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GOVERNMENT OF MALAYSIA & ORS V. JUMAT BIN MAHMUD & ANOR FEDERAL COURT [KUALA LUMPUR] SUFFIAN LP, J, RAJA AZLAN SHAH, FJ, WAN SULEIMAN, FJ [APPEAL ALLOWED.] [Appeal allowed.] JUDGMENT Raja Azlan Shah FJ (delivering the judgment of the Court): On 1 March 1977 we allowed this appeal and said that we would give our reasons at a later date. We now proceed to do so. This appeal raises an important point, and it is the second occasion on which such a question relating to schools has come before our courts. On the first occasion a party of students and teachers of Chung San School, Riam Road, Miri, Sarawak, went on a picnic to Tanjong Lobang, and the deceased (a school girl aged 11 years) while playing a ball game with her friends in waist deep water, suddenly moved into a depression and was drowned. Lee Hun Hoe J (as he then was) in dismissing the case held as a second limb of his judgment that a schoolmaster's duty towards his pupil is the same as that of a careful father, i.e., to take such care of his pupils as a careful father would take of his children (see Chen Soon Lee V. Chong Voon Pin & Ors. [1966] 1 LNS 31. The second occasion concerns this appeal. The facts are short and simple. The plaintiff aged 11 years old was a Standard v. student of Sekolah Dato Kiana Maamor Jalan Range, Seremban. He was injured in his right eye when another pupil, Azmi bin Manan ("Azmi"), celebrated his teacher's momentary inattention in class by pricking the plaintiff's thigh with a pin which produced a shock causing the latter to turn round and his right eye came in contact with the sharp end of the pencil which Azmi was holding. The eye had to be removed subsequently. Azmi said it was an accident. The trial judge agreed that he did not deliberately stab the plaintiff's eye with a pencil. I think the evidence favours such an inference, otherwise the serious injury sustained by the plaintiff would have been immediately noticed. It is in evidence that Azmi was a playful boy and had on previous occasions poked the plaintiff and other boys with a pin or pencil but never in their eyes, and that was done without the knowledge of the form teacher or Mrs. Kenny in whose class the accident occurred. It also never occurred to any pupil to complain of Azmi's abnormal propensity. It is common ground that at the time of the accident Mrs. Kenny had given written work to the class consisting of 40 pupils and it was during the period when she was doing her work at the table that Azmi wandered about pricking a boy sitting next to the plaintiff and also the plaintiff. It was argued before the trial judge that there was lack of supervision in Mrs. Kenny's class thus resulting in the accident which caused the injury to the plaintiff.

That, it was contended, constituted breach of duty which the appellants owed the plaintiff. If Mrs. Kenny had paid particular attention to Azmi's behaviour, or misbehaviour, the accident would not have happened and therefore the plaintiff would not have sustained the serious injury. The learned trial judge gave judgement for the plaintiff. After addressing his mind to paras. 297, 299 and 301 in Charlesworth on Negligence, 5th ed, he held as follows: I am satisfied that there has not been sufficient or reasonable supervision of the class by Mrs. Kenny at the material time and that the injury inflicted by Azmi bin Manan on the infant plaintiff was caused by her negligence. It is established that Azmi bin Manan was a playful and mischievous boy who used to go round and disturb other boys especially those sitting at the back and had either Mrs. Kenny or the form teacher bothered to find out she would at least have discovered that Azmi bin Manan had been carrying a pencil with him when he wandered about in the class-room and therefore ought to have warned him and the class as a whole not to play with sharp pencils. As it was, such a warning was given only after the incident. Mrs. Kenny was not attending to any particular pupil and if she had paid proper attention to what was going on at the back of the class she certainly would have noticed that Azmi bin Manan was missing from his desk and found out what he was up to. Mrs. Kenny knew that Azmi bin Manan was playful and as she ought to have known also of his propensity to play with sharp pencils it was her duty to take precautions to prevent him from causing any possible injury to other pupils in the class which she had not taken. Before us it was agreed that this was not a case of breach of the obligation of the school teacher to maintain that degree of discipline which would enable her effectively to perform her function as a teacher, but one of lack of supervision on her part in that she had failed to check or prevent a recalcitrant pupil from wandering about in the classroom. Therefore the issue here is whether there was evidence on which the court could conclude that the injury to the plaintiff was causally related to any negligence on the part of the appellants. Counsel on behalf of the appellants submitted that there was none. The trial judge held there was. The question arises how much supervision is required of a school teacher in a classroom in order to protect the pupils from molestation and other risks of injury whatever their source. It is accepted that by reason of the special relationship of teacher and pupil, a school teacher owes a duty to the pupil to take reasonable care, for the safety of the pupil. The duty of care on the part of the teacher to the plaintiff must commensurate with his/her opportunity and ability to protect the pupil from dangers that are known or that should be apprehended and the duty of care required is that which a careful father with a very large family would take of his own children (see Ricketts v. Erith Borough Council [1943] 2 ALL ER 629, 631. It is not a duty of insurance against harm but only a duty to take reasonable care for the safety of the pupil. The duty is aptly described by the learned Chief Justice

of Victoria in the judgment of the Full Court in Richards v. State of Victoria [1969] VR 139, 141 when he said: The duty of care owed by (the teacher) required only that he should take such measures as in all the circumstances were reasonable to prevent physical injury to (the pupil). This duty not being one to insure against injury, but to take reasonable care to prevent it, required no more than the taking of reasonable steps to protect the plaintiff against risks of injury which ex hypothesi (the teacher) should resonably have foreseen." In that case the plaintiff suffered brain damage as a result of a fist fight which occurred at a High School in a classroom and in the presence of a teacher. Evidence suggested that the particular teacher had some difficulties in maintaining discipline in the past and that, on the day in question, the blow which caused serious injuries to the plaintiff had been preceded by an argument, a scuffle, and then a fight. The law does not attach strict liability on a school teacher for the torts of his/ her pupil, but only on proof that he/she had failed to exercise reasonable care in controlling the pupil such as would have avoided the injury to the plaintiff. Since that is a matter of evidence and inference, great care needs to be taken to see that the breach of the duty of care must be causally related to the injury received. Thus Lord Porter in Bourhill v. Young , [1943] AC 92 Denning LJ (as he then was) in King v. Phillips, [1953] 1 QB 429 and the Privy Council in The Wagon Mound [1961] AC 388 have expressed the view that the test of liability for shock is foreseeability of injury by shock. In The Wagon Mound, supra, it was held that if the damage which materialised was damage by fire, then for the defendant to be liable he must have been able to anticipate damage by fire; that he could anticipate damage by fouling the wharf's slipways was held not to be enough. Since that case the principle that the damage sustained must not only be caused by the wrongful act, but must be damage of a class or character reasonably foreseeable as a possible result of that act is now firmly established. There must be testimony from which it is a logical and reasonable inference, and not mere speculation or conjecture, that the school teacher's act contributed to the injury. And, of course, in deciding this matter, it is relevant to take into account common experience in a big school classroom consisting of 40 pupils. Therefore for a plaintiff to succeed in a case such as the present he must adduce direct or circumstantial evidence which tends to show not only how the accident happened but also that the injury was the result of some conduct on the part of the defendant. Whether the evidence permits a logical and reasonable inference that the defendant's conduct had some effect in producing the injury is a question of la w which this court can decide. Bradford v. Robinson Rentals, Ltd [1967] 1 All ER 267 illustrates the working of these principles. In that case the defendant employers carelessly exposed the plaintiff van driver to extreme cold in the course of his duties. In consequence he suffered frost-bite. The court held that the defendants exposed him to severe cold and fatigue likely to cause a common cold,

pneumonia or chilblains, and that frost-bite was of the same type and kind as the harms foreseeable, so that the defendants were held liable. In the present case, in considering whether or not the appellants were in breach of their duty of care to the plaintiff it was necessary for the trial judge to consider first whether the risks of injury to the plaintiff were reasonably foreseeable and secondly, assuming it was, whether the appellants took reasonable steps to protect the plaintiff against those risks. It is unfortunate that the trial judge did not clearly indicate in his judgment that these two questions were separate and should be dealt with by him separately. In my judgment, only the first question needs to be considered. There is evidence that the class never lacked supervision. The form teacher and Mrs. Kenny knew of Azmi's propensity to leave the desk and wander about and when they noticed it they immediately asked him to return to his desk which he did. But there was no evidence that they knew that Azmi was a bully because no pupil had ever complained to either of them. The trial judge held that Mrs. Kenny was negligent in failing to give proper attention to the class all the time, and that if she had paid proper attention to what was going on at the back of the class she certainly would have noticed that Azmi was missing from his desk and found out what he was doing and thus would have prevented the injury to the plaintiff. The question here is whether there was evidence from which a logical and reasonable inference could be drawn that as a result of the teacher's momentary inattention the injury to the plaintiff was reasonably foreseeable. In other words, according to the trial judge, there was evidence on which he could conclude that the injury to the plaintiff was causally connected with her wrongful act of momentary inattention. With due respect to the trial judge the evidence fails short of the requirement that the injury sustained by the plaintiff was of a kind or type of class reasonably foreseeable as a result of Mrs. Kenny's wrongful act, assuming she was wrongful. The sole question in the present case is a question of causation. In my judgment it cannot be said that the particular teacher carelessly exposed the plaintiff to injury of the class or type that could reasonably have been foreseen. If the injury which resulted was injury by the sharp end of a pencil, then for the appellants to be liable they must have foreseen injury by the sharp end of a pencil. A pencil is not a dangerous article. All pupils use pencil in classrooms. Indeed the trial judge accepted appellants' contention that to say that there was a duty by them to instruct each and every pupil on the proper use of a pencil was to stretch things to a ridiculous extent. Again, assuming the injury to the plaintiff's eye was in fact caused by a wrongful act of the teacher - for not being attentive in class all the time - it cannot be said that it was reasonably foreseeable that the injury of this class or character was a reasonably foreseeable result of such a wrongful act. In my opinion, I cannot conclude as a matter of evidence and inference that more probably than not constant vigilance in the classroom would have prevented the injury which the plaintiff in fact received. There is no factual basis of the causal connetion between the step the trial judge was entitled to think the teacher ought,

in the performance of her duty of care, to have taken, and the injury of which the plaintiff sustained. Because notwithstanding the proper exercise of supervision a recalcitrant pupil may act to the injury of a fellow pupil, it is prudent to see that the necessary causal relationship is made out. The effect of constant vigilance in class as a method of preventing a recalcitrant pupil from wandering about is often such a debatable matter that the causal relation between the lack of supervision and the injury caused to a fellow pupil may not be a matter of evidential probability but be no more than a matter of mere speculation. Appeal allowed.

SILVADURAI KUNNARY & ANOR V HEADMASTER, SRJK CINA, CHUNG HWA & ORS HIGH COURT MALAYA, MELAKA DATUK SURIYADI HALIM OMAR J [CIVIL APPEAL NO: 11-11 OF 1995] 22 JULY 1996 JUDGMENT Suriyadi Halim Omar J: The plaintiffs in this case were parents of Silvaprakash a/l Silvadurai, deceased, who was a standard 2 student at Sekolah Rendah Jenis Kebangsaan Cina Chung Hwa. On 18 September 1989 at about 9.45a.m. during the school recess it was evidenced that the deceased was playing with a see-saw at the rear of his classroom with another friend (PW4). By some freak accident the child after alighting from the see-saw accidently tumbled, after tripping, and fell head down on some rocks. Those rocks were deliberately placed there for landscaping and aesthetic value so as to decorate and beautify the school compound. As a consequence of that misfortune the deceased succumbed three days later i.e. on 21 December 1989. The plaintiffs subsequently filed a suit against the defendants viz the headmaster of the relevant school, the Ministry of Education and lastly the Government of Malaysia alleging negligence on their part which resulted in the loss of their child. On 11 September 1995 after a protracted hearing the learned magistrate dismissed the suit of the plaintiffs with costs. Being dissatisfied with the decision, the disillusioned plaintiffs promptly filed the notice of appeal and on 15 July 1996 the said appeal was heard by me. Zeroing in on the law without much ado as regards cases of this nature Salleh Abas FJ in Mohamed Raihan bin Ibrahim & Anor. v. Government Of Malaysia & Anor. [1981] 2 MLJ 27 had this to say: It is settled law that a school teacher is under a duty to exercise supervision over his pupils when they are in the school premises, either in the classroom or the playground. The degree of supervision depends on the circumstances of each case, such as the age of the pupils and what they are doing at the material time. If the teacher knows that the pupils are engaged in doing acts which are likely to cause injuries to one another, the teacher is under a duty to take steps to ensure the safety of the acts. It was common ground that on the material date the unfortunate child, taking advantage of the school recess, together with his friend Saravanan a/l Sanasy (PW4) were happily playing with the see-saw behind the classroom oblivious of the impending tragedy. There was no serious attempt on the part of the defendants to deny the subsequent episode whereby the deceased did fall on the rocks. PW4 at page 39 paragraph F said:

Kawasan itu dipenuhi dengan simen sekitar jongkang-jongkit dan terdapat rumput di sekitar longkang. Saya nampak Siva jatuh. Terdapat batu-batu yang dikumpulkan untuk tujuan pembinaan berhampiran pokok bunga dan Siva semasa berjalan terlanggar batu-batu yang dikumpulkan. Batu-batu tersebut batu putih. Saya ada nampak Siva jatuh. Kepalanya terkena pada batu besar dan badannya terkena pada batu kecil. Letchumy a/p Selliah (PW5) another classmate of the deceased at page 52 of the Records of Appeal admitted that Saravanan did inform her of the unfortunate incident which befell the deceased. She was informed as to where and how the deceased fell. The relevancy of this piece of evidence was not to prove the truth of that statement but merely to confirm that she was informed of the unfortunate incident within minutes of its occurrence. The challenge to the facts adduced by the plaintiffs came thenceforth namely as to what actually happened in the classroom. PW4 graphically said the deceased vomitted in the classroom but was denied by the defendants. For easy reference I reproduce what was said by PW4 at page 39 paragraph C: Selepas itu Siva muntah darah. Masa itu ada cikgu dalam bilik darjah. Saya tidak tahu nama cikgu tapi cikgu perempuan. Ada seorang guru wanita suruh saya basuh dan bersihkan muntah. Saya ada bersihkan muntah itu. Saya nampak Siva terbaring atas meja. Evidence to this effect was also confirmed by PW5 as reflected at page 51 paragraph C. On this contentious point the class teacher one Chan Chai Teng (DW2) at page 82 merely said that when the deceased came to see her only the knee and elbow were bruised whilst the rest of his body showed no sign of injury. Having located the bruises she applied some iodine on them. At page 86 she denied the dramatic events of the deceased vomitting. She also did not detect any injuries on the deceased's face. This lady witness further evinced that in class Sivaprakash was his normal self carrying out diligently her instructions. DW1 who was the headmaster of that relevant school did confirm at page 69 that DW2 did bring the deceased's predicament to his attention. He was informed that the child had suffered some minor injuries and iodine had been dabbed on the bruises. As regards the vomitting episode he was oblivious of it as no one kept him informed. The headmaster also confirmed that he found it unnecessary to consult a doctor as the relevant teacher had informed him that the injury was merely on the leg (page 73 of the Records of Appeal). At 1.00 p.m. the adopted mother (PW2) of the unfortunate child came to fetch him and with that cut off point, the responsibility over the child shifted to the mother. Having taken the child she immediately brought him to a clinic in the estate but unfortunately was closed. She then turned for home but later left for a clinic in Jasin. A doctor managed to see the deceased and prescribed him glucose and thereafter prompting them to return home. On the way home, as the child was

observed to be weak, he was again taken to the clinic located in the estate by PW2. There "a dresser" similarly prescribed the consumption of some glucose. She then returned home but later by taxi transported the child to the hospital in Tangkak for further observation. The next day the child was brought to the General Hospital of Malacca but on 21 December 1989 succumbed to his ailments. From the evidence adduced as at page 36 Dr. Mohd Nazir bin Abdul Rahman (PW3) admitted that the deceased had collapsed at about 6.00 p.m. the very same day the unfortunate incident happened. The learned Counsel for the plaintiffs admitted this fact. The plaintiffs made much out of the remarks of PW3 at page 36 which read: Collapse pukul 6 petang. Semasa 8.30 malam di Hospital Tangkak dalam keadaan tenat. Sekiranya dari masa dia collapse dia terus ke Hospital Besar Melaka mungkin boleh diselamatkan. Sekiranya pada waktu dia muntah, discan diberi rawatan mungkin dapat diselamatkan. Ini terpulang juga kalau cukup facilities mungkin boleh diselamatkan. On this unsubstantiated medical opinion of PW3 (there was nothing in the evidence to confirm that he was a surgeon with the necessary expertise) that the child could have been saved had he been brought to the hospital immediately after he had collapsed these questions whizzed around my head: 1. as the child had collapsed in Tangkak's hospital and not in school should the responsibility of taking the child to the General Hospital not lie with the adopted mother or the responsible hospital?; 2. even before any surgery could be carried out surely a lot of preliminary studies to diagnose the injury would have had to be undertaken, like scanning, x-ray, etc.?; 3. would any doctor in his right mind operate on that child unless all the alternatives had been discounted?; 4. even if a head surgery was necessary was there proof to confirm the fact that the hospital had the necessary equipment?; 5. with all these delaying factors could the child be eventually saved?; and lastly 6. even if the child had been promptly operated on could he have been saved? (I found no evidence adduced that could confirm with certainty). Some of these points could not be disputed by the learned Counsel and conceded that it was improbable that a doctor would immediately operate on that child without being in possession of the relevant data and equipment. No one could deny that this was a major medical exercise which entailed tremendous

preparation and suitable expertise. On a reflection even if I had agreed with the earlier submission of the learned Counsel for the plaintiffs that had the child been sent to the General Hospital in Melaka at the earliest moment I was not convinced that the treatment by the hospital would be any different to that given by the doctor and dresser in the respective clinics in Janin and Asahan. Similarly there was no medical evidence to confirm that the unfortunate child could have been saved had he been sent direct to hospital from school. Apart from the medical doubts which were besetting me I found these additional factors which negatived the plaintiffs' case: l. the undisputed time lapse of five hours after leaving the school promises and before he collapsed. He was collected from the premises of the school by his adopted mother at 1.00p.m. whilst he collapsed at about 6.00p.m. During these intervening hours what really happened was shrouded with mystery; 2. why did the mother not send the child to the General Hospital Melaka immediately when by her own admission she admitted witnessing the vomitting session before her. During this crucial period she was in charge of the welfare of the child; 3. in stark distinction to the mother's evidence the class teacher denied seeing the deceased vomitting at any period of time. The plaintiffs attempted their utmost to establish that incident but was rejected by the learned magistrate after assessing the evidence in toto. On this point may I be permitted to refer to the case of Crofter Hand Woven Harris Tweed Co., Ltd., And Others v. Veitch And Another [1942] 1 AER page 142 esp. 167 where Lord Porter said: It is unnecessary to emphasise the principle, so often recognised by your Lordships, that, in all cases where facts have to be reviewed, it is undesirable that the findings of the Courts below should be disturbed by a Court of appeal unless it appears that those findings are clearly wrong, and more especially that it is undesirable to do so where the conclusions reached must to a large extent depend upon the demeanour of the witnesses and the impression formed by a tribunal which has seen them and can judge of their honesty and accuracy. This relevant principle of law was followed by the Federal Court in China Airlines Limited v. Maltran Air Corporation Sdn. Bhd. (formerly known as Maltran Air Services Corporation Sdn. Bhd.) and Anor Appeal [1996] 2 AMR 2233. In this case the Federal Court interfered with the findings of fact of the Court below based on the proposition that an appellate Court would more readily interfere with the Judge's finding of fact which depended largely upon inferences drawn from other facts. Having perused the findings of the learned magistrate who had made specific findings over the evidence of all the witnesses and being mindful of the remarks of Mohamed Dzaiddin FCJ I was hard pressed to dispute her findings. The learned magistrate after many days of hearing had the full

benefit of listening and assessing the demeanour of the witnesses and finally eventuate on them. She was in the right seat, place and time to assess any twitch, hesitancy, unusual behaviour or even the changes in the level of their voices when testifying. These factors reached a higher level of prominence and significance especially with regard to the two children who despite being minors were expected to recall an incident that ocurred five years earlier. On 16 September 1994 when PW4 and PW5 who were peers gave evidence they were 12 year olds whilst at the date of the incident they were mere six year old children. How they managed to remember the incident that happened many years ago that would have caused expected agonising moments even for an adult due to memory lapses was beyond the Court's understanding or comprehension. With all these factors confronting me I was not convinced that the deceased vomitted in class. Regardless of this stance even if I were to accept PW4 and PW5's evidence as against that of DW2 the matter did not end there. I still had to proceed further and consider the other eight questions or doubts which I mentioned earlier. In other words there were other obstacles to consider. Retracting slightly the Court had to consider the reaction of the teacher the moment she was confronted with the bruises when exposed to her. Since I had decided that there was no conclusive evidence to confirm that the teacher witnessed the vomitting I then proceeded on that premise. Here was a teacher DW2 faced with a child covered with some bruises but was behaving normally in the accepted sense. She reacted promptly by applying some iodine on the affected areas and subsequently brought the matter to the headmaster's attention. I then asked myself the relevant question, had I been a mere teacher who had no medical background, would I not have reacted the same way and in similar fashion as that of DW2 in the circumstances of the case? My conclusion was resoundingly positive. Not only had DW2 given immediate medical attention to the child but had also adhered to the required guidelines when she reported the matter to the headmaster. In other words DW2 had acted reasonably. I was further fortified by the belief that if the doctor in Jasin and the dresser in Asahan could not manage to detect the internal haemorrhage or the seriousness of the injury how was the Court to judiciously expect the teacher to do any better? There was a mild attempt by the learned Counsel to castigate the school for placing the rocks close to the see-saw which had culminated in death. Much had I sympathised with this argument I was not oblivious to the fact that this was not a question of a child who fell from a defective see-saw or while playing the see-saw was flung off the seat and landing on the jutting rocks. This was a case of one of the two children having alighted from the see-saw while walking towards the classroom, tripped, and unfortunately fell headlong on some rocks. If the school were to be reprimanded for laying those rocks near the playground which had caused the fatal injury then on the same argument if the child had fallen on some other rocks much further away from the playground the school would still not escape the rebuke. Some level of risk in life had to be taken as otherwise there would be no end to matters of this nature. Let us not forget that the other child did

not trip even though they were together. To submit to the submission of the plaintiffs might lead to unexpected suits where Courts would be held liable whenever Counsels suffer injuries after accidently knocking their heads on some beautifully carved bar table despite the good intentions of the Court to ensure the comfort of the legal fraternity. The remarks of Lord Porter in Bolton And Others v. Stone [1951] Vol. 1 page 1078 at 1081 para A are highly relevant where he said: It is not enough that the event shouldbe such as can reasonably be foreseen. The further result that injury is likely to follow must also be such as a reasonable man would contemplate before he can be convicted of actionable negligence. Nor is the remote possibility of injury occuring enough. There must be sufficient probability to lead a reasonable man to anticipate it. The existence of some risk is an ordinary incident of life, even when all due care has been, as it must be, taken. As regards whether sufficient warning had been posted to the users of the playground, the headmaster (DWI) at page 77 clearly indicated that during school assemblies children were informed of the dangers of the see-saw on the school premises. Supervisors and teachers were also around to advise children of the lurking dangers. On this point of supervision and warning permit me to reproduce the dicta of Lee Hun Ho J (as he then was) in Chen Soon Lee v. Chong Voon Pin & Ors. [1966] 2 MLJ 264 at page 267 which reads: The teachers had done all they possibly could to ensure the safety of the students. There is no evidence to show that any of the teachers had been at fault or neglected their duty thus causing deceased to get drowned. The amount of supervision required depends on the age of the students and what they were doing at the time. The teachers had done more than was necessary. They kept the students under continuous supervision. There was nothing the teachers, or for that matter any other person, could do to fight against an unfortunate occurrence of circumstances. I was satisfied that sufficient action had been undertaken by the school to warn the children of the dangers of playing with the see-saw. To exact unusually stringent measures would be stretching the duty imposed on the school as this is not a war zone. Further on this point might I hasten to clarify that the see-saw was not the cause of the fatal injury but a fall on some hard object which was totally unconnected with the latter. It would thus be unreasonable, to say the least, if teachers were to be responsible to ensure that students were not injured after being in contact with some hard objects within the compound of the school in every circumstance. No doubt it was foreseeable that children would fall and possibly be injured while running around in exhuberence but the law requires more than that. As Lord Denning in Brown v. National Coal Board [1962] 1 AER 81 esp. page 89 paragraph H said "... for the common law does not require a man to provide

security against a possible cause of injury, even though it is forseeable" (see also supraBolton And Others v. Stone). I further seek solace from the case of Zazlin Zahira Hj Kamarulzaman (an infant) suing by his father and next friend, Hj Kamarulzaman b. Mohd Ali lwn. Louis Marie Neube RT Ambrose a/l Ambrose & 2 Yg Ln[1994] 3 AMR 47 2518 at page 2519 under held 1 which reads: 1.(a) Seorang guru bertanggung jawab menjaga keselamatan murid-murid di bawah jagaannya. Kewajipan berhati-hati ini mesti mengambil kira peluang dan kebolehan guru itu untuk melindungi murid-murid dari bahaya yang diketahui, dan tahap kewajipan ini adalah sama dengan kewajipan seorang bapa yang mempunyai anak ramai. Ia bukan kewajipan menjamin tidak akan berlaku kemalangan, tetapi sekadar kewajipan berhati-hati dengan munasabah untuk menjaga keselamatan murid-murid. Undang-undang tidak meletakkan tanggung jawab yang keras (strict liability) ke atas guru. Raja Azlan Shah FJ (as he then was) in Government Of Malaysia & Ors, v. Jumat Bin Mahmud & Anor. [1977] 2 MLJ 103 at page 104 para D had this to say: It is accepted that by reason of the special relationship of teacher and pupil, a school teacher owes a duty to the pupil to take reasonable care, for the safety of the pupil. The duty of care on the part of the teacher to the plaintiff must commensurate with his/her opportunity and ability to protect the pupil from dangers that are known or that should be apprehended and, the duty of care required is that which a careful father with a very large family would take of his own children (see Ricketts v. Erith Borough Council). It is not a duty of insurance against harm but only a duty to take reasonable care for the safety of the pupil. The duty is aptly described by the learned Chief Justice of Victoria in the judgment of the Full Court in Richards v. State of Victoria when he said: The duty of care owed by (the teacher) required only that he should take such measures as in all the circumstances were reasonable to prevent physical injury to (the pupil). This duty not being one to insure against injury, but to take reasonable care to prevent it, required no more than the taking of reasonable steps to protect the plaintiff against risks of injury which ex hypothesi (the teacher) should reasonably have foreseen. Having perused the notes of evidence I was not convinced that the plaintiffs had proven every fact traversed in their cause of action in order to obtain judgment in their favour (see Nasri v. Mesah [1970] 1 LNS 85; Yong Book Fong v. Nallakaruppan Chettiar & Ors. [1972] 1 MLJ 13/17). On the other hand I was satisfied that there was sufficient supervision over the school children with regard to the playground. I was also satisfied that the teacher had acted reasonably after being confronted with the condition of the child until the handing over to the

adopted mother. If the evidence of the doctor, subpoenaed by the plaintiffs, were anything to go by that the child could have been saved after he had collapsed had he been taken to hospital immediately surely that was the death knell of the plaintiffs' case. The fact that the child's condition deteriorated whilst under the supervision of the adopted mother/hospital surely exonerated the school. The uncertainty of the availability of the equipment and the probable delay before any surgery due to preliminary observations would be of no help either to the plaintiffs' case. On the above grounds I dismissed the appeal with cost.

CHEN SOON LEE V. CHONG VOON PIN & ORS HIGH COURT [MIRI] OCJ LEE HUN HOE, J [CIVIL SUIT NO. K/35/65] 13 JUNE 1966 JUDGMENT Lee Hun Hoe J: (deliver by Silke J): This is an action by an administrator for damages for negligence. The first defendant was the principal of Chung San School, Riam Road, Miri. The second and third defendants were teachers in the same school. Plaintiff alleged that because defendants were negligent his daughter, Piek Leng met her death. On 6 December 1964, a Sunday, a party of 53 students with seven teachers of the said school went on a picnic to Tanjong Lobang. In the afternoon deceased and her friends were playing a ball game in waist deep water when some of them apparently moved into what appeared to be a depression. They found themselves in difficulty. The teachers and some boys came to their assistance. Later it was found that deceased was missing. A search was carried out and deceased was found in very shallow water. Artificial respiration failed to revive her and she died that day. Tanjong Lobang seems to be a well known spot in Miri and a popular picnic spot. On the day in question some Malay students from another school were also picnicking there. In fact for many years not only students from Chung San School but other schools had their picnics there. Chen Soon Lee (PW1), the deceased's father said that deceased did not tell him about going to the picnic but had informed other members of the family. As a result of her death he had lost her services and had spent considerable sum of money for the funeral. Chai Tung Poh (PW2), the chairman of the Chung San School board of management said that the teachers did not inform the board about taking the children to the picnic. He said the board did not give the principal the right to take children to picnic. He said that if the principal wanted to take the children out of school he had to get permission from the board even on Sunday. At the outset I must say I am not impressed by this witness. He appeared rather evasive in various matters when questioned and kept on referring to certain written rules of the board. When he was asked to produce the rules he was unable to do so as there were in fact no such rules. Bong Ching Miaw (PW3), a supervisor of the said school, said that if the teachers wanted to take children to a picnic or outing they had to inform the board in writing. But he admitted during cross-examination that there was no such rule that teachers had to obtain permission to take children to picnic on Sundays or holidays. This witness is more

impressive than PW2. However he made no mention to any written rules governing the conduct of teachers. Chong Yuen Fah (PW6) is now studying in Miri Secondary School. She was previously a student in Chung San School. She is one of the students who went to that unfortunate picnic. She was playing a ball game with deceased and other girls. They were standing in a circle and they threw the ball from one to another. The second defendant taught them how to play. The water was only waist deep. After teaching them he went on to teach another group of students. Suddenly a big wash came and she fell down. They shouted for help. She was pulled up by a boy and helped to the beach. There she saw the teacher and other boys helping the other girls. Someone then made inquiry if all had come up. She mentioned that deceased had not. A search was made and deceased was found. During cross-examination she mentioned that in 1963 she was also in the sixth year in Chung San School. She repeated the sixth year in 1964. She said in 1963 there was a similar picnic for the sixth year students at the same spot. She also played in the water. She went on to say that the picnic was arranged by the teachers in response to the request of the students. Each student was given a copy of a circular giving various instructions and information. She gave evidence well and her manner pleasing. I think her evidence assists the defence rather than the plaintiff. According to first defendant the students of the sixth year made a request through their form teachers to have a picnic at Tanjong Lobang and he approved. He issued a circular to every student. Of twelve teachers in the school six decided to join the students. The students were divided into three groups. Two teachers were assigned to each group. When the students assembled at the beach at Tanjong Lobang all the teachers were jointly responsible for all the students with the first defendant in overall control. Before lunch there was a roll call. After lunch they had a rest. Shortly after 1 p.m. they went to play in the water. The teachers went in first followed by the students. Later over ten students decided to go swimming in a fresh water swimming pool a short distance away. First defendant instructed three teachers to accompany the students there as the water in the pool was considerably deeper. There were thus four teachers (including first defendant) left to look after those at Tanjong Lobang. The three teachers were most of the time standing some distance apart in a line in the deeper part with the first defendants slightly farther away in front of the teachers. They were thus in pyramid formation. I accept as a fact that the students were playing a ball game in waist deep water. At the beginning the teachers showed them how to play the game. Then they kept watch from the positions I mentioned previously. The object would seem to be to prevent students moving to the deeper part. According to first defendant the students moved gradually as they were playing the ball to the left. The teachers following the move. Suddenly more than ten students appeared to be struggling as if there was an area of depression in that part. The teachers and first defendant went to the spot and got the students out of difficulty. One of the students was first defendant's daughter. As a result of information from Chong Yuen Fah (PW6) it was realised that deceased was missing. A search was

made in the area. Eventually Chen Chiok Ming, a teacher (DW4) found deceased in water of over one foot deep. Artificial respiration failed to revive her and she died. Second and third defendants corroborated the evidence of first defendant substantially. Both had been to almost every picnic organised for the students in the past while at the said school third defendant had the distinction of attending a picnic while a student in said school where he latter became a teacher. After leaving Miri Krokop School where he taught for some ten years Chen Chick Ming (DW4) joined Chung San School in 1963. While at Miri Krokop School he had also on many occasions taken students to Tanjong Lobang for picnic. In 1963 he also joined the Chung San School picnic at Tanjong Lobang. The defence witnesses mentioned that there were small waves but none remember any particularly big wave. PW6 referred to a big wave when she fell down. It was possible that the sudden drop of the seabed causing a depression gave her the impression of a big wave coming over her. I accept the evidence of the defence witnesses where they conflict with the evidence of the students. Mr Yong referred to the famous words of Lord Atkin in Donoghue v. Stevenson [1932] AC 580 as quoted by Lord Porter in Bolton v. Stone [1951] 1 All ER 1078 (at p. 1081): You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour." Lord Porter then went on to say: It is not enough that the event should be such as can reasonably be foreseen. The further result that the injury is likely to follow must also be such as a reasonable man would contemplate before he can be convicted of actionable negligence. Nor is the remote possibility to lead a reasonable man to anticipate it. The existence of some risk is an ordinary incident of life, even when all due care has been, as it must be, taken." Lord Denning in his judgment in Brown v. National Coal Board [1962] 1 All ER 81, 89 after considering that the Coal Mines Act, 1911 and Factories Act, 1937 imposed a higher duty than was imposed by the common law then stated: for the common law does not require a man to provide security against a possible cause of injury, even though it is foreseeable." The defence adduced evidence to show that for years students from various schools had been having their picnics at the same place and playing in the water in the same area. There was no known depression in the vicinity. The defendants adopted the same kind of supervision as had been done in the past.

In Wright v. Chesire County Council [1952] 1 All ER 789 where some ten boys were engaged in the exercise of vaulting the "buck" and plaintiff was injured the Court of Appeal allowing the appeal held that defendants were not liable in damages to plaintiff and considered that the test of what was reasonable care in ordinary everyday affairs might well be answered by experience arising from practices adopted generally and followed successfully for many years; and the evidence was that the defendants adopted a generally approved practice; taking into account the nature of the activity in question they had not been shown to have been negligent. In Rich & Anor. v. London County Council [1953] 2 All ER 376 where an infant plaintiff was injured by a piece of coke thrown at him by another boy the Court of Appeal held that the duty owed by the defendants to the boys was to take such care of them as a careful parent would exercise in like circumstances and that their supervision of the boys was adequate and therefore they were not liable to the plaintiff. And in Wray v. Essex County Council [1936] 3 All ER 97 the Court of Appeal held that an oilcan which caused injury to plaintiff was not an inherently dangerous thing and the master was under no duty to take special precautions. In all these cases it would appear that the incidents occurred in premises under the control of defendants. In the present case the incident occurred during school holiday and outside school premises at a picnic arranged at the request of the students themselves. Therefore the question whether defendants owed plaintiff any duty or not become of some importance. Mr Yong submitted that there was adequate supervision and that the students were only allowed to play in shallow water. The incident was unfortunate and he further submitted that the depression was in the midst of shallow water and was unforeseeable. Defendants had no knowledge of the depression. Mr Nayar submitted that what happened in Bolton v. Stone [1951] 1 All ER 1078 was not the same as what happened in the present case. Similarly he submitted that those cases cited by Mr. Yong had no bearing to the present case as they were distinguishable. He then referred to Morris v. West Hartlepool Steam Navigation Co. Ltd. [1956] 1 All ER 385 where appellant, a deck hand while working in a ship at sea fell through an open hatch and was seriously injured. The evidence did not show how the appellant happened to fall. The House of Lords by a majority held the respondents liable and allowed the appeal. The unprotected hatch was held to be an obvious risk and could readily have been avoided despite the fact that evidence of general practice leave off the 'between deck hatch covers of holds in grain ship after the holds had been prepared and not erect guard-rails round the hatches while grain ships in ballast were at sea and that accidents by falling in such holds were rare. I do not think anyone disputes Mr. Nayar's contention that general practice over a long period necessarily answers a charge of negligence. There the danger was foreseeable and a reasonable man weighing the matters would have clearly considered taking precaution. That is a case of master and servant and different consideration applies. It is important to bear in mind that each case must be decided according to its particular facts.

First, I will consider whether the teachers owed any duty to the deceased or her father to provide supervision for the students. Secondly, assuming that they owed such a duty whether in the circumstances they were negligent. The picnic was organised at the request of the students themselves. It was on a Sunday and therefore a holiday. The teachers could refuse to accede to the students' request to go to Tanjong Lobang for a picnic. But then the students could have organised the picnic and gone there themselves. But I think the students seemed to be intelligent enough to wish to have the teachers with them. These students though young, should not be treated as Lord Goddard said in Camkin v. Bishop [1941] 2 All ER 713 "as if they were infants at creches and no master is obliged to arrange for constant and perpetual watching out of school hours." The facts in that case were briefly that during their halfholiday, a number of boys from a school were allowed by the headmaster to help a farmer in a field. As a result of a horseplay among some of the boys, the infant plaintiff was struck on the forehead by a clod of earth, and one of his eyes was so badly injured that it had to be removed. In an action for damages for negligence against the headmaster it was contended that be was under a duty to arrange for the supervision of the boys while they were doing the work. It was held that in the circumstances of the case, the headmaster owed no duty to the infant plaintiff or his father to provide for supervision of the boys. Applying that principle to this case I would say that the principal and teachers owed no duty to the deceased or her father to provide supervision. The fact that there was a disastrous and unfortunate result is no reason for throwing the responsibility on the three defendants. There is no evidence to indicate that anyone was aware that the place the students were playing was dangerous. Now assuming that I am wrong and that the teachers owed such a duty the question would be whether they were negligent on the facts of this case. It has been submitted and I accept it as a correct proposition of law that a schoolmaster's duty towards his pupils is the same as that of a "careful father". In Williams v. Eady [1893] ten TLR41 Lord Esher MR indicated quite clearly that a master was bound to take such care of his pupils as a careful father would take of his children. I will therefore apply this standard to the present case. It Is a well known principle that a parent is not liable for the negligence of his child unless the child is his servant or agent. He is however liable for his own negligence and is under a duty to exercise such control over his children as a prudent parent would exercise. However when you look at it the defendants had done all they could to ensure that the students obeyed their instructions. There is no evidence that the students did not follow such instructions. The picnic was organised at the request of the students themselves to their form teachers who obtained permission from the principal. It was therefore for the students' benefit that the picnic was arranged. The principal prepared a circular and each student was given a copy to take home. The students were all in the sixth year. They were divided into three groups. Two teachers were assigned to look after each group. The principal himself was in

overall control of the groups. When they reached the beach the teachers had charge of all students with the principal again in overall control. Three teachers were spread out in the deeper part of the water with the principal farther away in front. The object was to prevent students from venturing to the deeper part. Students played game under supervision. The girls were playing a game one would expect normal and healthy girl students to indulge in. There is no evidence that they had gone to play in the deeper part of the water. In fact PW6 had said that the teachers had advised them not to go to the deeper part. These students were old enough to understand such warning. There were at the time only four teachers (including the principal). They had taken steps to supervise the students and to keep watch over them while they were playing in the water. There is no evidence that there was known danger or trap on that stretch of the beach where the children were playing. The depression was unsuspected. The teachers had done all they possibly could to ensure the safety of the students. There is no evidence to show that any of the teachers had been at fault or neglected their duty thus causing decease to get drowned. The amount of supervision required depends on the age of the students and what they were doing at the time. The teachers had done more than was necessary. They kept the students under continuous supervision. There was nothing the teachers, or for that matter any other person, could do to fight against an unfortunate occurrence of circumstances. In my view looking at the facts I am inclined to agree with Mr. Yong that there was adequate supervision. It is difficult to see how such a case could be brought against the three defendant. Viscount Cave LC in his judgment in Mersey Docks and Harbour Board v. Procter [1923] AC 253 at p. 262 referred to Wakelin London South Western Ry Co 12 App Cas 41 44 which mentioned that this House affirming the Court of Appeal, held that, assuming (but without deciding) that there was negligence on the part of the company, there was no evidence to connect the negligence with the accident, and accordingly that there was no evidence to go to the Jury." Halsbury LC stated the principle as follows:It is incumbent upon the plaintiff in this case to establish by proof that her husband's death has been caused by some negligence of the defendants, some negligence of the defendants, some negligent act, or some negligent omission, to which the injury complained of in this case, the death of the husband is attributable. That is the fact to be proved. If that fact is not proved the plaintiff fails, and if in the absence of direct proof the circumstances which are established are equally consistent with the allegation of the plaintiff as with the denial of the defendants, the plaintiff fails, for the very simple reason that the plaintiff is bound to establish the affirmative of the proposition: 'Ei qui affirmat non ei qui negat incumbit probatio.'"

I think these expressions apply with equal force in the present case. I sympathise with plaintiff but he has undertaken to prove that defendants are responsible for what happened. I regret that having regard to the evidence I am bound to hold that the plaintiff has not established on the balance of probabilities that defendants were in anyway negligent. This being so, I dismiss his claim with costs to be taxed. Claim dismissed.

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PENGARAH PELAJARAN, WILAYAH PERSEKUTUAN & ORS V. LOOT TING YEE FEDERAL COURT [KUALA LUMPUR] CIVIL APPEAL NO 177 OF 1980 LEE HUN HOE, CJ (BORNEO), WAN SULEIMAN, J & SALLEH ABAS, FJJ 7 JULY 1981, 5 SEPTEMBER 1981 Salleh Abas FJ (delivering the judgment of the Court): This is an appeal from the decision of Mr. Justice Vohrah, refusing the appellant's application to strike out the respondent's claim. The respondent was a school teacher attached to Sekolah Rendah Jenis Kebangsaan (C) Naam Kheung, Batu 3½ Jalan Cheras, Kuala Lumpur (referred to in the judgment as "NK School"). He joined the teaching service on January 1, 1953 first as a member of Unified Teaching Service. When this service was abolished upon the implementation of Abdul Aziz Salary Report (1971), on his option the respondent was accepted into the Government Teaching Service with effect from April 1, 1972 and was placed in the service as a Category B1 teacher. He thus, in the words of Encik Abdul Halim Shah bin Abdul Murad, an officer in the Ministry of Education which words are contained in his affidavit sworn on May 3, 1980, and agreed to by the respondent in his affidavit sworn on June 28, 1980, becomes "directable, deployable and transferable to perform teaching, administrative and other duties that may be reasonably required of him and also becomes subject to all Service Circulars, General Orders, Treasury Instructions and other rules and regulations applicable to members of the Public Service". The respondent has been teaching in NK School since January 11, 1965 and has been a category B1 teacher ever since he joined the Government Teaching service on April 1, 1972. By letters dated December 31, 1979, July 9 and 12, 1980 Pengarah Pelajaran Wilayah Persekutuan (Appellant No. 1) informed the respondent that he was transferred to Sekolah Rendah Jenis Kebangsaan (C) Chung Hwa, Jerteh, Trengganu to whose Headmaster he was required to report for duty on February 1, 1980. The respondent protested against this transfer alleging that it was unjust and improper and also requested Appellant No. (1) to cancel it. As the request was not acceded to the respondent appealed to the Minister of Education, (Appellant No. 2) whose decision was finally conveyed to the respondent in a letter dated February 5, 1980 to the effect that the transfer had to remain and that the

respondent had to abide by it. Aggrieved by this decision, on February 14, 1980 the respondent sued Appellant No. (1) and Appellant No. (2) claiming a declaration that the impugned transfer was inoperative and void and that he is still "legally entitled" to continue teaching at NK School. He also asked for some other ancillary remedies. After further and better particulars were supplied to the appellants at the request of Mr. Lim Beng Choon Senior Federal Counsel acting on their behalf regarding the allegations made in the statement of claim, the appellants applied by summon-in-chambers to the court to have the statement of claim struck out on the ground that the issues raised in the statement of claim are non-justiciable and that they are otherwise scandalous, frivolous, vexatious and abuse of court's process. After hearing arguments in the open court, Mr. Justice L.C. Vohrah dismissed the appellants' application with costs. The reasons given by the learned judge as far as we can gather from his judgment is that the power of transferring an officer must be exercised by the transferring authority honestly, bona fide and reasonably and that as the statement of claim contains allegations of bad faith the respondent's suit must proceed to trial. He thus dismissed the appellants' application to strike out the statement of claim. The respondent was transferred on the instruction of the Minister of Education under paragraph 16 of the Perintah-Perintah Am which is as follows: — "Seseorang pegawai boleh diarahkan berkhidmat dimana-mana sahaja oleh Kerajaan melainkan ada syarat-syarat khas yang menetapkan sebaliknya." (An officer may be directed to service anywhere by the Government unless there are terms and conditions providing otherwise.) It is the respondent's case that the transfer of a government employee is reviewable by the court if it could be shown that the transfer was actuated by bad faith. In support of this proposition learned counsel for the respondent cited two Indian cases. Partap Singh v State of Punjab AIR 1964 SC 72 and Malinamani v Commissioner Habli Dharwar Municipal Corporation [1973] Kar LJ 121. With respect we find ourselves unable to accept the submission. The law relating to civil service in Malaysia is based upon a twin principle that every employee holds office during pleasure of the Yang di-Pertuan Agong and that the qualifications for appointment and conditions of service are regulated by him, in addition and subject to any law on the same subject matters having been made by Parliament. So far Parliament has not yet made any law on the subject of civil service except the Pensions Ordinance and Parliamentary Service Act (No. 12 of 1963). These two Acts are irrelevant in the present appeal. The Constitution prescribes no limit on the scope and extent of the pleasure of the Yang di-Pertuan Agong but when power to dismiss an employee or to reduce him in rank is to be exercised, the Constitution prescribes procedural restrictions as to the manner and by whom this power is exercisable. Thus the pleasure of the Yang diPertuan Agong not only applies to tenure of office of an employee but also extends to a

multitude of subject matters such as appointments, promotions, transfers, salaries, leaves and other benefits. These are all being regulated by civil service rules known as PerintahPerintah Am made by the Yang di-Pertuan Agong under Clause 2 and Article 132 and also various circulars, instructions issued from time to time by appropriate authorities in the Government. The approach taken by the courts in India seems to be that the principle of holding office during pleasure is limited to cases of dismissal and termination of services only and that it has no relation or connection with other cases. In State of Bihar v Abdul Majid AIR 1954 SC 245, 249 the Supreme Court of India held that the principle had no application to a case where a civil servant was suing for arrears of salary. Mahajan C.J. declared that the principle simply concerned itself with the tenure of office of the civil servant and that it had nothing to do with his claim for arrears of salary. In Pratap Singh v State of Punjab AIR 1964 SC 72 the court held that the principle of "durante bene placito" did not apply to a case where a civil servant was challenging a Government order revoking an earlier order permitting him to retire and granting him leave prior to retirement. Ayyangar J. delivering the majority opinion of the court described the contrary submission of the Attorney-General who appeared for the State Government as "patently unwarranted besides being contrary to" the court's decision of State of Bihar v Abdul Majid AIR 1954 SC 245, 249. The result of these two cases is therefore that the concept of "durante bene placito" is given a very restricted meaning; it being limited to cases of dismissal and termination of service only. With respect we are unable to accept these decisions as being the law in Malaysia. In our view as a civil servant holds office during pleasure, not only the length of his service is subject to pleasure but the place and time of his service is also similarly subject to pleasure. The only difference is that as regards dismissal and reduction in rank procedural safeguards contained in Article 135 must be observed, whereas in cases of transfer and other matters no such safeguards need be followed. Thus whether a civil servant should be transferred, and if so where and when the transfer is to be made are matters for the government to decide. No useful purpose could thus be served in this case by holding a full trial of the respondent's allegations of mala fide and unreasonableness. Counsel for the respondent relied heavily on Malinamani v Commissioner Hubli Dharwar Municipal Corporation [1973] Kar LJ 121. It is his submission that since the transfer in Malinamani's case could be challenged on the basis of bad faith the respondent therefore has an actionable right to challenge the transfer order. With respect we cannot accept this submission. In Malinamani's case the employee concerned was appointed under Bombay Provincial Corporation Act (55 of 1949) and therefore not subject to tenure during pleasure of the President at all. This is different from our case. Further the transfer dealt with in that case was not a transfer as we understand it in the context of civil service in Malaysia. It was a transfer, if not a transformation, of an employee from being a library attendant to being a fireman. Whereas in our case the respondent continues to be a teacher in the same category as he was before the transfer; the transfer being only as to the place of work and not as to the nature of service. We therefore rule that Malinamani's case is completely useless for our purpose.

We now turn to the respondent's statement of claim. The allegations which the respondent hopes to find a cause of action are contained in paragraphs 13, 14, 15, 16, 17 and 18. These six paragraphs are in fact repetitive of one another and their combined effect is that the transfer was void because: (1) it was not in the public interest (paragraph 13); (2) it was not ordered honestly and reasonably (paragraph 14); (3) it was a victimisation of him for holding views on Chinese culture and education which views subjected him to the open attacks by MCA (paragraph 15); (4) it was punishment (paragraph 16); (5) it was a reduction in rank (paragraph 17); and (6) the transferring authority had no absolute right to transfer him (paragraph 18). As to the allegation that the transfer was not in the public interest it suffices us to say that as employment in the civil service is during pleasure of the Yang di-Pertuan Agong, as long as he is in the service, it is for the Government to decide whether his transfer is in the public interest or not, having regard to the fact that the Government has a larger public duty to perform. It is not for us to interfere with the discretion of the Government in this matter. To do so would only amount to an unjustifiable usurption of Government's discretion by us. There is absolutely no legal basis for us to interfere with the Government's discretion. Similarly the reasonableness of the respondent's transfer is not for us to decide. As regards punishment there is nothing in the Constitution which entitles an officer to bring his grievances before the court whenever he is punished unless and until the punishment complained of amounts to a dismissal or reduction in rank. No matter how aggrieved an officer is by the "punishment" in our view he has no cause of action. As regards the allegation that the transferring authority had no absolute right to transfer him, the answer is that the respondent holds office during pleasure of the Yang di-Pertuan Agong. If an officer can be dismissed at pleasure (subject only to observance of Article 135) similarly he can be asked to serve anywhere at pleasure. No officer can therefore claim to have legal right of non-transferability because by joining the Government service he has become liable to transfer. Regarding the allegation of reduction in rank the respondent swore an affidavit saying that since 1973 he became a supervisor of the school and that in that capacity in the absence of the Headmaster and the Deputy Headmaster his duties included administration and overall charge of teachers of the school. His transfer to Chung Hwa School in Jerteh, he claims, albeit retaining Category B1 teacher deprives him of the appointment of supervisor of the school. In our view the work of a supervisor does not involve any extra remuneration

payable to him although he is required to do some administrative work in the absence of the administrative head and deputy head. Although he and many others may feel that taking him away from the supervisory capacity is a demotion, in our view this act does not seem to be reduction in rank within the meaning of Article 135 of the Constitution. His transfer to Chung Hwa School does not reduce his rank below that of a category B1 teacher which he continues to retain, nor would he receive less remuneration. According to affidavit of Encik Abdul Halim Shah which was agreed to by the respondent, he was, on joining the Government service "accordingly directable, deployable and transferable to perform teaching, administrative and other duties…". We therefore find nothing in this allegation which merits holding a trial. The only paragraph which alleges malice is paragraph 15, in support of which the respondent swore two affidavits — one on April 3, 1980 and another on June 30, 1980. He also supplied further particulars on April 17, 1980 at the request of the appellant. These allegations are as follows. The respondent is not a member of any political party, but he was interested in, and has championed the cause for, the preservation of Chinese culture and education in the country. He has been the Vice-President of the United Chinese School Teachers' Association since 1966 and Vice-Secretary of Merdeka University Sdn. Berhad since 1974 — a company dedicated to the cause of establishing a University by that name to cater for students of Chinese Schools who are unable to gain entry into the existing Universities and colleges. He is active in other organisations also. His activities and views on Chinese education and in particular on Merdeka University brought him into open confrontation with the Malayan Chinese Association (MCA), a member of the ruling parties. He related an incident wherein on November 25, 1978 one Tan Chow Bock, an MCA Perak Youth leader requested Y.B. Datuk Chan Siang San, Deputy Minister of Education to teach the respondent a lesson by transferring him to Ulu Kelantan in order to prevent the respondent from quarrelling with the MCA on Chinese education. He thus alleged that his transfer was prompted by malice and that because of his views on Chinese culture and education he was therefore victimised. The substance of these allegations is simply that he was transferred because of personal animosity between him and MCA. But there is no allegation that the transfer of the respondent was at the instance of the Deputy Minister of Education. By relating the incident that the Deputy Minister was publicly asked to transfer him to Ulu Kelantan, the respondent was in fact suspecting that the Deputy Minister had a hand in the making of the transfer order. There is absolutely no basis for this suspicion or surmise because the transfer was not made on the order of the Deputy Minister but that of the Minister of Education himself. The real question in this case is whether or not the Minister had genuinely considered the merits of the transfer. With respect we fail to see anything in this story which goes to show that he did not do so and that he was so low and so irresponsible as to take into account the related incident which had taken place two years previously. In Franklin v The Minister of Town and Country Planning [1948] AC 87, 104 the House of Lords refused to take into consideration a speech made by the Minister at a political rally for the purpose of determining the validity of an order made by him even though the

speech appeared to have forejudged the making of the order. It was held that the real question was whether the Minister had genuinely considered the report and objections before making the order. Thus in our view not only the story of this particular MCA Meeting was irrelevant but also the Minister who instructed the transfer was not the one who attended the meeting. This story is completely irrelevant. Perhaps it is natural for the respondent who is so steeped in activities relating to Chinese culture and education to feel that he is victimised because the transfer will result in the curtailment of these activities, if not, a complete cessation. Again even on the assumption that the allegations were true we are not prepared to hold that there was any bad faith in such transfer and therefore there is no need for the case to go on trial. The Government has formulated a certain policy on education and has been returned to power with a mandate, inter alia, to carry through that policy into effect. The respondent as its servant is not only opposing that policy but also carrying out activities hostile to the Government's interest. In the circumstances we cannot see how, in implementing the policy whereby the respondent had to be transferred from where he was to some other school, the transfer is said to be ordered in bad faith. Was it not the respondent who placed himself in the position which led the Government to transfer him? Here even assuming that the respondent's office is not during pleasure we cannot see how the Government as an employer is so powerless that it cannot take any action on its employee, when the latter has carried out activities detrimental to its interest. Surely an employer expects, and is entitled to, obedience by his servant? We are fortified in this approach by a similar line taken by their Lordships of the Privy Council in Stephen Kalong Ningkan v Government of Malaysia [1968] 2 MLJ 238. In this case the Government took steps to deal with constitutional crisis in Sarawak involving the passing of an Act of Parliament to amend the Constitution of Sarawak and the removal of the incumbent Chief Minister. Their Lordships refused to hold that the passing of the Act and the removal of the Chief Minister might cause him naturally to feel that the Act was directed against him personally. Lord MacDermott, delivering the judgment of the Privy Council said: — "It is not for their Lordship's to criticise or comment upon the wisdom or expediency of the steps taken by the Government of Malaysia in dealing with the constitutional situation which had occurred in Sarawak, or to enquire whether this situation could itself have been avoided by a different approach. But, taking the position as it was after Harley, J. had delivered judgment in September 1966, they can find, in the material presented, no ground for holding that the respondent government was acting erroneously or in any way mala fide on taking the view that there was a constitutional crisis in Sarawak. …" Likewise in this appeal we are not prepared to hold the transfer of the respondent to be prompted by inproper motive or bad faith even if it is true that the transfer was due to his views on Chinese education, which are in conflict with the known policy and views of the Government. A person who is playing with fire cannot complain if he gets burnt in the process. Similarly a man riding on tiger's back will have himself only to blame if in the

act of riding he is eaten by the tiger if he survives at all. He should know the limits of his capability. Thus a servant should know his legal limits when he openly engages himself in activities which his employer considers to be inimical to his interest. Having examined the allegations in the statement of claim we are of the view that even on the assumption that the allegations were true, the respondent has no cause of action. By loading into this statement of claim such allegations as victimisation, reduction in rank, punishment, public interest and abuse of power he was hoping that anyone of these will succeed to show a reasonable cause of action. But little did he realise that the suit was based on a misconception of the law. In the circumstances we hold that the statement of claim not only does not show any reasonable cause of action but is also scandalous, frivolous, vexatious and an abuse of process of court. The appeal is allowed with costs and the appellant's summons-in-chambers filed on May 31, 1980 is allowed which means the statement of claim is struck out. Deposit is refunded to the appellants.

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[Use PDF [1983] CLJ 248 (Rep) [1983] 2 CLJ 74

LOOT TING YEE V. TAN SRI SHEIKH HUSSEIN SHEIKH MOHAMED & ORS. FEDERAL COURT, KUALA LUMPUR SUFFIAN LP, SALLEH ABAS FJ, ABDUL HAMID OMAR FJ [CIVIL APPEAL NO. 12 OF 1981] 19 FEBRUARY 1982 JUDGMENT Suffian LP: This is an application by the appellant for conditional leave to appeal to His Majesty from a judgment of this Court. The appellant is a teacher at Sekolah Rendah Jenis Kebangsaan (China) Naam Kheung, Batu 3½, Jalan Cheras, Kuala Lumpur. He was ordered to go on transfer to Sekolah Rendah Jenis Kebangsaan (China) Chung Hwa, Jerteh, Trengganu. He refused to comply with the transfer order. He appealed to the education authority to cancel the order, but was not successful. On 11 April 1980, the Secretary General of the Ministry of Education directed him to present himself to the Headmaster of the school in Jerteh as early as possible. He again refused. On 14 April 1980, he filed a suit in the High Court, Kuala Lumpur, asking for a number of declarations, the main one being a declaration that the purported transfer was void and of no effect. While the suit was still pending the Education Service Commission on 9 June 1980, sent him a notice to show cause why he should not be dismissed from the teaching service. The notice also carried several charges against him relating to acts allegedly in violation of several provisions of the Public Officer (Behaviour and Discipline) Regulations, also known as General Orders Cap. D. The several charges against the appellant are concerned primarily with his not complying with the transfer order and with

his subsequent conduct. On 29 September 1980, the appellant applied to the High Court under O. 52 r. 3 of the Rules of the High Court 1980 to commit the eight members of the Education Service Commission, the respondents, for alleged contempt of Court. The grounds for the application for committal can be summarized briefly as follows: (1) knowing that there was a pending suit in the High Court for declarations on the purported order of transfer, the respondents had by sending the Notice to show cause prejudged the issues the subject matter of the pending suit; (2) the action of the respondents clearly interfered with the true course of justice and the lawful process of Court; (3) the actions of the respondents were clearly calculated to hinder the Court in the administration of justice, adversely affecting the authority and dignity of the Court; and (4) the action of the respondents clearly prejudiced the merits of the applicant's case pending before the Court. Wan Suleiman, FJ who sat in the High Court to hear the application held: that on the score of the restricted scope of publication alone, there cannot be contempt for by no stretch of the imagination can such publication pose any sort of risk of interference with the proper administration of justice. What was called by applicant's Counsel publication was in fact intimation to the applicant of charges of a departmental character proposed to be brought against him. And in another passage of his judgment he said: Examined in the light of Lord Diplock's definition of contempt of Court cited earlier [i.e. Attorney-General v. Times NewspaperLtd. [1973] 3 All ER 54] the conduct of the Education Service Commission in relation to the civil suit (which) applicant has filed neither tends to undermine the system for the administration of justice by Courts of law and the maintenance of public confidence in it nor does it inhibit citizens from availing themselves of that system for the settlement of their disputes. On appeal the Federal Court agreed with the learned trial Judge. The appellant being dissatisfied is desirous of appealing further to His Majesty - hence this application for leave to so appeal. Mr. Lim Beng Choon for the respondents opposed the application on the ground that the decision appealed from was a decision as to the effect of the Constitution and therefore barred by s. 74 (3)(a) of the Courts of Judicature Act. Alternatively he argued that the

decision was one relating to a criminal matter and therefore, since the repeal by Act A328 in 1976 of para. (c) of sub-section (2) of s. 74, no longer appealable to His Majesty. Finally he argued that the case was not from its nature a fit one for appeal; but he did not press this last ground. Mr. Karpal Singh on behalf of the appellant argued that the decision appealed from did not involve interpreting the Constitution. In answer to the alternative argument he said that contempt was a civil matter, for the application to commit the respondents was made under O. 52 of the Rules of the High Court and if the respondents were committed they would be sent to a civil prison and the expenses of their detention would have to be borne by the appellant, not the Government. Lastly he said that this case is from its nature a fit one for appeal within para. (iii) of sub-section (1) of s. 74 and therefore appealable. Thus the issue here is - whether or not the appellant may appeal beyond the Federal Court. Clearly if the matter is criminal, he may not. With respect we are of the opinion that the learned trial Judge's decision was in a criminal matter and therefore there is no right of appeal beyond the Federal Court. In O'Shea v. O'SheaandParnell ex parte Tuohy [1890] 1 PD 56, the Court of Appeal held that an application by a party to a civil action for an attachment against a person not a party to the action, for contempt of Court in the publication of comments calculated to prejudice the fair trial of the action, is a "criminal cause or matter" within the meaning of s. 74 of the Judicature Act, 1973; and no appeal from an order made upon such application could be brought to the Court of Appeal. There was a divorce suit and application was made by notice of motion for a writ of attachment for contempt of Court against Tuohy, for printing and publishing an article calculated to prejudice the petitioner in the divorce suit in the eyes of the public and to discredit him in the assertion of his right in the Court. Cotton LJ said at p. 63: It is conceded that [what Tuohy did] was a wrongful act, otherwise there could be no fine or imprisonment. And when you concede that it is a wrongful act, you find, although [the motion] is headed in the divorce action, it is not a proceeding in the action ... , but an application to punish an attempt to induce the jury not to try the case properly, which is as much a criminal act as an attack upon the Judge himself. In Ambard v. AG. for Trinidad and Tobago [1936] AC 322 Lord Atkin delivering the judgment of the Privy Council said at p. 329: ... interferences [i.e. with the administration of justice - whether they be interferences in particular civil or criminal cases] when they amount to contempt of Court, are quasicriminal acts, and orders punishing them should, generally speaking, be treated as orders in criminal cases ...

The Singapore High Court has also held that contempt of Court is a criminal matter. In Re Abdul Aziz's Application [1961] 1 LNS 99 Rose CJ said at p. 65: It would seem to be clear that ... contempt of Court ... has long been regarded as a criminal matter. The observations of Lindley LJ and Lopes LJ in O'Shea v. O'Sheaand Parnell, at pp. 64 and 65 are in point. As also is an observation of Wills J in the King v. Parke [1903] 2 KB 441 at p. 441 where he says that procedure in matters pending on the civil side `would afford no assistance in the present discussion'. By this he must clearly be taken to have meant that contempt of Court falls on the criminal side of the jurisdiction. In PP v. Lee Ah Keh & Ors. [1968] 1 MLJ 22 Ali J, as he then was, recognized that contempt of Court is a criminal offence, certainly if committed in the face of the Court. He cited with approval at p. 23 the head-note to In re Pollard [1868] 5 Moore NS. 111 which reads in part as follows: A contempt of Court being a criminal offence ... This is not to say however that all contempt are criminal, for, as stated by Halsbury's Laws of England, 4th Edn., para. 2: Contempt of Court may be classified either as (1) criminal contempt, consisting of words of acts obstructing, or tending to obstruct or interfere with, the administration of justice or (2) contempt in procedure, otherwise known as civil contempt, consisting of disobedience to the judgments, orders or other process of the Court, and involving a private injury. The alleged contempt here is clearly of the first and not of the second kind. The fact that the application here was made under O. 52 of the Rules of the High Court 1980, and that if committed the respondents would be kept in a Civil Prison at the expense not of Government but of the applicant does not in our judgment make any difference. As there is no appeal beyond the Court, this application is dismissed with costs.

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acted dishonestly, maliciously or in bad faith. I have, however, found that in the circumstances of this case the first defendant acted honestly and bona fide.

I therefore enter judgment for the plaintiff and declare that the order of expulsion of the plaintiff as a pupil from the King George v. School, Seremban, made by the first defendant with effect from 4 May 1968, is null and void and is of no effect. I also order that the plaintiff be reinstated as a pupil of the King George v. School, Seremban, and costs. Order accordingly.