Case:

Brief Facts:

• Sekolah Menengah Sains Sultan Mahmud (SESMA) Kuala Terengganu is a government residential school.
  
  
• The Appellant, Ahmad Ikhwan Bin Ahmad Fauzi (“Ahmad”) the Plaintiff at the High Court together with the first five defendants cited at the High Court, were students at that school.
  
  
• On 24.6.2015, between the hours of 10.40 pm and 2.00 am of the following day, Ahmad claimed that he was taken to the Bilik Asrama Ketua Pengawas and Penolong Ketua Pengawas located within the school, where he was repeatedly assaulted by the first five defendants.
  
  
• Both the Ketua Pengawas and the Penolong Ketua Pengawas who were in the room, watched. Although they did not take part in the assault, they did nothing to stop it.
  
  
• Ahmad had sustained injuries to his right ear, face and body. Despite his injuries, he did not complain about the incident to anyone for fear of reprisal. The next morning found himself bleeding from his right ear. He informed the warden of the bleeding but not the reason. He was treated at a local clinic with a follow-up scheduled for 29.4.2015.
  
  
• It was only at the follow-up on 29.4.2015 that explained the reasons for the bleeding and of his other injuries. His father was called in and he was then brought to the hospital by his father. There, it was found that he had a perforated right ear, and has since lost hearing in his right ear.
  
  
• A police report was lodged on 30.4.2015.
  
  
• On 27.4.2016, the first five defendants were charged at the Magistrates Court for an offence under section 323 of the Penal Code read with section 34 of the same Code.
  
  
• On 1.6.2016, the first five defendants pleaded guilty to the charge and were given a good behaviour bond for two years with a monetary surety of RM1000.00 under section 173A of the Criminal Procedure Code where a conviction for the offence charged would not be recorded. There was no appeal, be it by these five defendants or by the prosecution.
  
  
• Meanwhile, the appellant transferred to another school, upon his own request.
  
  
• This was after representatives from the school called on Ahmad and his family; offering to settle the incident with a payment of RM1000.00. The offer was rejected however.
  
  
• The school took disciplinary action against the first five defendants. The first four defendants were suspended from school for two weeks whilst the fifth defendant was expelled. He however appealed and was allowed to be transferred to another school.
  
  
• Ahmad had then sued the first five defendants for the tort of assault and battery and the 6th to the 9th defendants for principally failing to ensure that he was safe whilst at the residential school.
  
  
• The 6th Defendant was the Penolong Kanan of the School. The 7th Defendant was the Principal of the School. The 8th Defendant was the Ministry of Education and the 9th Defendant the Government of Malaysia.
  
  
• Ahmad claimed that the 6th to the 9th defendants were also vicariously liable for the tort of the first five defendants.

THE DECISION OF HIGH COURT (HC)

• The HC was satisfied that the claim was proved against 1st to 5th defendants. As for the other defendants, the learned Judge found that since the incident happened well within the premises of the school, the 6th to 9th Defendants were also liable for the acts of the first five defendants.
  
  
• Specifically, the High Court found that had the warden on duty inspected the dormitories including Bilik Asrama Ketua Pengawas and Penolong Ketua Pengawas on that fateful night as it was his duty to do so, it would have made a difference in that the incident may not have occurred.
  
  
• Aside from awarding general damages and special damages, the learned Judge awarded a sum of RM120,000.00 as exemplary damages but made no award for aggravated damages.

THE DECISION OF COURT OF APPEAL (CA)

• All the defendants appealed. Likewise, Ahmad who was dissatisfied with the quantum awarded.
  
  
• CA held that whilst the HC was entitled to rely on the pleas of guilt under section 21 of the Evidence Act 1950, the HC fell into error in relying entirely on such pleas when concluding that the tort had been proved. As cautioned by section 31 of the Evidence Act 1950, “admissions are not conclusive proof of the matters admitted”.
  
  
• According to the CA there was actually insufficient evidence to prove the assault; concluding that the evidence led was inconclusive and inconsistent.
  
  
• As for the 6th to 9th defendants, the Court of Appeal concluded that the High Court was in error in failing to have regard to the fact that the assault and battery was not reasonably foreseeable.
  
  
• Following the case of Government of Malaysia & Ors v. Jumat Bin Ramli [1977] 2 MLJ 103, [1977] 1 MLRA, where it states it was neither reasonable nor logical for these defendants to foresee the occurrence of an assault. These defendants thus did not owe the appellant a duty of care.
  
  
• The CA then dealt with the issue of quantum. Awarded costs of hearing aid at a sum of RM84,000.00 on account of 1/3 contingency and set aside the awards of general damages and exemplary damages. It refused to make any award for aggravated damages.
  
  
• Dissatisfied, Ahmad obtained leave to appeal, posing questions on both liability and on quantum.

THE DECISION OF FEDERAL COURT (FC)

• After a full hearing, FC unanimously allowed the appeal and restored the decision of the HC but declined to make any award for aggravated or exemplary damages.
  
  
• The order of the CA is set aside and the HC orders on compensation are reinstated.
  
  
• FC ordered costs of RM150,000.00 and subject to payment of allocator fee.