it must be given to reflect the severity of the breach ... Any reasonable tribunal in our view would conclude that this is an appropriate case to award exemplary damages. Not to award such exemplary damages would in our mind be 'not attending to the mutilation with the appropriate care'.

As for the quantum of the exemplary damages, there is also no reason to disturb the award granted by the Learned Judge as it commensurate with the actions of the Defendants. [51] In dealing with the issue of misfeasance in public office, the Court of Appeal found that the $ 2^{\mathrm{nd}} $ Defendant could not have been responsible for the acts after Kugan's death. The Court of Appeal also noted that the High Court had failed to consider the involvement of other police officers in the events leading to Kugan's death and these officers had, as admitted by the Appellants, been assigned to desk duties as a form of punishment. Appeal No. 53 [52] Aggrieved by the decision of the High Court, the Appellants in this appeal appealed to the Court of Appeal in respect of the awards for dependency claim (RM192,000.00), general damages (RM100,000.00) and exemplary damages (RM100,000.00). [53] The Court of Appeal reduced the amount awarded for dependency claim and set aside the award for exemplary damages. These do not relate to the appeal before us. [54] In relation to the award for general damages, the Appellants submitted before the Court of Appeal that the general damages awarded to the Plaintiff (for pain and suffering arising from the loss of his son, Uthayachandran) were not claimable and not provided for under section 7 of the CLA. Hence, the learned judge erred in law in ordering such general damages to be paid. [55] The Court of Appeal, however, affirmed the award of general damages. The Court of Appeal held as follows: “[34] ... Adalah fakta yang tidak dapat dipertikaikan bahawa dengan kematian simati telah terputus hubungan kasih sayang “bapa-anak” antara plaintiff dan simati. Tidak syak lagi plaintiff akan mengalami “pain and suffering, loss of “consortium” (?), bereavement and trauma”. Ini adalah tindak balas emosional biasa dan dijangkakan akibat dari kematian anaknya tersebut. Perlu diambil perhatian bahawa gantirugi yang dituntut ini tidak mempunyai apa-apa kaitan dengan kehilangan faedah yang selama ini telah dinikmati oleh plaintiff tetapi adalah berkaitan dengan isu untuk mendapatkan pampasan terhadap perasaan sedih, dukacita, sugul, kehilangan dan terputusnya kasih sayang akibat dari kematian orang tersayang secara mengejut. [36] Pada hemat kami, gantirugi am sebanyak RM100,000.00 yang diawardkan oleh hakim bicara bijaksana adalah agak tinggi. Walau bagaimanapun, ia tidaklah merupakan satu amaun yang berlebihan atau melampau (manifestly excessive) yang memerlukan campurtangan kami. Pengawardan gantirugi adalah merupakan budi bicara hakim bicara dan beliau adalah tidak terikat kepada kaedah atau peraturan tetap tertentu dan keputusan dalam kes-kes lain hanya merupakan panduan semata-mata ... [37] Kami telah memberi pertimbangan mendalam terhadap tuntutan gantirugi ini dan pada pandangan kami demi keadilan dan dalam melaksanakan budi bicara kehakiman adalah wajar hakim bicara bijaksana mengawardkan gantirugi am sebanyak RM100,000.00 tersebut. AT THE FEDERAL COURT LEAVE QUESTIONS [56] The Appellants applied to this Court for leave to appeal against the decisions of the Court of Appeal in all 3 cases. Leave was granted on one question of law for Appeal No. 36 and one for Appeal No. 53. For Appeal No. 52 leave was granted for three questions of law. However, at the commencement of learned Senior Federal Counsel's submissions before us during the hearing of the appeals, the third question was withdrawn. We will set out the questions as we deal with them later. SUBMISSIONS APPEAL NO.36 Leave Question [57] The question of law (which we will refer to as Leave Question (1) after this) for which leave was granted for Appeal No. 36 is-

(a) Attorney General of Trinidad and Tobago v Romanoop [2006] 1 AC 328 ("Romanoop");

(b) Merson v Cartright and Another [2006] 3 LRC 264 ("Merson");

(c) Ashley v Chief Constable of Sussex Police [2008] 2 WLR 975. ("Ashley"). [65] Learned Senior Federal Counsel submitted, for the Appellants, that the Court of Appeal's reliance on the three cases was misplaced as Romanoop and Merson deal with breach of constitutional rights for which the Constitution of Trinidad and Tobago and the Constitution of the Bahamas, respectively, grant jurisdiction to award remedies for infringement of constitutional rights. Similar provisions do not exist in the Federal Constitution. In Ashley, a claim was made for damages for several alleged tortious acts, including negligence and false imprisonment. The decision in that case was in respect of an application to strike out remaining causes of action upon an admission of liability and agreement to have damages assessed only for negligence and false imprisonment. The House of Lords dismissed the application for striking out. Hence, according learned Senior Federal Counsel, what was said by Lord Scott in that case on vindicatory damages being the appropriate damages when duties have been breached was merely obiter. [66] As regards Leave Question (3), it was submitted by learned Senior Federal Counsel, that acts occurring after the death of the deceased do not give rise to causes of action which vest in the deceased and survive for the benefit of the estate in a claim brought under section 8(2) of the CLA. Hence, argued learned Senior Federal Counsel, the award of damages of RM100,000.00 for misfeasance in public office which had taken into account acts occurring post-death must be reduced to RM50,000.00, being a fair and reasonable amount for acts committed against the deceased before his death. Submissions by the Respondent [67] For Leave Question (2), the Respondent submitted that the Court of Appeal was correct in its interpretation of section 8 of the CLA that the proviso does not prohibit the courts from awarding exemplary damages for breach of constitutional rights by a public authority. [68] The Respondent submitted that the Court of Appeal was correct when it held that section 8 of the CLA is a pre-Merdeka law and therefore should be interpreted in a manner that does not prohibit the courts from awarding exemplary damages for breach of constitutional rights. [69] The Respondent also submitted that the Court of Appeal had rightly exercised its power pursuant to Article 162 of the Federal Constitution in order to give a harmonious construction between section 8 of the CLA and the Federal Constitution. According to the Respondent, the Court of Appeal correctly held that the restriction on exemplary damages in section 8 should be restricted to private tort claims and ought not to apply to breaches of constitutional rights and public intentional torts such as misfeasance in public office. It would lead to absurd and unjust outcomes, argued the Respondent, if section 8 of the CLA were to be applied without any modification. [70] For Leave Question (3), the Respondent submitted that the further acts and omissions of the Appellants after the death of the deceased were simply a continuum of the misfeasance prior to his death. It was submitted that it would be wholly artificial to treat those acts and omissions post death as a separate public misfeasance tort when they all stem from the death in custody of the deceased. Hence, according to the Respondent, the argument of the Appellants that some of the acts were post-death and the award should be reduced to RM50,000.00 is without basis. [71] Therefore, submitted the Respondent, the Court of Appeal was right to award exemplary damages and damages for the tort of misfeasance in public office. APPEAL NO. 53 Leave Question [72] The question of law (which we will refer to as Leave Question (4) after this) for which leave was granted for Appeal No. 53 is-

(a) damages for loss of support;

(b) reasonable expenses incurred resulting from the death;

(c) funeral expenses; and

(d) damages for bereavement. [74] There is clearly no provision to enable an award to be made in favour of a dependant for pain and suffering. Hence, in awarding the sum of RM100,000.00 for pain and suffering to the Respondent the Court of Appeal had introduced an additional item of compensation which is not within the contemplation of the legislature in enacting section 7 of the CLA. Submissions by the Respondent [75] The Respondent submitted that the fact that death occurred as a result of the Appellants' wrongful acts means that the Court can award damages for pain and suffering. [76] The Respondent submitted that subsection 7(3) of the CLA states what the general objective of damages for dependants is. They are to compensate the dependants for "any loss of support suffered together with any reasonable expenses incurred as a result of the wrongful act, neglect or default". [77] The Respondent further submitted that the learned Judge had exercised reasonable judicial discretion when arriving at the decision after having considered the fact that the Respondent's son's death was caused by the Appellants' weakness and negligence. [78] Hence, contended the Respondent, the learned Judge had not erred in law when the learned Judge awarded general damages in the sum of RM100,000.00 for pain and suffering. OUR ANALYSIS The law [79] As submitted by learned Senior Federal Counsel, at common law, the death of a person is not considered an injury and personal actions do not survive the death of the injured person, nor can any claim be brought consequent to such death. This position was mitigated by statutory provisions in England and similar statutory provisions were incorporated into various statutes in this country. [80] The CLA, which consolidates the provisions of the various statutes, incorporates those statutory provisions in Part III of the Act. [81] When tabling the Civil Law Bill for its second reading on 15/05/1956, the Attorney-General said, in relation to Part III of the Bill: The second point is with regard to Part III of the Bill which deals with the law relating to fatal accidents and the survival of causes of action. I do not think it is necessary to say very much about that. The English common law, in the days of its rigour, made no provision at all for the survival of a right of action when a person dies. You could not get compensation for the death of another, and it followed that if you must knock someone down in the streets, it would be much better actually to kill him outright rather than to injure him... They have amended the law in England on that point and we have amended our law many years ago in the Federated Malay States and in the Settlements to enable actions to be brought on behalf of dependants for the loss they suffer as a result of the death of a person on whom they were dependent. And also actions now may be brought by a personal representative, who is able to claim those damages which the dead person would have been able to claim if he had not been dead. Among the other results of that amendment is that it is now common to claim damages for loss of expectation of life and the Judges have been presented with the task over the last 10-15 years, in England and here, of trying to assess how much a life is really worth. The result in each case seems to depend very much on the views taken by the Judge on the value of his own life. [82] This Court in Sambu Pernas Construction & Anor v Pitchakkaran [1982] 1 MLJ 269 ("Sambu Pernas") explained the legal position with regard to sections 7 and 8 of the CLA as follows: At common law the death of a person gives rise to two principles. The first is that the death of any person is not a civil wrong. Therefore no action can be founded on it although death may result in pecuniary losses or damages to the deceased's spouse and children. Lord Ellenborough C.J. in Baker v. Bolton ruled that "in a civil court the death of a human being could not be complained of as an injury." The second principle was that when a person died any cause of action which was vested either in his favour or against him at the time of death was buried with him. In other words the cause of action did not survive the death: "actio personalis moritur cum persona". The first principle which regarded death as not giving rise to any cause of action was rectified by section 1 of the Fatal Accidents Acts 1846 to 1959, popularly known as Lord Campbell's Act whilst the second principle which dealt with the non-survival of the cause of action was rectified by the Law Reform (Miscellaneous Provisions) Act, 1934. The provisions of these two UK statutes are now incorporated in sections 7 and 8 of our Civil Law Act, 1956. Had it not been for sections 7 and 8 of the Civil Law Act it is clear that the respondent could not have the right to bring the suit, and having acted under these sections and in particular section 7, his case must stand and fall on the basis of these sections. [83] In other words, as the right of the dependants of a deceased person and the estate of a deceased person to claim for damages is conferred by statute, that claim must be determined strictly within the confines of the statute. [84] Part III of the CLA is reproduced in full below:

(1) Whenever the death of a person is caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death has been caused under such circumstances as amount in law to an offence under the Penal Code [Act 574].

(i) in assessing the damages there shall not be taken into account—

(a) any sum paid or payable on the death of the person deceased under any contract of assurance or insurance, whether made before or after the coming into force of this Act;

(b) any sum payable, as a result of the death, under any written law relating to employees' provident fund;

(c) any pension or gratuity, which has been or will or may be paid as a result of the death; or

(d) any sum which has been or will or may be paid under any written law relating to the payment of any benefit or compensation whatsoever, in respect of the death;

(a) take into account that where the person deceased has attained the age of fifty five years at the time of his death, his loss of earnings for any period after his death shall not be taken into consideration; and in the case of any other person deceased, his loss of earnings for any period after his death shall be taken into consideration if it is proved or admitted that the person deceased was in good health but for the injury that caused his death and was receiving earnings by his own labour or other gainful activity prior to his death;

(b) take into account only the amount relating to the earnings as aforesaid and the Court shall not take into account any prospect of the earnings as aforesaid being increased at any period after the person's death;

(c) take into account any diminution of any such amount as aforesaid by such sum as is proved or admitted to be the living expenses of the person deceased at the time of his death;

(d) take into account that in the case of a person who was of the age of thirty years and below at the time of his death, the number of years' purchase shall be 16; and in the case of any other person who was of the age range extending between thirty one years and fifty four years at the time of his death, the number of years' purchase shall be calculated by using the figure 55, minus the age of the person at the time of death and dividing the remainder by the figure 2.

(a) of the spouse of the person deceased; and

(b) where the person deceased was a minor and never married, of his parents.

(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 apart from the other or to any claim for damages on the ground of adultery.

(a) shall not include any exemplary damages, any damages for bereavement made under subsection 7(3A), any damages for loss of expectation of life and any damages for loss of earnings in respect of any period after that person's death;

(b) in the case of a breach of promise to marry shall be limited to such damage, if any, to the estate of that person as flows from the breach of promise to marry; and

(c) where the death of that person has been caused by the act or omission which gives rise to the cause of action shall be calculated without reference to any loss or gain to his estate consequent on his death, except that a sum in respect of funeral expenses may be included.

(a) were pending at the date of his death; or

(b) are taken not later than six months after his personal representative took out representation.

From the above passages, it can be seen that the learned Judge had applied the common law to the factual matrix as he found them and seen fit not to be bound by the provision in section 8(2) in awarding exemplary damages. It would not be wrong to say that the learned Judge saw the injustice which the deceased had suffered and justice dictated that an award of exemplary damages is required. The learned Judge also relied on the judgement of Borhan's case (supra). [108] Both the High Court and the Court of Appeal appeared to have overlooked the fact that Borhan's case was not a case dealing with a claim under section 7 or 8 of the CLA. It stands to reason therefore that the Court of Appeal in Borhan's case did not "state directly or impliedly that the court cannot award exemplary damages or damages for false imprisonment or misfeasance when there is claim for dependency pursuant to s.7 or a claim under s.8 of the Civil Act 1956". The claim in Borhan's case was made by Abd Malek himself, the very person who claimed to have been falsely imprisoned, not by his executor for the benefit of his estate. We do not see how the decision in Borhan's case can be relevant in a claim under section 8 of the CLA. [109] After quoting the passage in the High Court's judgement dealing with Borhan's case, the Court of Appeal proceeded to refer to Articles 5 and 8 of the Federal Constitution and said:

In interpreting any statute, it is our considered view that the Courts must always be vigilant to any interpretation which may dilute the importance of any constitutional rights of citizens in this country. The significance of any breach of any basic rights provided for in the Federal Constitution cannot be viewed in the same manner as a breach of say 'traffic law' for the simple reason that there is no greater breach than that of a breach of a constitutional right. Further in this country we practise constitutional supremacy as opposed to parliamentary supremacy. Hence it is incumbent on the Courts when interpreting any statutes, resort must be made to the Federal Constitution when appropriate to do so [sic].

Such approach found favour in the case of Ashley v Chief Constable of Sussex Police [2008] 2 WLR 975 HL where the House of Lords dealt with provisions similar to that of section 8 of the Civil Law Act. ..

From the grounds of their Lordships, it is quite clear that they saw no impediment in awarding exemplary damages despite the express prohibition of awarding exemplary damages in an estate claim when they consider that prohibition in the light of fact that the claim of the Ashleys was for damages stemming from a breach of a right provided for in the Human Rights Act 1998 which Act is the consequence of the European Convention for the Protection of Human Rights and Fundamental Freedoms. His Lordship equated that statutory right to be a constitutional right by virtue of the connection or link between the Human Rights Act and European Convention for the Protection of Human Rights and Fundamental Freedoms. And such equation was done despite the fact that there is no written Constitution in England which practises Parliamentary supremacy.

That said, we see no reason why we should not adopt the approach of the House of Lords in the circumstances of this case. Accordingly we find that where there is a breach of a constitutional right by a public authority, section 8(2) of the Civil Law Act does not apply and the Courts cannot be barred from awarding exemplary damages. Our view is fortified by the fact that in 1956, the year in which the Civil Law Act was legislated, there was no Federal Constitution.

We further say that the public tort of public misfeasance had not been developed yet in 1956 and it can be said that when the Civil Law Act was enacted, it was only in respect of private tortious actions. Hence we are of the view that section 8 of the Civil Law Act only applies to private torts in so far as the prohibition of awarding exemplary damages. [110] There appears to be some confusion as to the true position of the statement by Lord Scott of Foscote in Ashley. As we have mentioned above, at no time did Lord Scott advocate the award of exemplary damages. His Lordship was advocating (obiter, we must add) the award of vindicatory damages for breach of right. [111] The House of Lords in Ashley did not decide that vindicatory damages should be awarded. Their Lordships certainly made no decision on exemplary damages. [112] The House of Lords in Ashley was dealing with, in the words of Lord Scott himself, "an interlocutory appeal in which your Lordships must decide whether a civil case of assault and battery should be permitted to progress to trial". [113] Hence, we are of the view that the Court of Appeal and the High Court erred in treating Lord Scott's statement as a decision of the House of Lords permitting the grant of exemplary damages in a claim made under the UK Law Reform (Miscellaneous Provisions) Act. [114] We need to add that a 9-member bench of the House of Lords in the case of Lumba (WL) v Secretary of State for the Home Department [2011] UKSC 12 dealt at great length with the issue of vindicatory damages. The majority in that case did not think that the concept of vindicatory damages should be introduced into the law of tort, with Lord Dyson even equating such introduction as letting "an unruly horse loose on our law". [115] We shall say no more as the appeals before us do not deal with vindicatory damages, and vindicatory damages although claimed in Appeal No. 52 were not awarded by the High Court. There was no appeal from that decision not to grant vindicatory damages. [116] The context of the decisions of the Privy Council in Romanoop and in Merson appears to have also been misunderstood. Both of those cases arose from applications for redress made directly to the High Court under the provisions of the Constitution of Trinidad and Tobago, and the Supreme Court under the provisions of the Constitution of the Bahamas, respectively. Our Federal Constitution, unfortunately, does not confer upon the courts the same or similar jurisdiction and powers. [117] Subsections 14(1) and (2) of the Constitution of Trinidad and Tobago read as follows:

(1) For the removal of doubts it is hereby declared that if any person alleges that any of the provisions of this Chapter has been, is being, or is likely to be contravened in relation to him, then without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for redress by way of originating motion.

(a) to hear and determine any application made by any person in pursuance of subsection (1); and

(b) to determine any question arising in the case of any person which is referred to it in pursuance of subsection (4), and may, subject to subsection (3), make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing, or securing the enforcement of, any of the provisions of this Chapter to the protection of which the person concerned is entitled. [118] The Privy Council in Romanoop made it clear that the application in that case was brought before the High Court under the provisions of subsections 14(1) and (2) of the Constitution. It must be noted that subsection 14(1) allows such application to be made "without prejudice to any other action with respect to the same matter which is lawfully available". Provisions equivalent to sections 7 and 8 of our CLA are available in Trinidad and Tobago under the Compensation for Injuries Act and section 27 of the Supreme Court of Judicature Act of that jurisdiction. [119] The Constitution of the Bahamas contains, in paragraph (1) of Article 28 provisions similar to section 14 of the Constitution of Trinidad and Tobago. In Merson, the issue that came before the Privy Council was whether the award for infringement of Merson's constitutional rights could stand under the proviso to paragraph (2) of Article 28 as he was already awarded damages for tort. Paragraphs (1) and (2) of Article 28 of the Constitution of the Bahamas read as follows:

(1) If any person alleges that any of the provisions of Articles 16 to 27 (inclusive) of this Constitution has been, is being of is likely to be contravened in relation to him then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the Supreme Court for redress.

(a) to hear and determine any application made by any person in pursuance of paragraph (1) of this Article;

(b) to determine any question arising in the case of any person which is referred to it in pursuance of paragraph (3) of this Article, and may make such orders, issue such writs and give such directions as it may consider appropriate for the purpose of enforcing or securing the enforcement of any of the provisions of the said Articles 16 to 27 (inclusive) to the protection of which the person concerned is entitled: Provided that the Supreme Court shall not exercise its power under this paragraph if it is satisfied that adequate means of redress are or have been available to the person concerned under any other law. [120] The Privy Council held that damages for breach of constitutional rights could be awarded under Article 28. [121] As our Federal Constitution does not have provisions similar to those utilised in Romanoop and Merson, a claimant has to look elsewhere for redress. The only law available is the CLA with its limitations, including the bar in section 8 to the grant of exemplary damages. [122] As mentioned in Sambu Pernas, had it not been for "sections 7 and 8 of the Civil Law Act it is clear that the respondent could not have the right to bring the suit, and having acted under these sections and in particular section 7, his case must stand and fall on the basis of these sections." [123] Our answer to Leave Question (2) is therefore in the affirmative. Leave Question (3)