By
U K Menon & Dr Wan Abdul Manan Wan Muda
The Federal Court’s decision issued on 29 March 2024 of a
case of bullying in a government residential school has important implications
for how schools, the Ministry of Education, and the Government respond to
bullying on school premises. The court's ruling sheds light on the legal
obligations and responsibilities related to preventing bullying in educational
settings.
The name of the case is not being disclosed to protect the
privacy of the students involved, the
Bullying in Schools
Bullying is a problem that has been present in our schools
for a long time. Unfortunately, it appears to be getting worse as time goes on.
According to the Ministry of Education, there were 4,994 cases of bullying
reported until October of last year. This number is even higher than the
already worrying 3,887 cases reported in 2022.
Acknowledging this problem, the Ministry of Education,
schools, teachers, NGOs, and even the public have implemented strategies to
counteract this phenomenon. Most of these strategies are focused on educating
the perpetrators and victims of bullying on how to avoid or resist bullying.
The Federal Court decision now adds a legal duty on schools and the education
system to prevent bullying. It establishes parameters of the duty of care and
the standards of safety to prevent this growing scourge.
The case is an extreme instance of bullying that took place in
a government residential school. The student victim was assaulted by five
students leaving him with injuries that left him deaf in one ear. No reasons for
the assault are disclosed in the judgment. The student victim was taken into the
quarters of the head prefect where he was continually assaulted in the middle
of the night for almost five hours. The perpetrators beat, kicked, and
assaulted him in different ways.
Despite the injuries that were inflicted on him, the student
victim did not report the incident to the school authorities for fear of
reprisals. He only revealed the cause of his injuries when he went for
follow-up treatment at a local clinic three days after the assault. It was only
then that his father was informed. His father took him to hospital and a police
report was made.
The five assailants were charged at the Magistrates' Court
for an offence under the Penal Code. They
each pleaded guilty to the charge and were put on good behaviour bonds for two
years with a monetary surety of RM1000.00. No conviction was recorded.
The Federal Court’s decision was the culmination of a civil
suit the student victim had initiated in the High Court. His action was against
his five assailants, the Head of the School, the Senior Assistant in charge of
student affairs, the Ministry of Education, and the Government of Malaysia, the
latter two on the ground that they were responsible for the actions of the
other defendants.
The High Court had decided in favour of the student victim.
The judge hearing the case was satisfied that the claim was proved against all
the nine defendants named in the suit. The first five defendants for the actual
assault, the Head of the School, and his Senior Assistant because the assault
took place on the premises of the school and were thus liable for the acts of
the first five defendants. The Ministry of Education and the Government of
Malaysia were held vicariously liable.
The decision of the High Court was however, reversed by the
Court of Appeal which was not satisfied that there was adequate evidence to
establish the assault, that the school owed a duty of care, or if there was a
duty, the assault in the instance was foreseeable by the school.
The student victim applied for and was granted leave to
appeal to the Federal Court, which reversed the decision of the Court of Appeal
on all points raised by the latter court.
The Decision of the Federal Court
This note only deals with the Federal Court’s decision on
the defendants’ liability for the bullying on the school’s premises. It does
not deal with the Court of Appeal’s doubts about whether the assailants’ admission
of guilt in the Magistrate’s court was sufficient to establish the civil action
in tort for the assault inflicted on the student victim.
About the duty of care to students
The Federal Court emphasised the importance of safety in
schools.
‘It goes without saying that
schools, residential or otherwise must be safe and conducive for the purpose(s)
intended. Otherwise, the providers and consumers of such institutions would
face considerable difficulties in enrolment, whether of student or teaching
faculty.’
Government schools, established by the Ministry of Education,
despite having a physical presence and a name, are not legal entities and as
such legal duties cannot be imposed on them. A duty of care for the safety of students
and other persons who may be on the premises of the school falls on the
teachers, the officials of the school such as the principal and ultimately on
the Ministry of Education, and the Government.
Teachers’ Duty to Students
The Federal Court reiterated the special relationship
between teachers and similar personnel and the student. Because of that
relationship, the teachers owe a duty to the student to take reasonable care
for the safety of the student. This includes a duty to supervise the students
when the students are within the school to maintain discipline, safety and the wellbeing
of the students. The degree of supervision depends on the circumstances of each
case. This account of the relationship resonates with the traditional theory
that teachers stand in the position of parents (in loco parentis) to their
students. Under that theory, teachers are said to have the same power over
their students and the same responsibilities as parents over their children.
Duty of the Ministry and the Government
The Federal Court held that the Ministry of Education and
the Government of Malaysia also owed a duty to all students enrolled in the
school, collectively and individually. According to the Court, these defendants
‘are responsible for their safety, welfare and well-being, and 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’. In the instant
case, the Federal Court held both the Ministry and the Government vicariously liable
for breaches of the duty of care by the school officials and for the actions of
the students who assaulted the student victim because the assailants too were
registered as students in the school.
Duty of Care to Prevent Bullying in Schools
As stated earlier the apex court’s decision establishes a
duty on teachers, other school officials, the Ministry of Education, and the
Government to prevent bullying in schools.
The Federal Court also lays down the standard of safeguards
that must be implemented against bullying, regardless of whether the school is
residential or otherwise. The Court stipulates three areas of action for
schools to discharge their duty to prevent bullying.
First, there must be a dissemination of awareness of
bullying through posters and other means, which the Court said would serve to
prevent bullying.
Next, it stipulates that that the curriculum must include a
teaching of values and mutual respect. In this respect, it states that ‘the
discipline of students of all ages remains a necessary part of any education
curriculum. Basic values of mutual respect for one another must be inculcated
in all our young and it should not be left to expensive and unfortunate
incidents such as were revealed in the appeal to remind us of these values.’
Thirdly, the Court held that 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 wellbeing of the students. The degree of supervision depends on the
circumstances of each case. Evidence in the instant case revealed that spot
checks that were normally carried out in the room where the assault took place
were not carried out on the night of the incident.
Concluding Remarks
The Federal Court’s decision is based on a case of bullying
where physical violence was inflicted on the victim
Bullying is
manifested in many ways. Physical abuse as happened in the instant case is only
one way bullying is done in schools. Other forms of bullying can be subtle and
covert, creating fear and anxiety in the victims that can be as serious or
worse than physical abuse. Although these latter forms of bullying are not
dealt with in the Federal Court’s decision, schools and the Ministry must consider
them when deciding on ways to prevent bullying.
Finally, while the Federal Court’s decision was based on
events in a Government school, it is submitted that the same duty of care will
apply to private and international schools and institutions of higher
education.
