JUDGMENT

Gopal Sri Ram JCA:

This is the judgment of the court.

The Facts

In the early hours of the morning of 16 February 1989 a fire broke out in the building at No. 1, Park Road, Penang. It claimed several lives and caused serious injury to others. They were all young children. We will say in a moment how they came to be there.

For convenience, we will refer to the parties to this appeal by the title assigned to each of them in the court of first instance.

The first defendant is a school. It has a campus in Penang. It needed a hostel to accommodate some of its students there. It found a building: a very old dwelling house. According to the unchallenged evidence, the building had been in existence even before 1922.

The second defendant is a local authority. It owned the building in question. It let the old building out to the first defendant. It knew very well the use to which the first defendant would put the building. It knew that young children would live in that old building. But it did nothing to upgrade the building to ensure that it was safe for use as a hostel by young children. That much is borne out by the evidence. And there is no serious dispute about this.

In all the letting was for three years. The initial term was for two years from 20 December 1986 until 19 December 1988. This was later extended to 19 December 1989. Throughout the term the premises were used as a hostel. Young children who attended the first defendant's school lived there. And that is why they were there on the day of the tragedy.

The Judgment Of The Sessions Court

In due course an action was filed in the Sessions Court against the defendants in respect of the accident. The second defendant's position was attacked both in its capacity as a landlord and a local authority. There was a fairly lengthy trial. At its conclusion the court found for the plaintiffs. In an exceptionally well-reasoned judgment the learned Sessions judge (Ms. Ho Mooi Cheng) held the defendants equally liable for the deaths and the injury caused by the fire.

She took the case before her through the correct steps of legal reasoning. First, she carefully analysed the evidence including that of the expert witness (PW3) called by the plaintiffs. Having done so, she came to the conclusion that the premises were unsafe at the material time. Next, she turned to the law, in particular to the basis on which liability might properly be founded against the first defendant. She held, quite rightly, that the first defendant and its affected pupils stood in a special relationship to each other and that accordingly a duty of care was owed by the former to the latter. In arriving at this conclusion, she correctly directed herself on the law by applying the following dictumof Raja Azlan Shah FJ (as he then was) in Government of Malaysia & Ors v. Jumat bin Mohamed & Anor[1977] ; [1977] 2 MLJ 103, at p. 104:

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 be 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.

We pause to make two points. First, it must be noted that the aforesaid dictumof Raja Azlan Shah FJ contains a statement in very general terms of the nature of the duty owed by a teacher to his or her pupil. However, whether the duty has been discharged in a given case depends upon a number of factors present or absent on the peculiar fact pattern of the particular case. In other words, the degree of care that ought to be exercised