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Malayan Law Journal Unreported/1996/Volume /SILVADURAI A/L KUNNARY & ANOR v PENGETUA
SEKOLAH RENDAH JENIS KEBANGSAAN CINA CHUNG HWA ASAHAN, MUAR, JOHOR & ORS - [1996]
MLJU 331 - 22 July 1996
22 pages
[1996] MLJU 331

SILVADURAI A/L KUNNARY & ANOR v PENGETUA SEKOLAH RENDAH JENIS

KEBANGSAAN CINA CHUNG HWA ASAHAN, MUAR, JOHOR & ORS
HIGH COURT (MELAKA)
SURIY ADI J
CIVIL APPEAL NO 11-11 OF 1995
22 July 1996
Meor Hashimi (State Legal Advisor) for the respondent.
Ramasamy (E Ramasamy & Co) for the appellant.

ALASAN PENGHAKIMAN
The plaintiffs in this case were parents of Silvaprakash a/1 Silvadurai, deceased, who was a standard 2
student at Sekolah Rendah Jenis Kebangsaan Cina Chung Hwa. On 18.12.1989 at about 9.45a.m. during
the school recess it was evidenced that the deceased was playing with a see-saw at the
[1996] MLJU 331 at 2
rear of his classroom with another friend (PW4). By some freak accident the child after alighting from the
see-saw accidently tumbled, after tripping, and fell head down on some rocks. Those rocks were deliberately
placed there for landscaping and aesthetic value so as to decorate and beautify the school compound. As a
consequence of that misfortune the deceased succumbed three days later i.e. on 21.12.1989. The plaintiffs
subsequently filed a suit against the defendants viz. the headmaster of the relevant school, the Ministry of
Education and lastly the Government of Malaysia alleging negligence on their part which resulted in the loss
of their child.
On 11.9.1995 after a protracted hearing the learned magistrate dismissed the suit of the plaintiffs with costs.
Being dissatisfied with the decision, the dissillusioned plaintiffs promptly filed the notice of appeal and on
15.7.1996 the said
[1996] MLJU 331 at 3
appeal was heard by me. Zeroing on the law without much ado as regards cases of this nature Salleh Abas
FJ in MOHAMED RAIHAN BIN IBRAHIM & ANOR. v. GOVERNMENT OF MALAYSIA & ANOR [1981]
2MLJ 27 had this to say :
"It is settled law that a school teacher is under a duty to exercise supervision over his pupils when they are in the
school premises, either in the classroom or the playground. The degree of supervision depends on the circumstances
of each case, such as the age of the pupils and what they are doing at the material time. If the teacher knows that the
pupils are engaged in doing acts which are likely to cause injuries to one another, the teacher is under a duty to take
steps to ensure the safety of the acts.".

It was common ground that on the material date the unfortunate child, taking advantage of the school recess,
together with his friend Saravanan a/1 Sanasy (PW4) were happily playing with the see-saw behind the
classroom oblivious of the impending tragedy. There was no serious attempt on the part of the defendants to
deny the subsequent episode whereby the deceased did fall on the rocks. PW4 at page 39 paragraph F said

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:
[1996] MLJU 331 at 4
"Kawasan itu dipenuhi dengan simen sekitar jongkang-jongkit dan terdapat rumput disekitar longkang. Saya nampak
Siva jatuh. Terdapat batu-batu yang dikumpulkan untuk tujuan pembinaan berhampiran pokok bunga dan Siva semasa
berjalan terlanggar batu-batu yang dikumpulkan. Batu-batu tersebut batu putih. Saya ada nampak Siva jatuh.
Kepalanya terkena pada batu besar dan badannya terkena pada batu kecil.".

Letchumy a/p Selliah (PW5) another classmate of the deceased at page 52 of the Records of Appeal
admitted that Saravanan did inform her of the unfortunate incident which befell the deceased. She was
informed as to where and how the deceased fell. The relevency of this piece of evidence was not to prove
the truth of that statement but merely to confirm that she was informed of the unfortunate incident within
minutes of its occurrence.
The challenge to the facts adduced by the plaintiffs came thenceforth namely as to what actually happened
in the classroom. PW4 graphically said the deceased vomitted in the classroom but was denied by the
defendants. For easy reference I
[1996] MLJU 331 at 5
reproduce what was said by PW4 at page 39 paragraph C :
"Selepas itu Siva muntah darah. Masa itu ada cikgu dalam bilik darjah. Saya tidak tahu nama cikgu tapi cikgu
perempuan. Ada seorang guru wanita suruh saya basuh dan bersihkan muntah. Saya ada bersihkan muntah itu. Saya
nampak Siva terbaring atas meja.".

Evidence to this effect was also confirmed by PW5 as reflected at page 51 paragraph C. On this contentious
point the class teacher one Chan Chai Teng (DW2) at page 82 merely said that when the deceased came to
see her only the knee and elbow were bruised whilst the rest of his body showed no sign of injury. Having
located the bruises she applied some iodine on them. At page 86 she denied the dramatic events of the
deceased vomitting. She also did not detect any injuries on the deceased's face. This lady witness further
evinced that in class Sivaprakash was his normal self carrying out diligently her instructions. DW1 who was
the headmaster of that relevant school did confirm
[1996] MLJU 331 at 6
at page 69 that DW2 did bring the deceased's predicament to his attention. He was informed that the child
had suffered some minor injuries and iodine had been dabbed on the bruises. As regards the vomitting
episode he was oblivious of it as no one kept him informed. The headmaster also confirmed that he found it
unnecessary to consult a doctor as the relevant teacher had informed him that the injury was merely on the
leg (page 73 of the Records of Appeal).
At 1.00p.m. the adopted mother (PW2) of the unfortunate child came to fetch him and with that cut off point,
the responsibility over the child shifted to the mother. Having taken the child she immediately brought him to
a clinic in the estate but unfortunately was closed. She then turned for home but later left for a clinic in Jasin.
A doctor managed to see the deceased and prescribed him glucose and thereafter prompting them to return
home. On the way home, as the child was observed to be weak, he was again taken to the clinic located in
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the estate by PW2. There "a dresser" similarly prescribed the consumption of some glucose. She then
returned home but later by taxi transported the child to the hospital in Tangkak for further observation. The
next day the child was brought to the General Hospital of Malacca but on 21.12.89 succumbed to his
ailments. From the evidence adduced as at page 36 Dr. Mohd Nazir bin Abdul Rahman (PW3) admitted that
the deceased had collapsed at about 6.00p.m. the very same day the unfortunate incident happened. The
learned counsel for the plaintiffs admitted this fact.
The plaintiffs made much out of the remarks of PW3 at page 36 which read :
"Collapse pukul 6 petang. Semasa 8.30 malam di Hospital Tangkak dalam keadaan tenat. Sekiranya dari masa dia
collapse dia terus ke Hospital Besar Melaka mungkin boleh diselamatkan. Sekiranya pada waktu dia muntah, discan
diberi rawatan mungkin dapat diselamatkan. Ini terpulang juga kalau cukup facilities mungkin boleh diselamatkan.".
[1996] MLJU 331 at 8

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On this unsubstantiated medical opinion of PW3 (there was nothing in the evidence to confirm that he was a
surgeon with the necessary expertise) that the child could have been saved had he been brought to the
hospital immediately after he had collapsed these questions whizzed around my head :
1.
2.
3.
4.
5.
6.

as the child had collapsed in Tangkak's hospital and not in school should the responsibility of
taking the child to the General Hospital not lie with the adopted mother or the responsible
hospital?;
even before any surgery could be carried out surely a lot of preliminary studies to diagnose the
injury would have had to be undertaken, like scanning, x-ray, etc.?;
would any doctor in his right mind operate on that child unless all the alternatives had been
discounted?;
[1996] MLJU 331 at 9
even if a head surgery was necessary was there proof to confirm the fact that the hospital had
the necessary equipments?;
with all these delaying factors could the child be eventually saved?; and lastly
even if the child had been promptly operated could he have been saved? (I found no evidence
adduced that could confirm with certainty).

Some of these points could not be disputed by the learned counsel and conceded that it was improbable that
a doctor would immediately operate on that child without being in possession of the relevant data and
equipments. No one could deny that this was a major medical exercise which entailed tremendous
preparation and suitable expertise. On a reflection even if I had agreed with the earlier submission of the
learned counsel for the plaintiffs that had the child been sent to
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the General Hospital in Melaka at the earliest moment I was not convinced that the treatment by the hospital
would be any different to that given by the doctor and dresser in the respective clinics in Jasin and Asahan.
Similarly there was no medical evidence to confirm that the unfortunate child could have been saved had he
been sent direct to hospital from school.
Apart from the medical doubts which were besetting me I found these additional factors which negatived the
plaintiffs' case :
1.

2.
3.

the undisputed time lapse of five hours after leaving the school premises and before he
collapsed. He was collected from the premises of the school by his adopted mother at 1.00p.m.
whilst he collapsed at about 6.00p.m. During these intervening hours what really happened was
shrouded with mystery;
[1996] MLJU 331 at 11
why did the mother not send the child to the General Hospital Melaka immediately when by her
own admission she admitted witnessing the vomitting session before her. During this crucial
period she was in charge of the welfare of the child;
in stark distinction to the mother's evidence the class teacher denied seeing the deceased
vomitting at any period of time. The plaintiffs attempted their utmost to establish that incident
but was rejected by the learned magistrate after assessing the evidence in toto. On this point
may I be permitted to refer to the case of CROFTER HAND WOVEN HARRIS TWEED CO.,
LTD., AND OTHERS v. VEITCH AND ANOTHER [1942] 1 A.E.R. page 142 esp. 167 where
Lord Porter said :
"It is unnecessary to emphasise the principle, so often recognised by your Lordships, that, in all cases
where facts have to be reviewed, it is undesirable that the findings of the courts below
[1996] MLJU 331 at 12
should be disturbed by a court of appeal unless it appears that those findings are clearly wrong, and
more especially that it is undesirable to do so where the conclusions reached must to a large extent
depend upon the demeanour of the witnesses and the impression formed by a tribunal which has
seen them and can judge of their honesty and accuracy.".

This relevant principle of law was followed by the Federal Court in China Airlines Limited v

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Maltran Air Corporation Sdn Bhd (formerly known as Maltran Air Services Corporation Sdn
Bhd) and Anor Appeal [1996] 2AMR 2233. In this case the Federal Court interfered with the
findings of fact of the court below based on the proposition that an appellate court would more
readily interfere with the judge's finding of fact which depended largely upon inferences drawn
from other facts. Having perused the findings of the learned magistrate who had made specific
findings over the evidence of all the witnesses and being mindful of the remarks of Mohamed
Dzaiddin FCJ I was hard pressed to dispute her findings. The
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learned magistrate after many days of hearing had the full benefit of listening and assessing
the demeanour of the witnesses and finally eventuate on them. She was in the right seat, place
and time to assess any twitch, hesitancy, unusual behaviour or even the changes in the level of
their voices when testifying. These factors reached a higher level of prominence and
significance especially with regard to the two children who despite being minors were expected
to recall an incident that ocurred five years earlier. On 16.8.94 when PW4 and PW5 who were
peers gave evidence they were 12 year olds whilst at the date of the incident they were mere
six year old children. How they managed to remember the incident that happened many years
ago that would have caused expected agonising moments even for an adult due to memory
lapses was beyond the court's understanding or comprehension. With all these factors
confronting me I was not convinced that the deceased vomitted in
[1996] MLJU 331 at 14
class. Regardless of this stance even if I were to accept PW4 and PW5's evidence as against
that of DW2 the matter did not end there. I still had to proceed further and consider the other
eight questions or doubts which I mentioned earlier. In other words there were other obstacles
to consider.
Retracting slightly the court had to consider the reaction of the teacher the moment she was confronted with
the bruises when exposed to her. Since I had decided that there was no conclusive evidence to confirm that
the teacher witnessed the vomitting I then proceeded on that premise. Here was a teacher, DW2 faced with
a child covered with some bruises but was behaving normally in the accepted sense. She reacted promptly
by applying some iodine on the affected areas and subsequently brought the matter to the headmaster's
attention. I then asked myself the relevant question, had I been
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a mere teacher who had no medical background, would I not have reacted the same way and in similar
fashion as that of DW2 in the circumstances of the case? My conclusion was resoundingly positive. Not only
had DW2 given immediate medical attention to the child but had also adhered to the required guidelines
when she reported the matter to the headmaster. In other words DW2 had acted reasonably. I was further
fortified by the belief that if the doctor in Jasin and the dresser in Asahan could not manage to detect the
internal haemorrhage or the seriousness of the injury how was the court to judiciously expect the teacher to
do any better?
There was a mild attempt by the learned counsel to castigate the school for placing the rocks close to the
see-saw which had culminated in death. Much had I sympathised with this argument I was not oblivious to
the fact that this was not a question of a child who fell from a defective see-saw or while playing the see-saw
was flung off the seat and landing on the jutting rocks. This was a case of
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one of the two children having alighted from the see-saw while walking towards the classroom, tripped, and
unfortunately fell headlong on some rocks. If the school were to be reprimanded for laying those rocks near
the playground which had caused the fatal injury then on the same argument if the child had fallen on some
other rocks much further away from the playground the school would still not escape the rebuke. Some level
of risk in life had to be taken as otherwise there would be no end to matters of this nature. Let us not forget
that the other child did not trip even though they were together. To submit to the submission of the plaintiffs
might lead to unexpected suits where courts would be held liable whenever counsels suffer injuries after
accidently knocking their heads on some beautifully carved bar table despite the good intentions of the court
to ensure the comfort of the legal fraternity. The remarks of Lord Porter in BOLTON AND OTHERS v STONE
[1951] Vol. 1 page 1078 at 1081 paragraph A are highly relevant where he said :
[1996] MLJU 331 at 17

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"It is not enough that the event should be such as can reasonably be foreseen. The further result that injury is likely to
follow must also be such as a reasonable man would contemplate before he can be convicted of actionable negligence.
Nor is the remote possibility of injury occuring enough. There must be sufficient probability to lead a reasonable man to
anticipate it. The existence of some risk is an ordinary incident of life, even when all due care has been, as it must be,
taken.".

As regards whether sufficient warning had been posted to the users of the playground, the headmaster
(DW1) at page 77 clearly indicated that during school assemblies children were informed of the dangers of
the see-saw on the school premises. Supervisors and teachers were also around to advise children of the
lurking dangers. On this point of supevision and warning permit me to reproduce the dicta of Lee Hun Ho J.
(as he then was) in CHEN SOON LEE v. CHONG VOON PIN & ORS. [1966] 2MLJ 264 at page 267 which
reads :
"The teachers had done all they possibly could to ensure the safety of the students. There is no evidence to show that
any of the teachers had been at fault or neglected their duty thus causing
[1996] MLJU 331 at 18
deceased to get drowned. The amount of supervision required depends on the age of the students and what they were
doing at the time. The teachers had done more than was necessary. They kept the students under continuous
supervision. There was nothing the teachers, or for that matter any other person, could do to fight against an
unfortunate occurrence of circumstances.".

I was satisfied that sufficient action had been undertaken by the school to warn the children of the dangers of
playing with the see-saw. To exact unusually stringent measures would be stretching the duty imposed on
the school as this is not a war zone.
Further on this point might I hasten to clarify that the see-saw was not the cause of the fatal injury but a fall
on some hard object which was totally unconnected with the latter. It would thus be unreasonable, to say the
least, if teachers were to be responsible to ensure that students were not injured after being in contact with
some hard
[1996] MLJU 331 at 19
objects within the compound of the school in every circumstance. No doubt it was foreseeable that children
would fall and possibly be injured while running around in exhuberence but the law requires more than that.
As Lord Denning in BROWN v. NATIONAL COAL BOARD [1962] 1 A.E.R. 81 esp. page 89 paragraph H
said "....for the common law does not require a man to provide security against a possible cause of injury,
even though it is forseeable" (see also supra BOLTON AND OTHERS v. STONE).
I further seek solace from the case of Zazlin Zahira Hj Kamarulzaman (an infant) suing by his father and next
friend, Hj Kamarulzaman b Mohd Ali lwn Louis Marie Neube RT Ambrose a/1 Ambrose & 2 Yg Ln [1994] (3)
AMR 47 2518 at page 2519 under held 1 which reads :
[1996] MLJU 331 at 20
"1.(a) Seorang guru bertanggung jawab menjaga keselamatan murid-murid di bawah jagaannya. Kewajipan
berhati-hati ini mesti mengambil kira peluang dan kebolehan guru itu untuk melindungi murid-murid dari bahaya yang
diketahui, dan tahap kewajipan ini adalah sama dengan kewajipan seorang bapa yang mempunyai anak ramai. Ia
bukan kewajipan menjamin tidak akan berlaku kemalangan, tetapi sekadar kewajipan berhati-hati dengan munasabah
untuk menjaga keselamatan murid-murid. Undang-undang tidak meletakkan tanggung jawab yang keras (strict liability)
ke atas guru.".

Raja Azlan Shah FJ (as he then was) in GOVERNMENT OF MALAYSIA & ORS. v. JUMAT BIN MAHMUD
& ANOR. [1977] 2MLJ 103 at page 104 para D had this to say :
"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
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). It is not a duty of insurance against harm but only a duty to
[1996] MLJU 331 at 21
take reasonable care for the safety of the pupil. The duty is aptly described by the learned Chief Justice of Victoria in
the judgment of the Full Court in Richards v. State of Victoria when he said :

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"The duty of care owed by (the teacher) required only that he should take such measures as in all the
circumstances were reasonable to prevent physical injury to (the pupil). This duty not being one to
insure against injury, but to take reasonable care to prevent it, required no more than the taking of
reasonable steps to protect the plaintiff against risks of injury which ex hypothesi (the teacher) should
reasonably have foreseen.".

Having perused the notes of evidence I was not convinced that the plaintiffs had proven every fact traversed
in their cause of action in order to obtain judgment in their favour (see Nasri v. Mesah [1971] 1MLJ 32/34;
Yong Book Fong v. Nallakaruppan Chettiar & Ors.[1972] 1MLJ 13/17). On the other hand I was satisfied that
there was sufficient supervision over the school children with regard to the playground. I was also satisfied
that the teacher had acted reasonably after being confronted with the condition of the child until the handing
over to the adopted mother. If the evidence of the
[1996] MLJU 331 at 22
doctor, subpeoned by the plaintiffs, were anything to go by that the child could have been saved after he
had collapsed had he been taken to hospital immediately surely that was the death knell of the plaintiffs'
case. The fact that the child's condition deteriorated whilst under the supervision of the adopted
mother/hospital surely exonerated the school. The uncertainty of the availability of the equipments and the
probable delay before any surgery due to preliminary observations would be of no help either to the plaintiffs'
case. On the above grounds I dismissed the appeal with cost.
[1996] MLJU 331 at 23
RUJUKAN
1.
2.
3.
4.
5.
6.
7.
8.

MOHAMED RAIHAN BIN IBRAHIM & ANOR. v. GOVERNMENT OF MALAYSIA & ANOR
[1981] 2MLJ 27.
CROFTER HAND WOVEN HARRIS TWEED CO., LTD., AND OTHERS v. VEITCH AND
ANOTHER, [1942] 1 A.E.R. 142.
China Airlines Limited v Maltran Air Corporation Sdn Bhd (formerly known as Maltran Air
Services Corporation Sdn Bhd) and Anor Appeal [1966] 2AMR 2233.
BOLTON AND OTHERS v STONE [1951] Vol.1 1078.
CHEN SOON LEE v. CHONG VOON PIN & ORS.[1966] 2MLJ 264.
BROWN v. NATIONAL COAL BOARD [1962] 1 A.E.R. 81.
Zazlin Zahira Hj Kamarulzaman (an infant) suing by his father and next friend, Hj
Kamarulzaman b Mohd Ali lwn Louis Marie Neube RT Ambrose a/l Ambrose & 2 Yg Ln [1994]
(3)AMR 47 2518.
GOVERNMENT OF MALAYSIA & ORS. v. JUMAT BIN MAHMUD & ANOR. [1977] 2MLJ 103.