Any kind of educational setting serves as a place of learning where people are instructed in a wide range of disciplines and subjects, preparing them for roles, decisions, and responsibilities in the real world. These are crucial transitional years when characteristics are developed and personalities are created. Thus, it is only just and reasonable to anticipate that these educational institutions will be safe. Obviously, the scope and extent of the responsibilities would be substantially greater in the case of residential schools.
Criminal Offence
When such bullying entails causing bodily harm, this constitutes an offence of voluntarily causing hurt[1] under section 321 Penal Code, which provides, “Whoever does any act with the intention of thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurt to any person, and does thereby cause hurt to any person, is said voluntarily to cause hurt.”
If the kind of hurt is a more serious one,[2] it may constitute an offence of voluntarily causing grievous hurt under section 322 Penal Code,[3] which provides. “Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows himself to be likely to cause is grievous hurt, and if the hurt which he causes is grievous hurt, is said voluntarily to cause grievous hurt.”
Civil Cause of Action
Victims of bullying case can commence tort of assault and battery. Essentially, an assault is the making of any gesture, which causes any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person. Battery, on the other hand, is the intentional and direct application of physical force to another person.
In the recent case of Ahmad Ikhwan Ahmad Fauzi v. Mohd Fahimi Endut, Bapa Dan Waris Kepada Ahmad Safwan Hanim Mohd Fahimi & Ors and Another Appeal in Federal Court, the appeals concern a school bullying at a residential school. The Appellant, a student at the school, was assaulted by fellow students in a school dormitory while two school prefects watched but did not intervene. The Appellant sustained several injuries, including a perforated ear, resulting in hearing loss. The assailants were already charged at Magistrates’ Court for voluntarily causing hurt under Section 323 of Penal Code.[4] They all pleaded guilty to the charge and were given a good behaviour bond for two years with a monetary surety of RM1000.00.
Despite that, the Appellant sued the assailants who are the 1st to 5th Defendants, and the 6th to 9th Defendants for principally failing to ensure that he was safe whilst at the residential school. The Appellant claimed that the Senior Assistant Student Affairs, Former High School Principal, Director General of the Ministry of Education Malaysia and Government of Malaysia, who are the 6th to the 9th Defendants respectively, are also vicariously liable for the tort of the first five Defendants.
In reference to Sections 21 and 43 of Evidence Act 1950,[5] it was held that the admissions made in the Magistrates’ Criminal Court which were unconditional and voluntarily made are admissible and relevant to the allegation that an assault involving the appellant and these defendants did indeed take place. As such, the 1stto 5th Defendants are liable for the tort of assault and battery.
In determining affirmatively as to whether the bullying or assault was reasonably foreseeable for the 6th to 9thDefendants, the Federal Court held:-
[41] It cannot be denied that the 6th to the 9th defendants do owe a duty of care to all students enrolled in the school, collectively and individually. That includes a duty owed to the appellant. Whilst within their premises and the compound of the premises of the school, these defendants are responsible for their safety, welfare and well-being, that these students are safe from harm, whether caused by conditions of the premises themselves or by others occupying or licenced to be within the premises.
[42] We have already expressed views to this effect in Government of Malaysia & Ors v. Jumat bin Mahmud & Anor [supra] and Mohamed Raihan bin Ibrahim & Anor v Government of Malaysia & Ors [supra]; that by reason of the special relationship between teachers and similar personnel and the student, the teachers owe a duty to the student to take reasonable care for the safety of the student. School teachers and other similar personnel are under a duty to supervise the students when the students are within the school, for the ultimate purpose of maintaining discipline, safety and well- being of the students. The degree of supervision depends on the circumstances of each case - see Mohamed Raihan bin Ibrahim [supra].
The Federal Court went on to held that the bullying or physical assault that occurred in the Bilik Ketua Pengawas on that night was indeed reasonably foreseeable, as the evidence from a teacher witness pointed to the fact that spot checks were carried out in the premises including in the Bilik Ketua Pengawas but on that night, that room was omitted during his rounds. Further, it was held that the display of posters against bullying, as provided by the Ministry of Education around the premises of the residential school strengthens the view that bullying was well within the reasonable contemplation of the authorities, including the 6th to the 9thdefendants. Those in charge of the supervision of the residential school cannot therefore make any credible argument on lack of foreseeability.
In the premises, the Federal Court decided that the failure and omissions on the part of the 6th to 8thDefendants render the 9th Defendant, the Government of Malaysia, to be vicariously liable.
It was emphasised that these persons are but the means by which the 9th Defendant effectuate its duties and responsibilities in relation to education in a residential school. The 9th Defendant remains in control of these defendants including the students, the first five defendants, and is thus responsible and liable for their acts and omissions.
Since the damage to the Appellant is reasonably foreseeable, these defendants indeed owe the Appellant a duty of care to keep him safe from harm, including any form of bullying by any persons within the control of these defendants. The Federal Court reinstated the High Court awards of general damages for the injuries sustained and special damages of RM4,634.20 together with interest and costs, and exemplary damages of RM120,000.00. The Federal Court also granted costs of RM150,000.00.
Bullying unfortunately continues to occur in what is supposed to be our safe havens of education. If anyone is bullied, it is always recommended to tell the parents, teacher, school counselor, or any adult you trust. The school authorities must also be remembered that they are responsible for their students’ acts and/or omission and are charged with the duty to ensure the safety of their students.
[1] Section 319 of Penal Code defines hurt as ‘whoever causes bodily pain, disease, or infirmity to any person is said to cause hurt.’
[2] Section 320 of Penal Code recognises the following kinds of hurt as "grievous":
(a) emasculation;
(b) permanent privation of the sight of either eye;
(c) permanent privation of the hearing of either ear;
(d) privation of any member or joint;
(e) destruction or permanent impairing of the powers of any member or joint;
(f) permanent disfiguration of the head or face;
(g) fracture or dislocation of a bone;
(h) any hurt which endangers life, or which causes the sufferer to be, during the space of ten days, in severe bodily pain, or unable to follow his ordinary pursuits.
[3] Explanation to Section 322 of Penal Code provides, ‘A person is not said voluntarily to cause grievous hurt except when he both causes grievous hurt and intends or knows himself to be likely to cause grievous hurt. But he is said voluntarily to cause grievous hurt if, intending or knowing himself to be likely to cause grievous hurt of one kind, he actually causes grievous hurt of another kind.’
[4] It provides, ‘Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall be punished with imprisonment for a term which may extend to one year or with fine which may extend to two thousand ringgit or with both.’
[5] Section 21 of Evidence Act 1950 provides, ‘Admissions are relevant and may be proved as against the person who makes them or his representative in interest’. Section 43 of Evidence Act 1950 provides ‘Judgments, orders or decrees other than those mentioned in sections 40, 41 and 42 are irrelevant unless the existence of such judgment, order or decree is a fact in issue or is relevant under some other provision of this Act.’
Authored by Tan Zu Hao.
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