A Duty to Prevent Bullying in Schools

 

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.