Joseph a/l Anthony v Dr Muhamad Arif bin Mohamad Rasat & Ors

Appellant(s): Joseph A/L Anthony

Respondent(s):

• Dr Muhamad Arif Bin Mohamad Rasat
• Pengarah Hospital Langkawi (Dr Selahuddeen Bin Abdul Aziz Pada Masa Yang Material)
• Pengarah Jabatan Kesihatan Negeri Kedah (Dr Haji Marzukhi Bin Md Isa Pada Masa Yang Material)
• Sarjan Amran Bin Ahamad Sirat
• Ketua Polis Negara (Tan Sri Musa Hassan pada semua masa yang material)
• Kerajaan Malaysia

• YA Dato' Collin Lawrence Sequerah
• YA Dato' Faizah Binti Jamaludin
• YA Datin Paduka Evrol Mariette Peters

• The deceased, a medical doctor on duty in Langkawi, was found dead in his quarters in 2010; the first respondent, a medical officer, conducted the first post-mortem which recorded the cause of death as "unascertained".
• Years later, the deceased's body was exhumed pursuant to a court order and a second post-mortem was conducted, which the appellant contended revealed serious deficiencies in the first post-mortem, including failure to examine the heart.
• The appellant, as administrator of the deceased's estate, sued the pathologist, hospital and health department directors, the investigating police officer, and the Government for negligence and misfeasance in public office; the High Court dismissed the claim after full trial.

• Whether the appellant, suing solely in his capacity as estate administrator under sections 7 and 8 of the Civil Law Act 1956, could maintain the claim where no cause of action had vested in the deceased before his death and the death itself was not caused by the respondents.
• Whether the pathologist and the investigating officer owed a duty of care in negligence to the appellant (applying the Caparo tripartite test of foreseeability, proximity and fair-just-reasonable policy considerations), and whether the claim was time-barred under section 2(a) of the Public Authorities Protection Act 1948.
• Whether the elements of misfeasance in public office (per Three Rivers DC v Bank of England and Tony Pua Kian Wee v Government of Malaysia) were made out against the pathologist or investigating officer, and whether the Government could be vicariously liable under sections 5 and 6 of the Government Proceedings Act 1956.

• The Court of Appeal held that the appellant, suing only as estate administrator, could not rely on sections 7 and 8 of the Civil Law Act 1956 since no cause of action had vested in the deceased prior to death and the death was not caused by any act or omission of the respondents.
• Applying the Caparo test, the Court found no duty of care was owed by the pathologist (who was statutorily obliged under sections 330–331 of the Criminal Procedure Code to conduct the autopsy, with no proximity to or reliance by the appellant) nor by the investigating officer (following Alexandrou v Oxford and Zulkiflee bin SM Anwar Ulhaque v Arikrishna Apparau), and in any event the claim against the pathologist was time-barred under the Public Authorities Protection Act 1948.
• The Court held the tort of misfeasance in public office was not established against either respondent absent evidence of bad faith, targeted malice or reckless indifference, and since no personal liability attached to any public officer, no vicarious liability could arise against the Government under the Government Proceedings Act 1956; the appeal was dismissed with no order as to costs.