Court rules that the police owe no private law duty of care to the complainants and says the High Court overstepped its jurisdiction by issuing orders on police personnel management and the day-to-day conduct of investigations.
A three-member bench chaired by Justice Zaini Mazlan, with Justices Ong Chee Kwan and K Muniandy, allowed the government’s appeal and set aside all damages, interest and mandatory orders. There was no order as to costs.
Justice Muniandy, who read the broad grounds of judgment, said the police did not owe a private law duty of care to individual complainants or relatives in deciding how investigations should be conducted.
“While law enforcement authorities owe duties to the public at large, this does not automatically translate into a private law duty of care to individual complainants or their relatives,” he said.
He said the High Court erred in treating negligence and misconduct as independent causes of action without satisfying the legal requirements for liability against public authorities.
Muniandy also said the High Court exceeded its jurisdiction by issuing orders on police personnel management and the day-to-day conduct of investigations.
“The supervision and direction of police investigations fall within the executive and prosecutorial functions, and the courts must respect the separation of powers,” he said.
On July 29 last year, the High Court awarded Christina Carolina Gerarda Johanna Verstappen RM500,000 in general damages, RM300,000 in aggravated damages and RM300,000 in exemplary damages, as well as RM100,000 in costs.
It also ordered the inspector-general of police to remove investigating officer Faizal Abdullah from the task force and directed the police to reopen the investigation and submit progress reports to the Attorney-General’s Chambers every three months.
Verstappen filed the suit in November 2020, alleging negligence in the investigation into her daughter’s death.
Smit, 18, was found dead at CapSquare Residence on Dec 7, 2017, after falling from a condominium unit on the 20th floor.
The coroner’s court ruled her death a misadventure in March 2019. The High Court later replaced that verdict with one of death caused by a person or persons unknown.
The Court of Appeal ruled that police remained duty-bound to diligently pursue viable leads.
Senior federal counsel Liew Horn Bing and Nuur Zul Izzati Zulkipli appeared for the government while SN Nair and Wong Guo Jin represented Smit’s mother.
Netherlands deputy ambassador Pieter Blusse was present to follow today’s proceedings.
Nair told reporters he was profoundly disappointed with the decision, saying although judicial precedent was important to prevent a flood of negligence claims against government agencies, it should not give the police and other public authorities free rein to act negligently.
He said the courts remained the last bastion of justice for victims seeking accountability from the state.
Nair said his clients respected the decision and had pursued every available legal avenue with a clear conscience. He said they would consider appealing to the Federal Court, subject to obtaining leave. - FMT
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