A three-member bench chaired by Justice Lee Swee Seng ruled that businessman S Thanabalan’s widow, V Santhi, and father, P Vathian, had sufficiently discharged their burden of proof on the totality of evidence.
“We find that the High Court was wrong in its failure to consider the findings of fact by the coroner’s court,” said Lee.
However, the bench affirmed the lower court’s finding that there was no misfeasance in public office.
Lee said an award of aggravated damages was justified on the facts of the case as Thanabalan had been denied timely access to medical attention.
The award was also made due to the deplorable conditions of the lockup which saw Thanabalan detained in a cramped cell with no access to clean water.
“The defendants’ flimsy excuse cannot be accepted as an excuse for the delay (in providing medical care). An award of aggravated damages is to send a strong message of the court’s abhorrence to the defendants’ lackadaisical attitude and negligence,” he added.
Lee who sat with Justices Supang Lian and Azhahari Kamal Ramli, said the award of aggravated damages also included compensation for pain and suffering.
The bench also remitted the matter to the High Court for assessment of damages.
Santhi, 43, and Vathian, 74, were also awarded RM50,000 in costs for the proceedings in the High Court and the Court of Appeal.
Lee, who read the court’s broad grounds of judgment, said the defendants were negligent for failing to send Thanabalan to the hospital as soon as possible.
Thanabalan was only taken to the hospital after he fainted in the lockup at 8.30pm in April 2019, but was pronounced dead upon arrival,” the judge said, adding that the facts showed a two-and-a-half-hour delay on the part of the police.
The defendants also failed to adduce any standard official procedure in evidence to show that only officers specifically assigned to cases involving the Security Offences (Special Measures) Act 2012 (Sosma) were allowed to escort such detainees to hospital.
“The detainee had been under the control of the police. Therefore, the defendants must exercise their discretion accordingly,” he said.
Lee said the defendants’ explanation that they were unable to ferry Thanabalan to a hospital, which was only five minutes away, due to a lack of manpower, was “unreasonable” and could not be accepted.
He said a post-mortem report certified Thanabalan’s cause of death as leptospirosis, which is normally associated with the consumption of food and water infected with the leptospira bacteria found in rat urine.
Lee said there was evidence that the deceased’s cell was infected by the bacteria during his arrest and detention.
The judge also said the cells in the lockup were not functioning properly as the detainees had no access to clean water.
“Clean drinking water was only given three times a day when meals are provided. Therefore, a reasonable inference is to be made as to the deplorable conditions of the cell as leptospirosis can be easily contracted from drinking water from the toilets,” he added.
The judge noted that an inquest held in 2020, which found that the cause of infection was a result of consuming contaminated water, was not challenged by the defendants.
“The fact that the closed circuit television recording was not produced by the defendants would warrant an adverse inference being drawn,” he said.
Santhi filed the action in 2021 on behalf of herself, their two children and her husband’s estate. Vathian is the co-administrator of the estate.
They sought damages, including for bereavement, a dependency claim, and funeral expenses.
Thanabalan was pronounced dead at the hospital, two weeks after he was arrested and held in remand for alleged involvement in a secret society.
Lawyers M Visvanathan, R Karnan and V Sanjay Visvanathan represented Santhi and Vathian, while senior federal counsel Syakimah Ibrahim and federal counsel Ashraf Abdul Hamid appeared for the government.