Court of appeal dismissed former special needs student's appeal in bullying suit

The Star

2 days ago

PUTRAJAYA: The Court of Appeal has dismissed an appeal by a former student of a special education secondary school who sought damages and declaratory relief over alleged bullying and the failure to provide proper special education.
The appellant, now 27, had been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) and Asperger's Syndrome.
The Court of Appeal three-member bench, comprising Justices Datuk Mohd Nazlan Mohd Ghazali, Datuk Azmi Ariffin and Datuk Faizah Jamaludin, dismissed the appeal after ruling that the appellant failed to prove his claim against the school, the school principal, the Malaysian government and the Education Ministry.
The appellant, through his adoptive mother, had filed the lawsuit in 2017 at the High Court against the school, the school principal, the Malaysian Government and the Education Ministry.
He claimed the respondents breached their duty of care, which caused him to be a victim of physical and verbal attacks whilst at the premises of the school.
In the 44-page judgment, which was uploaded on the judiciary's website on Monday (Aug 4), the appellate court affirmed the Feb 2023 decision of the High Court in dismissing the suit filed by the young man.
Justice Mohd Nazlan said there was insufficient evidence that the respondents failed to ensure a proper and appropriate education and teaching facilities for the young man.
He said the appellant failed to prove the allegation of bullying incidents on the balance of probabilities, and also did not prove the actual occurrences of the verbal and physical assault as claimed by the appellant.
Justice Mohd Nazlan observed that the appellant did not testify in his case, and the testimony provided by his adoptive mother was deemed hearsay and therefore inadmissible.
"The appellants' (appellant and adoptive mother) case regarding the alleged incidents could not succeed, as the individual accused of harassing and assaulting the appellant was neither named as a party to the suit nor subpoenaed to testify as a witness,' he said.
The court stressed that bullying has no place in any civilised society, but found the evidence presented in the case insufficient to prove that the appellant had been victimised.
"In this case, we are not unsympathetic to the problems and plight encountered by the appellants.
"There may have been disagreements or even altercations, especially involving the first appellant and H (the individual in question), but the court must decide based on facts and evidence,' said Justice Mohd Nazlan.
He said school authorities, including teachers and staff, undoubtedly owe a duty of care to ensure the safety of their pupils and students within the compound and premises of the school and that they were responsible for the students' safety, welfare, and well-being.
"Schools must, in their operations, adhere to the regulations, standards, and policies issued by the education authorities, particularly concerning the provision of special education for students with special needs,' he said.
However, he added that no breaches of these duties had been established in this case.
In the statement of claim, the appellant claimed he was bullied several times at the hostel, including being spat at while he was praying, tied to his bed, punched and kicked, and his belongings were stolen.
He claimed that no action was taken by the school and its principal, despite numerous complaints lodged.
In the statement of defence filed on July 24, 2017, the school stated that the placement of the student concerned was made based on the choice made by the boy and his adoptive mother during registration. — Bernama