School teachers, personnel owe students a duty of care, says Apex Court in bullying case

KUALA LUMPUR - The Federal Court asserts that school teachers and similar personnel owe a duty of care to supervise students while they are on school premises.

Federal Court Judge Datuk Mary Lim Thiam Suan said this is for the ultimate purpose of maintaining discipline, safety and wellbeing of the students.

"It goes without saying that schools, residential or otherwise must be safe and conducive for the purposes intended.

"Otherwise, the providers and consumers of such institutions would face considerable difficulties in enrolment, whether of student or teaching faculty," she said in a 20-page written judgment in a bullying case dated March 29.

On Oct 16, last year, the Federal Court upheld a High Court ruling that awarded a victim of bullying who suffered permanent ear damage more than RM600,000 in damages after being bullied at a secondary school in Terengganu on 2015.

Court of Appeal President Tan Sri Abang Iskandar Abang Hashim, alongside Federal Court Judges Lim and Datuk Abdul Karim Abdul Jalil, rendered the ruling, overturning the Court of Appeal's decision that had previously set aside the High Court's verdict.

On April 2, 2017, the boy, who was 14 years old at the time of the bullying incident, filed a lawsuit through his father against five Form Five students of the school, naming them as the first to fifth defendants. The victim is now 23 years old.

Justice Lim in her judgment said, there was ample evidence to prove that these defendants assaulted and battered the victim.

"Each of these five defendants admitted to their culpability when asked direct questions as to whether they had assaulted the appellant. Each of them admitted to "memukul, menampar bahagian pipi plaintif (mangsa) berkali-kali dan menyuruh plaintif duduk dalam keadaan squat” (hitting, slapping the plaintiff's (victim's) cheeks repeatedly and making the plaintiff sit in a squatting position", she said.

Justice Lim also said, the display of posters against bullying, provided by the Ministry of Education, at the premises of the residential school further support the view that bullying was well within the reasonable contemplation of the authorities.

She observed that, as a result, those responsible for overseeing the residential school cannot credibly argue lack of foreseeability.

The judge remarked that "bullying," regardless of its name or form, and irrespective of the perpetrators, sadly persists within what should be our sanctuaries of education.

"There is no distinction between residential or any type of school. The dissemination and display of such posters may even be said to be part of the efforts taken by the authorities to ensure the safety of the students.

"Yet, the discipline of students of all ages remains a necessary part of any education curriculum. Basic values of mutual respect for another must be inculcated in all our young and it should not be left to expensive and unfortunate incidents such as revealed in these appeals to remind us of these values," she added.

The judge said since it was reasonably foreseeable that bullying would occur within the premises of the residential school, and the appellant was indeed bullied in that he was assaulted by his fellow students, it was no longer an issue of non-foreseeability.

She emphasised that the 6th to the 9th defendants (senior assistant for student affairs, the principal, the Education Ministry director-general, and the Malaysian government) bear responsibility for the bullying and physical assault committed by the five students, suggesting that insufficient measures were taken to prevent such abusive acts.

In the lawsuit, the victim claimed that he was physically assaulted, bullied, and attacked by the five senior students, resulting in his right eardrum being ruptured.

The incident on April 26, 2015, resulted in the victim sustaining permanent disabilities and hearing loss, along with severe trauma and emotional distress, necessitating psychiatric treatment.

On Sept 29, 2019, the Kuala Terengganu High Court ruled in favour of the plaintiff and found all the defendants negligent for allowing the bullying to occur in the prefects' dormitory, ordering them to pay RM616,634.20 in compensation.

However, on May 20, 2021, the Court of Appeal overturned the High Court's decision, ruling that the plaintiff failed to prove the liability of the five senior students, and that the other defendants were also not liable for the incident. - BERNAMA