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2012 MarsdenLR 1205
HIGH COURT SABAH & SARAWAK KUCHING
MASTER BRISBANE ITANG – Appellant
Versus
ROBINSON LEE & ORS – Respondent
[Suit No: 22-119-2010-II]
Defendants not liable for JE infection due to lack of statutory duty to immunize and absence of negligence in maintaining school safety.
Headnote:(A) Prevention and Control of Infectious Diseases Act 1988; Destruction of Disease-Bearing Insects Act 1975 - Japanese Encephalitis (JE) infection - Minor plaintiff contracted JE at school - Defendants alleged negligence for failing to immunize and ensure safety - Court found obligations on health authorities, not individual defendants - No proof of infection source at school - No common law or statutory duty established. (Paras 1-57)
Facts of the case:
A minor plaintiff became infected with JE after experiencing symptoms while attending a boarding school near a pig farm. He was not immunized, resulting in permanent disability. Defendants denied negligence and linked infection to home environment with no proof. (Paras 2-6)
Findings of Court:
Evidence insufficient to prove infection location; no statutory duty for school to immunize; policy decisions not actionable. Defendants maintained safe environment; no negligence established. (Paras 41-42)
Issues: Whether the defendants were negligent in preventing JE infection and if they had a duty to immunize the plaintiff against JE. (Paras 16-30)
Ratio Decidendi: Defendants not medically trained; no evidence of negligence regarding safety protocols or failure to vaccinate. Liability hinges on statutory duty, which was not established. (Paras 37-40)
Result: Claims against all defendants dismissed.
| Table of Content |
|---|
| 1. minor's case arising from je virus infection. (Para 1 , 2) |
| 2. arguing negligence and duty of care. (Para 3 , 4) |
| 3. defendants' denial of claims. (Para 5 , 6) |
| 4. patient's treatment timeline and school protocol. (Para 7 , 8 , 9 , 10) |
| 5. evidence of infection sources and incubation. (Para 11 , 12 , 13 , 14 , 15) |
| 6. responsibilities of authorities for disease control. (Para 16 , 17 , 18 , 19 , 20) |
| 7. classification of public authority claims. (Para 21 , 22 , 23) |
| 8. legal provisions for infectious disease control. (Para 24 , 25 , 26) |
| 9. statutory duties not conferred. (Para 29 , 30) |
| 10. no mandatory vaccination duties imposed. (Para 31 , 32 , 33 , 34 , 35) |
| 11. court's assessment of evidence and negligence. (Para 36 , 37 , 38 , 39 , 40 , 41) |
| 12. contractual obligations and responsibilities. (Para 42 , 43 , 44 , 45 , 46 , 47) |
| 13. vicarious liability principles. (Para 48) |
[1] The plaintiff is a minor and sues by his next best friend who is his father. At the material times the plaintiff was about ten years old and lived with his parents, grandmother and siblings at Kampong Danau Melikin, Balai Ringin, Serian District. He attended Sekolah Kebangsaan (Cina) Sungai Menyan, Serian, a primary and boarding school, which was situated near to a pig farm. The plaintiff pleaded that he was a fee paying student of the boarding school.
[2] It was pleaded that on 25 September 2006 or 26 September 2006, the plaintiff had fever while he was at the school. On 27 September 2006, he was taken by his teacher ('the first defendant') to the government clinic in Balai Ringin for treatment and was then sent back to his house in the kampong. His conditions deteriorated and on 28 September 2006 his mother sent him to the Serian Hospital where he was admitted. He was transferred to the Sarawak General Hospital ('SGH') in Kuching where he was diagnosed to have been infected with the Japanese Encephalitis ('JE') virus. As a result of the infection, the plaintiff suffered brain damage, is confined to a wheel-chair and is unable to take care of himself. Dr Hii King Ching ('PW3'), a paediatrician at SGH, testified that the plaintiff is permanently disabled both physically and mentally and requires lifetime care. The plaintiff has sued the first to the sixth defendants for general and special damages based on contract, torts and a common law fiduciary duty of care.
[3] The plaintiff contended that pigs are the natural hosts of the JE virus which is transmitted to human beings via the culex mosquitoes from infected pigs. The plaintiff contended that a pig farm should never be located within a 2km radius of a school due to the high risks of infections, especially to children under 15 years old. It was contended that there are many pig farms in Serian District which has a history of JE infections. The plaintiff pleaded that there was a major outbreak of the virus in Malaysia in early 1999 including in Serian.
[4] Therefore it was contended that the relevant authorities knew of the high risks involved, should have put in place appropriate public health policies and ensure their effective implementations to protect members of the public including giving vaccination against the JE virus to the plaintiff and other children in the school. It was also contended that the defendants have common law and or statutory duties towards the plaintiff who was placed at the boarding school. It was contended that the defendants have failed to do so and were also negligent in failing to do so.
[5] The defendants denied the plaintiff's claims and submitted that the plaintiff has failed to prove that he was bitten by a culex mosquito and was infected by the JE virus at the boarding school. They contended that although he became sick at the school, the plaintiff had gone back to his kampong for the weekend and returned to the school on 24 September 2006. It was contended that wading birds including ducks are also natural hosts of the JE virus and that there were ducks kept in the kampong
