An appellate court may overturn a lower court's decision if it fails to properly evaluate evidence and misdirects itself on legal principles regarding duty of care and negligence.

Introduction

[1] This is the 1st and 2nd Appellants' appeal against the decision of the 10 learned Magistrate given on 16 January 2019 in allowing the Respondent's claim and awarded general damages in the sum of RM30,000.00, special damages in the sum of RM1,500.00, suing cost in the sum of RM1,375.00 and advocacy cost in the sum of RM5,450.00.

[2] For the purpose of this appeal, the 1st and 2nd Appellants will be referred to as the 1st and 2nd Defendants, whereas the Respondent will be referred as the Plaintiff.

Plaintiffs' Pleaded Case

[3] The Plaintiff is the biological mother and legal guardian of one four-year-old child (at the time of the incident) named "X" (hereinafter referred to as "the said Child").

[4] The 1st Defendant is and was at all material time the owner and principal of the 2nd Defendant, a kindergarten/daycare known as Tadika Khalifah Perdana @ Little Caliphs operating at Lot 129, Lorong 3D, Taman Putera Perdana, 88450 Telipok, Sabah.

[5] The nature of business of 2nd Defendant is providing daycare services to toddlers and at the same time operating as Taska and/or kindergarten to young children aged 5 years and below.

[6] On 16 March 2016, upon returning from the 2nd Defendant, the said Child had informed the Plaintiff that a male child named "Y" (a four-year-old boy) who also attended the 2nd Defendant, had sexually molested the said Child by opening her pants and touching her private parts (hereinafter referred to as "the said incident").

[*The details of both children are substituted with "X" and "Y" respectively in order to protect their identity and are as stated in the Bundle of Pleadings and Notes of Proceedings]

[7] On the same day, the Plaintiff contacted one Feka, a teacher who works at the 2nd Defendant and the 1st Defendant to enquire more on the said incident and not one of them have had knowledge on the said incident and further refuted the allegations and concluded that such incident could have never happened as all children under the care of the 2nd Defendant are supposed to be monitored at all times and are divided accordingly to their gender and age.

[8] On 17 March 2016, a day after the said incident had occurred, the Plaintiff together with her husband brought the said Child to 2nd Defendant to make further enquiries and obtain clarifications from the 1st Defendant and one Feka.

[9] The Plaintiff had also sought permission from the teachers who worked with 2nd Defendant to view CCTV recordings of the 2nd Defendant specifically for the recordings on 16 March 2016 (hereinafter referred to as "the said CCTV Recordings"), the day of the said incident, but was rejected and was told that only 1st Defendant is privy to the access to any CCTV recordings of the 2nd Defendant.

[10] The Plaintiff was granted permission to view the said CCTV Recordings upon the arrival of the 1st Defendant to 2nd Defendant but to the Plaintiff's disappointment, the said CCTV Recordings was unable for viewing due to the broken mouse at that particular of time and was further told by the 1st Defendant that the said CCTV Recordings can only be viewed within few days as the 1st Defendant needed to get another mouse.

[11] The Plaintiff was unhappy with the solution offered by the 1st Defendant and offered to use her mouse instead when they returned back to 2nd Defendant at about 5.00 pm on the same day. Notwithstanding the replaced new mouse by the Plaintiff, the Plaintiff was still unable to view the said CCTV Recordings due to time constraints.

[12] The Plaintiff and her husband confirmed that there were eight (8) channels on the scr