5 Things About Estate Claims for Death In Custody Cases
1. Barred from claiming for exemplary damages
Section 8(2)(a) of the Civil Law Act 1956 provides the following:
“(2) Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person:
(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;” (Emphasis mine)
In Ketua Polis Negara & Ors v Nurasmira Maulat bt Jaafar & Ors (minors bringing the action through their legal mother and next friend Abra bt Sahul Hamid) and other appeals  3 MLJ 184, the majority of the Federal Court held that Section 8(2) of the Civil Law Act 1956 which bars the awarding of exemplary damages in an estate claim is applicable where the death of the deceased is as a result of a breach of the deceased’s constitutional right to life.
The decision in Nurasmira (supra) on Section 8(2) of the Civil Law Act 1956 was subsequently affirmed by the Federal Court in Koperal Zainal bin Mohd Ali & Ors v Selvi a/p Narayan (joint administrator and dependant of Chandran a/l Perumal, deceased) & Anor  3 MLJ 365 (“Selvi Narayan”).
2. Can be awarded aggravated damages
In Selvi Narayan, although the Federal Court was of the view that the estate was barred from claiming exemplary damages, the Federal Court went on to decide that the estate could be awarded aggravated damages instead:
“… punishment can and ought to be meted out under aggravated damages, which the respondents had also specifically prayed for in their statement of claim. I say this because firstly, from its very nature, aggravated damages is to compensate the victim or as in this case, his estate for the unacceptable behaviour of the appellants.
… the respondents in this case should be entitled to be compensated with aggravated damages which amount must reflect the sufferings of the deceased and at the same time the sheer abhorrence of the court against the negligent conduct of the appellants, even though the degree of its seriousness is not on the same footing as other reported cases where the deaths of the detainees were the result of physical abuse by their custodians.” (Emphasis mine)
3. Could possibly claim for damages for pain and suffering
In Janagi a/p Nadarajah (joint estate administrator and dependent of Benedict a/l Thanilas, deceased) & Anor v Sjn Razali bin Budin & Ors  MLJU 2023, the High Court awarded the Plaintiffs (who were the joint administrators of the Deceased’s estate) RM50,000.00 for the pain and suffering endured by the Deceased prior to his death.
The High Court referred to damages for pain and suffering awarded in road accident cases as a guide.
4. Must be initiated within 36 months from the act, neglect or default complained of
Section 2 of the Public Authorities Protection Act 1948:
“Where, after the coming into force of this Act, any suit, action, prosecution or other proceeding is commenced in the Federation against any person for any act done in pursuance or execution or intended execution of any written law or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such written law, duty or authority the following provisions shall have effect:
(a) the suit, action, prosecution or proceeding shall not lie or be instituted unless it is commenced within thirty-six months next after the act, neglect or default complained of or, in the case of a continuance of injury or damage, within thirty-six months next after the ceasing thereof;” (Emphasis mine)
5. Can be brought together with a dependency claim
Section 8(5) of the Civil Law Act 1956 provides that:
“The rights conferred by this section for the benefit of the estate of deceased persons shall be in addition to and not in derogation of any rights conferred on the dependants of deceased persons by section 7 and so much of this section as relates to causes of action against the estates of deceased persons shall apply in relation to causes of action under the said section as it applies in relation to other causes of action not expressly excepted from the operation of subsection (1).” [Emphasis mine]
This legal proposition was recognised by the High Court in Janagi a/p Nadarajah (joint estate administrator and dependent of Benedict a/l Thanilas, deceased) & Anor v Sjn Razali bin Budin & Ors  MLJU 2023.
Both claims were also brought together in Syed Mohamed Nur bin Ali (executor and dependant of Syed Mohd Azlan bin Syed Mohamed Nur, deceased) v Weddrin bin Mojingkin & Ors  9 MLJ 639.