31 October, 2019
Noor Azman bin Azemi v Zahida bt Mohamed Rafik Federal Court [2019] 3 MLJ 141
Facts
The respondent, Zahida bt Mohamed Rafik (“Zahida”), was an actress and the appellant, Noor Azman bin Azemi (“Azman”), was her personal driver. Zahida had instructed Azman to deposit RM200,000 in cash and a cheque to the amount of RM120,000 into her bank account. She was subsequently unable to contact Azman and lodged a police report to the effect that Azman had run away with her cash.
After making the police report and while leaving the police station, she was approached by reporters who wanted to know the reason for her visit to the police station. She informed the reporters that a police report was lodged against Azman and told them the contents of the police report. This was subsequently picked up by Harian Metro which published the contents of the police report. Azman then filed a claim for defamation against Zahida.
In rejecting Zahida's defence of absolute privilege, the High Court Judge found that she failed to give any reasonable excuse that necessitated the regurgitation of the police report and “ … pandering to the press” was not an acceptable reasonable excuse.
However, the Court of Appeal reversed the High Court's decision by allowing Zahida's counterclaim and dismissing Azman's claim. Hence, the present appeal.
Decision of the Federal Court
Following the decision of the Federal Court in Lee Yoke Yam v Chin Keat Seng [2013] 1 MLJ 145 it has been established that, for public policy considerations, absolute privilege is accorded to statements made in a police report irrespective of whether there is an element of malice on the part of the complainant. Therefore, an action in defamation will not lie against a maker of a police report.
However, the question that arises in the case being reported is whether subsequent publication of a police report (an absolutely privileged document) enjoys the protection of absolute privilege.
The Federal Court held that absolute privilege would NOT attach to the subsequent publication of the contents of the police report to the public at large save where the contents were made in or in connection with judicial or quasi-judicial proceedings.
Thene Arulmani Chelvi a/p Arumugam v London Weight Management Sdn Bhd (Court of Appeal) [2019] 1 LNS 1185
Facts
Thene Arulmani Chelvi a/p Arumugam (“Thene”), a lady of 43 years of age, undertook and paid for a package of services known as “Lavender Lipo Management Treatment” from London Weight Management Sdn Bhd (“LWM”), a company specialising in “slimming services”.
Upon signing the package, Thene was given a box of coffee and oat drinks which were to be consumed and a diet meal which she was required to follow strictly. Upon consumption of the first coffee sachet, Thene claimed that, amongst others, she fell sick and that her tongue became “stiff and swollen” and she had difficulty swallowing/chewing and was unable to talk properly. Thene further alleged that she reacted badly to the various treatment that she underwent and her skin broke out in ulcers, sores and redness. She had, amongst other effects, palpitations, weakness and constant pain.
Thene sued LWM in the High Court for suffering loss and damage caused by the negligence of LWM.
The claim was dismissed after a full trial.
Decision of the Court of Appeal
On appeal, the claim was allowed and judgment was entered against LWM. The Court of Appeal found that, contrary to the High Court’s findings, Thene had successfully proved the existence of a duty of care owed by LWM, a breach of that duty and damages as a result of the breach. The Court of Appeal also found that clause E in the slimming consultation card which precluded any party, including Thene, from enforcing his/her rights under the contract, is void under section 29 of the Contracts Act 1950.
Amongst other, the Court of Appeal interestingly held that:
“It is disquieting if not troubling to accept the Respondent’s proposition that because it is a slimming and not medical centre, it does not owe any duty of care to ensure that its customers, including the Appellant, are suitable, able or even safe to undertake any of their treatments. It cannot say that because it is a slimming centre, it is not able to conduct or is not responsible for making some inquiry into or about the health of the intending customer before it provides the slimming treatments or even design a combination or package of treatments suitable for any customer.”
Considering that one of the treatments undertaken by Thene involved the ingestion of supplements or other concoctions, the Court of Appeal found that such an intrusive treatment must, in its view, carry a corresponding duty of care to ensure that whatever it provided or recommended is in fact safe and suitable for the customer.
The Court of Appeal was of the view that the discounting of the price for the customised package does not in any way lessen, let alone absolve, LWM from its duty of care to ensure its treatment, as customised, does not harm Thene. LWM is under a duty to warn or alert its customers, regardless of the manner in which the slimming package is drawn up, of any adverse effects that its treatments may bring. More so, if these effects are known to LWM.
The Appeal was allowed and judgment was entered against LWM for negligence.
For further information, please contact:
Ameet Kaur Purba, Partner, Shearn Delamore & Co
ameet@shearndelamore.com
