Court awards Bersih 3 protester RM40k for right eye injury

The High Court in Kuala Lumpur today awarded RM40,000 to a 32-year-old protester at the Bersih 3 rally after a tear gas canister fired by the police hit his right eye causing him to lose sight.

Judicial commissioner Mohd Firuz Jaffril, however, slashed the award by 30 percent due to negligence by Asrul Wadi Ahmad for not dispersing from the protest area when required to do so by the authorities.

As a result, the damages will only amount to RM28,000.

Justice Firuz ordered RM10,000 in damages for a laceration to Asrul's eye, another RM10,000 for nose secondary blunt force trauma, and RM20,000 for permanent damage on the right eye.

“The injury was not challenged specifically. (Based on) the Kuala Lumpur Hospital report, there is laceration wound at an outer angle of right eye extending to iris with severely swollen right eye upper lid.  

“The award should be deducted by 30 percent owing to plaintiff's negligence," he said.

Justice Firuz also ordered the police and government to pay RM30,000 costs.

However, the judge did not allow special damages, or aggravated and exemplary damages, as Asrul's lawyer had failed to show evidence on those claims. 

Asrul's partial claim was also dismissed as he failed to name the tortfeasor who caused the injury.

During the hearing of the case, Justice Firuz went to the site of the incident twice to make personal observations.

In the RM10 million suit, the mechanical engineer from Kepala Batas had named Supt Zahari Mohd Yusoff, ASP Alekzandra Dawam, Dang Wangi district police chief, the Royal Malaysian Police and the government as respondents.

The 32-year-old had previously testified at the Suhakam inquiry in 2012, that as a result of the injury he became clinically blind.

In his judgment, Justice Firuz distinguished his decision with the case of Aleyasak Hamid, a participant of the first Bersih rally in 2007.

“I find that this case mirrors the facts in the case of the Malaysian government against Ambiga Sreenevasan, which was decided by the Court of Appeal. The Court of Appeal judges found that at times it is difficult to ascertain who are the actual wrongdoers to abide by the provision under Section 5 and 6 of the Government Proceedings Act,” the judge said.

Justice Firuz said the defence in their evidence did not deny that the FRU fired the tear gas at the participants.

“In fact, ASP Alekzandra who is the troop leader gave the order to fire the tear gas horizontally (tembakan secara mendatar) at the protesters.

“ASP Alekzandra also testified that he ordered 20 tear gas canisters to be fired at Jalan Tun Perak. The defendants, however, denied firing directly at the protesters,” he said.

In the event of 20 tear gas canisters being fired, the judge said it was impossible for the plaintiff or defendants to ascertain who the shooter who caused the injury was, despite a discovery process being made.

“Although the issue of who fired the tear gas is important, the issue as to who made the order is also important. They acted on ASP Alekzandra's instructions and that the FRU was about 80 to 100 metres from the protesters. It meant that ASP Alekzandra was a tortfeasor who was responsible.

“As Supt Zahari (the first defendant) was the officer in charge of the FRU unit during the incident, he is held vicariously liable,” he said. - Mkini