Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 MarsdenLR 1680

HIGH COURT SABAH & SARAWAK KOTA KINABALU
RUSIAH SABDARIN & ORS – Appellant
Versus
MOHD JAINAL JAMRAN & ORS – Respondent
[Suit No: BKI-22NCVC-88/11-2020]

Petitioner Advocates:Sherzali H Asli ,Respondent Advocate: Mohd Hafizi Abdul Halim,Fazriel Fardiansyah Abdul Kadir

Defendants breached statutory duties under the Education Act and Public Officers Regulations, failing to provide education, resulting in liability for negligence and emotional harm to students.

Headnote:(A) Education Act 1996 - Section 19 - Public Officers (Conduct and Discipline) Regulations 1993 - Regulations 3A, 3C, 23, 24, and 25 - Breach of statutory duty - Defendants failed to provide English classes for students, violating their rights to education - Plaintiffs sought declarations of breaches and damages. (Paras 2, 3, 55, 95)

(B) Misfeasance in public office - Court found insufficient evidence of targeted malice by Defendants - Claim for misfeasance not established. (Paras 56)

(C) Vicarious liability - Defendants failed to prove non-liability under Government Proceedings Act 1956 - 3rd to 5th Defendants found vicariously liable for actions of 1st and 2nd Defendants. (Paras 58, 63)

Facts of the case:
Plaintiffs were students in 4SS, alleging that the 1st Defendant's absenteeism from English classes deprived them of education and preparation for examinations in 2017. Defendants denied absenteeism and liability. (Paras 1-4)

Findings of Court:
Plaintiffs proved on a balance of probabilities that the 1st Defendant was absent and that the Defendants breached their statutory duties under the Education Act and POCDR Regulations, causing emotional harm to the Plaintiffs. (Paras 55-57, 94)

Issues: Whether the Defendants breached their statutory duty to provide education, whether the 1st Defendant was absent, and whether the Defendants are vicariously liable. (Paras 7, 11)

Ratio Decidendi: The court held that the Defendants breached their statutory duties, affirming the right to education under the Federal Constitution and establishing liability for negligence. (Paras 54-55)

Result: Plaintiffs' claims allowed; Defendants liable for statutory breaches and damages awarded. (Paras 95)

Judgement Key Points

Key Points: - Plaintiffs alleged breach of statutory duty under Education Act 1996 for failing to provide English education in 2017 ( Paras describing breaches under Education Act and POCDR Regs ) (!) (!) (!) (!) - Court found the 1st Defendant’s absenteeism and breaches of Education Act and POCDR Regulations, with vicarious liability of 3rd-5th Defendants (and no misfeasance proven) (!) (!) (!) (!) (!) - Court held breach of statutory duty and negligence; awarded nominal and aggravated damages and declared rights under Articles 5 and 12 of the Federal Constitution (right to education) (!) (!) (!) (!) - Issues considered included vicarious liability, notice and disciplinary actions, and whether the 2nd Defendant had notice of absenteeism prior to November 2017 (!) (!) (!) - Evidence of leaked exam questions (soalan bocor) and disciplinary implications discussed as part of conduct and duty under POCDR and Education Act (!) (!) (!) (!) (!) - Damages: nominal RM30,000 per Plaintiff and aggravated RM20,000 per Plaintiff; interest at 5% (!) (!) (!) (!) - Declarations: breaches of Education Act and constitutional rights; statutory/regulatory breaches by specific Defendants; vicarious liability established (!) (!) (!) (!)

How to determine whether the Defendants breached their statutory duty to provide education under the Education Act 1996?

What is the liability of the Defendants for negligence and misfeasance in public office?

What are the remedies including damages and declarations for breach of constitutional right to education?

Table of Content
1. plaintiffs' right to education breached. (Para 1 , 2 , 3)
2. defendants' denial of absenteeism. (Para 4 , 8 , 9)
3. witness testimonies supporting claims. (Para 5 , 6)
4. evidence of absenteeism and misconduct. (Para 15 , 22 , 43 , 44)
5. breach of statutory duty established. (Para 54 , 56 , 62)
6. right to education includes access to teachers. (Para 65 , 73)
7. damages awarded for emotional and psychological injury. (Para 76 , 78 , 89)
8. judgment in favor of plaintiffs granted. (Para 94 , 95)

Leonard David Shim J:

Introduction

[1] The Plaintiffs were students enrolled in the class identified as 4 Sains Sukan ("4SS") under the tutelage of the 1st Defendant at SMK Taun Gusi ("the School"). The present case ultimately arose out of the 1st Defendant's absenteeism during English classes at the material time and the effect it has had towards the Plaintiffs' inalienable right to education.

[2] As a consequence thereof, and by implication, the nature of the Plaintiffs' cause of action is the failure of all 5 Defendants to provide the Plaintiffs with English classes during the relevant period in 2017. The Plaintiffs contend that this omission constitutes breaches under the Education Act 1996 ("Education Act") on the part of the Defendants, misfeasance in public office on the part of the 1st and 2nd Defendants, and infringements of the Plaintiffs' constitutional rights guaranteed under the Federal Constitution.

[3] The reliefs sought by the Plaintiffs against the Defendants are as follows:

1. A declaration that the Defendants are in breach of their statutory duty under the Education Act by failing to ensure that the Plaintiffs were taught the English language during the material time for the year 2017.

2. A declaration that the Defendants are in breach of their statutory duty under the Education Act by failing to prepare the Plaintiffs for examinations as prescribed under the .

3. A declaration that the acts of the Defendants complained of amounts to misfeasance in public office.

4. A declaration that the Defendants have violated the Plaintiffs' constitutional rights to access to education guaranteed to the Plaintiffs under art 5 read together with art 12 of the Federal Constitution.

5. Exemplary, General and Aggravated damages.

[4] The Defendants main contention in disputing the Plaintiffs' claim can be summarized as follows:

1. The 1st Defendant was present at all material time during the English classes for 4SS.

2. Defendants deny that the 1st Defendant was frequently late or not fully present at the material time. See para 4.1 of Statement of Defence ("SOD").

3. The 1st, 2nd and 3rd Defendants are employees and or servants and or agents only to the 5th Defendant. See para 1.1 of SOD.

4. If the issue of vicariously liability was raised on the 5th Defendant as the employer and or master and or principal to the 1st, 2nd and 3rd Defendants, the strict requirements of ss 5 and 6 of the GPA must be applied. See para 1.2 of Statement of Defence.

5. The 3rd Defendant will not be vicariously liable in any ways for the actions of the 1st and 2nd Defendants pursuant to ss 5 and 6 of the Act 395. See para 1.3 of Statement of Defence.

6. The 4th Defendant will not be vicariously liable in any ways for the actions of the 1st and 2nd Defendants pursuant to ss 5 and 6 of the Act 395. See para 1.4 of Statement of Defence.

7. The claim for Misfeasance is time-barred. See para 7.3 of Statement of Defence.

8. That the 2nd Defendant had taken all appropriate and necessary actions on the problems faced at the material time. See para 5.2 and 6.2 of Statement of Defence.

9. That the Defendants had taken all appropriate and necessary actions on the problems faced at the material time. See para 7.2 of Statement of Defence.

[5] The Plaintiffs had called ten (10) witnesses to support their claim as follows:

1. PW1 Nurul Afirah Zainal Abidin

2. PW2 Suriana Mohammad Salleh

3. PW3 Rusiah Sabdarin

4. PW4 Mohd Fadzley Izzani Lamsin

5. PW5 Calvina Angayung

6. PW6 Nur Natash

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