IN THE COURT OF APPEAL OF MALAYSIA (APPELLATE JURISDICTION)
THE PALACE OF JUSTICE
CIVIL APPEAL NO. Q-01-443-10/2012
MASTER BRISBANE ANAK ITANG
(1) MR ROBINSON LEE
(2) MR RONALD SOON GUAN BOON
(3) THE DIRECTOR-GENERAL OF EDUCATION, MINISTRY OF
(4) THE DIRECTOR-GENERAL OF HEALTH, MINSTRY OF
(5) GOVERNMENT OF THE STATE OF SARAWAK
(6) GOVERNMENT OF MALAYSIA
[In the matter of the High Court of Sabah and Sarawak at Kuching
Civil Suit No. 22-119-2010]
Master Brisbane Anak Itang v.
(1) Mr Robinson Lee
(2) Mr Ronald Soon Guan Boon
(3) The Director-General of Education, Ministry of Education
(4) The Director-General of Health, Ministry of Health
(5) Government of The State of Sarawak
(6) Government of Malaysia]
MOHD HISHAMUDIN YUNUS, JCA ABDUL WAHAB PATAIL, JCA BALIA YUSOF WAHI, JCA
JUDGMENT OF THE COURT
This is an appeal against the decision of the High Court of Kuching of 18 September 2012.
The learned Judge of the High Court had dismissed the appellant’s/plaintiff’s claim against the respondents/defendants for damages for the tort of negligence.
We heard this appeal on 19 June 2013, and we reserved judgment. Today, we deliver our judgment.
We, unanimously, dismiss this appeal with costs.
At the High Court six defendants were named. However, at the hearing of this appeal, the appellant/plaintiff focused liability only on the fourth and sixth respondents (the Director-General of Health of the Ministry of Health and the Government of Malaysia, respectively). The claims against the other respondents/defendants were abandoned.
Hereinafter, in this judgment, we shall be referring to the appellant/plaintiff as the ‘plaintiff’ and the respondents/defendants as the ‘defendants’.
The plaintiff commenced the action by his next friend, his father (Itang Anak Lang), as at the time of filing the action, he was an infant.
The facts of the case that led to the filing of the writ action for negligence are these.
At the material time the plaintiff was 10 years old. He lived with his parents, grandmother and siblings at a village called ‘Kampong Danau Melikin, Balai Ringin’, in the District of Serian, Sarawak. He attended a primary boarding school called ‘Sekolah Kebangsaan (Cina) Sungai Menyan, Serian’ (‘the School’). The plaintiff was admitted to the School
in 2003. The School was situated near a pig farm. The pig farm was less than 2 kilometer away from the School.
On Monday 25 September 2006, the plaintiff came down with fever. His teacher, the first defendant, sent the plaintiff to the Government clinic at Balai Ringin for treatment. At the clinic, the medical staff who attended to him, prescribed some panadols and a cough syrup; and, thereafter, the first defendant took the plaintiff back to his village, as it was the practice of the School to send a sick pupil back to his/her home. On 28 September, the plaintiff’s mother, seeing the plaintiff being very sick, sent him to the Serian District Hospital. There, he was treated for suspected meningitis. His condition, however, got worse. So, on 30 September he was transferred to the Sarawak General Hospital (SGH) where he was diagnosed to have been infected with the Japanese Encephalitis (JE) virus.
As a result of the infection, the plaintiff suffered brain damage. He is permanently disabled physically and mentally and requires lifetime care.
The learned trial judge made a finding that on a balance of probabilities the plaintiff was infected with the JE virus at the School, by reason of the School being located near a pig farm. However, he ruled that the Department/Ministry of Health was not liable in negligence.
It is not disputed that pigs are the natural hosts of the JE virus; and that from pigs the virus may be transmitted to human beings via the culex mosquitoes. It is also not in dispute that the plaintiff’s school is a high-risk area (for JE infection) by reason of its proximity to a pig farm.
The school is under the responsibility of the Ministry of Education. However, the authority responsible for the health of the pupils at the School was the Department of Health of Sarawak, which is under the Federal Ministry of Health.
There was an outbreak of the JE virus in the District of Serian, Sarawak, in 1992.
In 2001 there was a Circular and Guidelines issued by the Ministry of Health dated 10 May 2001 directing the Department of Health of
Sarawak to immunize, among others, children of 1-15 years of age, living within pig farms or in areas within two kilometers of pig farms, against the JE virus. This Circular and Guidelines, although issued in 2001, was implemented in the State of Sarawak in January 2002. It is not in dispute, however, that, the implementation of the Circular and Guidelines was carried out at a very slow pace in Sarawak as the implementation of the immunization program required the cooperation of other Ministries and Departments, such as the Education Department and the Education Ministry. Moreover, there were problems in the implementation of the program due to shortage of vaccines and shortage of Governmental funds. Thus, in spite of the 2001 Circular and Guidelines, at the time of the plaintiff’s infection, the pupils of the School, were yet to be vaccinated against the JE virus.
At the material time, the plaintiff was the only person at the School infected with the JE virus. There is, however, no evidence that prior to the incident (that is, the plaintiff’s infection) there has been an outbreak of the JE virus on any premises near the School.
It is not in dispute that there is no specific legislation imposing a statutory duty or obligation on the part of the Department/Ministry of Health to immunize school pupils against the JE virus.
The only issue in this appeal is whether in the light of the Circular and Guidelines of the Ministry of Health, the Department/Ministry of Health (and, vicariously, the Government of Malaysia) is liable in negligence for the failure to vaccinate the pupils of the School against the JE virus, considering the proximity of the School to a pig farm.
In dealing with this issue, we begin by asking ourselves this question: on the facts of the case, should we rule that the Department/Ministry of Health owe a duty of care to the plaintiff to ensure that he would be immunized against being infected with the JE virus? To put it in another way: on the facts of the case, is it fair, just and reasonable that the law should impose such a duty of care on the Department/Ministry of Health (see the judgment of Lord Bridge of Harwich in Caparo Industries Pic v Dickman & Others  2 AC 605 (HL(E));
followed by this Court in Loh Chiak Eong & Anor v. Lok Kok Beng
& Ors  1 MLJ 27).
The plaintiff submits that by reason of the Circular and the Guidelines issued by the Ministry of Health, and considering the proximity of the School to a pig farm, there was a breach of the common law duty of care on the part of the Department of Health/Ministry of Health vis-avis the plaintiff when it fails to vaccinate the plaintiff against the JE virus.
In our judgment, we hold that the Department/Ministry of Health did not owe a duty of care to the plaintiff to ensure that the plaintiff would be immunized against being infected with the JE virus. Having considered the circumstances of the case, we prefer to adopt a more cautious approach in deciding whether or not to impose any liability on the Department/Ministry of Health in relation to the plaintiff. We take the position that it would not be fair, just and reasonable to impose a common law duty of care on the Department/Ministry of Health to ensure that the plaintiff would be immunized against being infected with the JE virus. Firstly, there had not been a recent outbreak of JE
virus infections in areas nearby to the School prior to the incident. Secondly, the immunization program covers the whole country, and the implementation of the policy or program required the cooperation of other Governmental agencies. Thirdly, there were the shortages of vaccines and budget constrains. Finally, to impose any common law duty of care on the Department/Ministry of Health under such circumstances will have far reaching implications: it would, in future, be opening a floodgate of litigation against the Department/Ministry of Health. In the Australian High Court case of Sutherlands Shire Council v Heyman and Another  60 ALR 1 it was said –
A public authority is under no duty of care in relation to decisions which involve or are dictated by financial, economic, social or political factors or constrains.
In our view, the above principle should apply to the present case.
[Appeal dismissed with costs of RM10,000; deposit refunded to appellant.]
(Dato’ Mohd Hishamudin Yunus)
Judge, Court of Appeal Palace of Justice Putrajaya
Date of decision and written grounds of judgment: 11 October 2013
Mr. Shanker Ram Asnani and Mr. Daniel Long (Messrs Loke, King Goh & Partners Advocate) for the appellant
Encik Mohd Taufik bin Mohd Yusoff, Senior Federal Counsel (Office of the Attorney-General), for the respondents