CASE TITLE: MOHAMED RAIHAN BIN IBRAHIM & ANOR v.

GOVERNMENT
OF MALAYSIA & ORS [1981] 2 MLJ 27, FC.

CASE DETAILS: (Refer appendix 1)

- Judges : Raja Azlan Shah C.J. (Malaya), Syed Othman & Salleh Abas F.JJ.
- Trial Dates : October 6, 1980 & February 21, 1981
- Court : Kuala Lumpur - Federal Court Civil Appeal No.179 of 1979

STATUTE INVOLVED:

1. Case reffered to Government of Malaysia & Ors. v. Jumat bin Mohamed & Anor.
[1977] 2 MLJ 103.
2. Instructions by the Ministry of Education to all schools, including to the respondents’
school as to the safety measures which should be taken with regard to the use of
agricultural tools. These are:
(1) to maintain sufficient distance whilst working with the tools;
(2) to use proper tools;
(3) to use sharp instruments; and
(4) to maintain discipline.
3. Education Act 1961 (cited in Tie Fatt Hee, 2002):
(1) Section 9: The Ministry of Education has right to issue general directions related
to policies on education;
(2) Section 10: The Ministry of Education has right to issue special directions to any
member of the Central Board formed under Part VII of the Act; the special
directions can also be issued to the manager, gabenor, or any member of a board or
committee established by The Minister of Education under Section 26A(4); the
special directions can also be issued to the worker, head teacher of a school, or an
educational institution.

CASE SUMMARY

In this case, the appellants sued the respondents for damages claiming that they failed
to provide proper supervision and to give proper instructions on the use of agricultural tools to
a group of pupils participating in a gardening class. The case was appealed to the Federal
Court after being dismissed by Ajaib Singh J. of the High Court in favour of the respondents
with the argument that the respondents had given proper instructions and warnings on the use

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of the gardening implements and had taken the reasonable steps and precautions to ensure the
safety of the pupils when using the implements.

The incident happened on March 15, 1971 in Port Dickson Secondary School when a
group of 37 or 38 form one pupils were taking part in a practical agricultural class. The pupils
were instructed to complete six vegetable beds. The beds were arranged in two rows, three
beds in each row. The pupils were grouped in six groups, one group in charged of each bed.
In the morning, the pupils were told to pick up gardening tools from the store room and march
to the place of gardening lessons. In the activity, the first appellant used a spade and one of
his friends, Raja Aminuddin, who was working on the next bed used a changkol with a five
foot long handle. Unfortunately, the changkol has a loose blade and they were working very
close to each other, between 2-7 feet apart. Realising the close distance between them, the
appellant requested Raja Aminuddin not to wield his changkol until he had completed
levelling his vegetable bed, but the request was ignored. The appellant continued his work and
suddenly he was struck on the head by the changkol. Due to that, he suffered 2 ½” lacerated
wound over the right parietal bone and a depressed fracture of the same bone posteriorly. The
teacher, Mrs Hau Kan Yong, was at that time sitting under a tree about 4 yards away from the
appellant’s bed and was not looking at the pupils. She realized the accident only after she
heard someone calling out for her, and saw the appellant holding his head and bleeding.

The decision made by the Federal Court was that the respondents were liable, and
allowed the appeal with costs.

APPLICATION OF THE LAW

In this case, the judges disregarded the negligence of Raja Aminuddin, rather, what
was most concerned was whether the respondents were guilty of negligence for not providing
proper supervision and for failing to give proper instruction on the use of agricultural tools.
There were some points considered by the judges in the trial:

First, it was settled law that a school teacher was under a duty to exercise supervision
over his pupils when they were in the school premises, either in the classroom or the
playground, and the Ministry of Education had already issued instructions to all schools with
regard to the safety measures in using agricultural tools as stated above.

Second, there was no doubt that the accident occured because the appellant was using
a spade and Raja Aminuddin was using a five foot long handle changkol, and the distance

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between them was too close. If both were using spades, with the same distance between them,
the accident could not happened.

Third, the distance between the two pupils was found out to be too close although
there was a doubt in the exact size of the distance. The appellant said it was a 2 feet distance,
a fellow pupil said it was 3 to 4 feet distance, and Mrs Hau Kan Yong said it was a 7 feet
distance.

Fourth, proper supervision on the pupils was not provided when the teacher asked the
students to take the tools from the store-room on their own. No teacher did distribute the tools
to the pupils. If the teacher did, as claimed by Mrs Hau Kan Yong, then she would realize that
the changkol has a loose blade.

Fifth, lack of supervision on the agricultural tools when the teacher did not check the
condition of the tools before using them. In this case, the changkol was reported to have a
loose blade which was very dangerous and should not be used on that morning.

Sixth, lack of supervision during the activity when Mrs Hau Kan Yong claimed that
she did not see the close distance between the appellant and Raja Aminuddin. She failed to
provide any explanation when she was asked why? Thus, she was presumed to be resting
under a shade of a tree looking on to the left side.

Seventh, the instructions given to the pupils were not sufficient when the teacher gave
a general warning to the pupils to be careful and not to fool around when using the
instruments. The warning was considered as not sufficient when looking at the age of the
pupils and their situation at that time, when they were talking, playing about and joking to one
another in very close distance.

Eighth, when comparing to Government of Malaysia & Ors. v. Jumat bin Mohamed &
Anor case, these two cases were different. In the former case, the teacher had provided
sufficient supervision but could not prevent the injury from being inflicted because of the
stupidity of a pupil, whose exuberant behavior was unknown to the teacher. In the current
case, the teacher was aware that the pupils were handling dangerous instruments but neither
she gave them sufficient warning nor she observed the distance between them. Furthermore,
there was a world of difference between the use of a changkol and that of a pencil.

Based on the above facts, the court found out that the respondents were guilty of
negligence for failing to take all reasonable and proper steps to prevent the appellant under
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their care from sustaining the injury. The law was applied in such a way that it was fair to
both the appellants and the respondents. The appellant deserved his right to be supervised
under the duty of care of the respondents, and the respondents got their lessons and reminders
to be more responsible in the future.

CASE ANALYSIS

In analysing the above case, we have to determine whether negligence had happened
or not. When referring to the case of Blyth v. Birmingham Waterworks Co [1856] 11 Exch
781 (cited in Rosilah Yop, 2011), negligence is defined as:

Negligence is the omission to do something which a reasonable man,

guided upon those considerations which ordinarily regulate the conduct of
human affairs, would do, or doing something which a prudent and
reasonable man would not do.
Negligence occurs when one breaches the standard of care, unintentionally fails to act
in a reasonable manner, or commits an improper act that results in injury or loss to another
person (Tie Fatt Hee, 2011). There are four elements of negligence: first, the defendant owed
a duty of care to protect the plaintiff from harm, second, the defendant breached the duty of
care when there was a failure to provide an appropriate standard of care, third, there must be a
causal connection between the breach of the duty to care and the resulting injury, and fourth,
there must be an actual physical or mental injury resulting from the negligence (Tie Fatt Hee,
2011; Yell,1999). Looking at the definition and elements of negligence, it is obvious that the
respondents of the case were negligent.

However, there is no specific statute that governs the law of negligence in Malaysia.
Therefore, in the event where there is no specific statute that governs a particular private law,
Civil Law Act 1956 (Revised 1972) is the most relevant. Based on section 3 of the Civil Law
Act 1956 (Revised 1972), it is clear that, in the event where there is no specific statute that
governs a particular private law, the common law, rules of equity and statutes of general
application, as administered or enforced in England shall be applied so far only as the
circumstances of States of Malaysia and their respective inhabitants permits and subject to
such qualifications as local circumstances render necessary (Muhammad Rizal et al., 2004).
Therefore, the law of negligence in Malaysia is based on the English law of negligence, and
this case is comparable to the cases happened in England.

With regard to this case, in the absence of the law of negligence, the instructions from
the Ministry of Education shall be put into consideration. The circulation (Surat Pekeliling
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Ikhtisas No. 1/1974), dated 8th of July 1974, clearly states that teachers should warn the
students before using or demonstrating the usage of any tool which can cause harm and safety
measures should be taken from all aspects (Ling Kee Eng, 2001). This is supported by the
Education Act 1996, section 9 which mentions: “The Minister may from time to time give-(a)
a governor or any member of a board appointed under subsection 61(1), or an employee or
head teacher, of an educational institution; and (b) a member of the Central Board established
under section 92 of the Education Act 1961; directions, not inconsistent with the provisions of
this Act” (The Commissioner of Law Revision, 2006).

Although the Federal Court’s decision on the case is fair and just, according to my
opinion, it is too sad that the court totally disregards the negligence of Raja Aminuddin, as
though he is not guilty at all. According to the Federal Constitution (Legal Research Board,
2000), under Part II, Articles 5-13; children in Malaysia has the same legal rights as those of
the adults. Actions against him can be taken through the Court for Children as stated in the
Child Act 2001, sections 11-14 (Government of Malaysia, 2001). Furthermore, section 82 of
the Penal Code (Revised, 1968) (The Commisioner of Law Revision, 2006) mentions that the
age of criminal responsibility is 10 years and above, and Raja Aminuddin was supposed to be
13 years old at that time. Therefore, he should be accountable for his own negligence.

CONCLUSION

Based on the analysis, the case was fairly judged by the Federal Court but there are
few things lacking in the Malaysia law itself. Malaysia should have its own bill of rights for
children as promoted by the United Nations Convention on the Rights of the Child (UNCRC),
which was acceded by Malaysia on February 17, 1995 (Tie Fatt Hee, 2011). Other than that,
the court should show their regret of the negligence by the child instead of totally disconcern
about that. After all, I would like to recommend that a ‘safe school’ concept to be adopted in
Malaysia in order to lessen the risk of injuries on school children. Safe school concept is an
initiative to develop proactive strategies to minimize the possibility of school violence and to
maximize the effectiveness of a response if a tragic incident occurs (Van Hollen, 2007).
Besides that, all teachers and academia should be made more aware of legal issues on
education and should take any possible type of precautions to protect them from litigious
actions. Prevention is better than cure and a Malay proverb ‘sesal dahulu pedapatan, sesal
kemudian tidak berguna’.

Wallahua’lam.
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