DALAT INTERNATIONAL SCHOOL SDN. BHD. 1. ) YONG OI LING 2. ) XXXX

PA-12BNCvC-12-05/2023 Kand. 57 20/06/2025 08:40:53 DALAM MAHKAMAH TINGGI MALAYA DI PULAU PINANG DALAM NEGERI PULAU PINANG (BIDANG KUASA RAYUAN) RAYUAN SIVIL NO: PA-12BNCVC-12-05/2023 ANTARA 1. DALAT INTERNATIONAL SCHOOL SDN. BHD. (12273D) 2. SHANTEL SEEVARATNAM (sebagai pengetua Dalat International School Sdn Bhd dan/atau individu) ... PERAYU-PERAYU DAN 1. YONG OI LING 2. AUDREY THONG YONG RAY (Melalui Wakil Litigasi dan Ibunya Yong Oi Ling) …RESPONDEN-RESPONDEN [DALAM PERKARA MENGENAI MAHKAMAH SESYEN DI PULAU PINANG DALAM NEGERI PULAU PINANG NO. GUAMAN: PA-B52NCVC-57-10/2018 ANTARA 1. YONG OI LING 2. AUDREY THONG YONG RAY (Melalui Wakil Litigasi dan Ibunya Yong Oi Ling) …. PLAINTIF 1 S/N wWIZLP2mQUKv21JdQrQ5DQ **Note : Serial number will be used to verify the originality of this document via eFILING portal DAN 1. DALAT INTERNATIONAL SCHOOL SDN. BHD. (12273D) 2. SHANTEL SEEVARATNAM (sebagai pengetua Dalat International School Sdn Bhd dan/atau individu) …. DEFENDAN-DEFENDAN JUDGEMENT A. INTRODUCTION [1] This is an appeal by the Appellants/Defendants against the decision delivered by the learned Sessions Court Judge (SCJ) on 6 April 2023, wherein the SCJ allowing the Respondent’s claim as follows: - [a] The Appellants to pay RM 30,000.00 as general damages for breach of duty of care and negligence to the Respondents. [b] The Appellants to pay RM 22,800.00 as special damages to the Respondents. [c] The Appellants to pay RM 20,000.00 cost to the Respondents. [d] 5% interest on the judgement sum awarded. [2] For the purpose of this Judgment, the parties shall be referred to as the Plaintiff and the Defendants, as they were in the Sessions Court. 2 S/N wWIZLP2mQUKv21JdQrQ5DQ **Note : Serial number will be used to verify the originality of this document via eFILING portal B. BACKGROUND CASE [3] The 1st Plaintiff is the mother of the 2nd Plaintiff, who was enrolled as a student under the Pre-school (Age 3) programme with the 1st Defendant for the August 2017 intake. The Plaintiffs’ claim against the Defendants is founded on allegations of failure to exercise reasonable care and breach of duty of care. These allegations include abuse, bullying, battery, intimidation, discrimination, and trespass to the person of the 1st Plaintiff’s daughter, as well as the publication of malicious statements and defamation against the 1st Plaintiff. [4] According to the Plaintiffs, several incidents involving abuse and/or bullying, intimidation, battery, assault, trespass to the person, and resulting psychological harm are alleged to have occurred on 24 January 2018, 15 April 2018, 17 April 2018, 23 April 2018, and 26 April 2018. Despite complaints being lodged with the Defendants concerning these incidents, the Defendants allegedly failed in their duties, resulting in the 2nd Plaintiff suffering from psychological issues." In view of the foregoing, the Plaintiffs seek to recover damages and costs occasioned by the said incidents. [5] Upon hearing both parties, the SCJ held that the Defendants owed duty of care towards the 2nd Plaintiff and they had breached the duty. Being dissatisfied by the decision, the Defendants appeal to this Court. 3 S/N wWIZLP2mQUKv21JdQrQ5DQ **Note : Serial number will be used to verify the originality of this document via eFILING portal C. THE DEFENDANTS’ SUBMISSION [6] In response to the allegations of abuse and/or bullying, intimidation, battery, assault, trespass to the person, and psychological harm, the Defendants' version is as follows:- [a] On 24.1.2018, there was an incident involving the 2nd Plaintiff whereby during play time, the 2nd Plaintiff was hit by 3 students of her same age i.e. 4 years old. The said 3 students were punished accordingly by the class teacher and their respective parents were also informed of their behaviour. [b] On 15.4.2018, there was no classes for pre-school as it is a Sunday, there couldn’t have any incident to have taken place on the said date. [c] On 17.4.2018, there wasn’t any incident instead an incident took place on 18.4.2018 which happened during book and puzzle time, whereby two students who were cleaning up the puzzle pieces and the 2nd Plaintiff had run over to them and picked up the puzzle piece. The two students had reacted inappropriately by hitting her hand and they were immediately disciplined by the class teacher. [d] On 23.4.2018, the 2nd Plaintiff went towards a student who was playing with a toy car and wanted to play with him. However, the student hit her hand with the toy car whereby the student was immediately disciplined and his parents were informed. [e] There is no known incident on 26.4.2018, however on 25.4.2018, the 2nd Plaintiff was found to have a scratch on 4 S/N wWIZLP2mQUKv21JdQrQ5DQ **Note : Serial number will be used to verify the originality of this document via eFILING portal her nose by the class Teacher around 9.10am whereby the 2nd Plaintiff informed that it happened at home. [7] The Defendants submitted that there was an increased supervision and monitoring were provided for the 2nd Plaintiff through the involvement of the Class Teacher, Class Aide, the 2nd Defendant, and the School Counsellor. The 1st Plaintiff was, at all times, kept informed that investigations and observations had identified three incidents involving the 2nd Plaintiff, which were found not to be bullying incidents, and that her complaints had been duly attended to. The documentary and oral evidence demonstrated that they had taken appropriate and sufficient measures in addressing the complaints made by the 1st Plaintiff, notwithstanding that the incidents in question did not amount to bullying. Given the age of the students involved—who were three years old at the material time—an appropriate disciplinary plan was implemented to manage inappropriate behaviour, even if such behaviour did not constitute bullying. [8] The Defendants asserted that they had taken all reasonable measures to ensure the safety and personal protection of the 2nd Plaintiff. These measures included the implementation of an effective discipline plan, additional supervision for the 2nd Plaintiff, and the imposition of appropriate consequences on students who acted inappropriately towards her—though the conduct was not classified as bullying. The 1st Defendant had created and maintained a safe and secure environment for the 2nd Plaintiff and other students. In support of this, the 1st Defendant had produced a 'Child Safety & Personal Protection Handbook', established a Child Safety Team, and appointed a Child Advocate. 5 S/N wWIZLP2mQUKv21JdQrQ5DQ **Note : Serial number will be used to verify the originality of this document via eFILING portal [9] The learned SCJ in allowing the Plaintiff’s claim has failed to consider the material fact and evidence that, despite the 1st Plaintiff lodging a complaint with the Ministry of Education alleging incidents of bullying, abuse, battery, intimidation, discrimination, and trespass against the 2nd Plaintiff, no finding of fault was made, nor was any action taken against the 1st Defendant. Furthermore, there was no evidence— medical or expert—to substantiate the claims of assault, abuse, bullying, or trespass to the person of the 2nd Plaintiff, nor to support the assertion that she suffered any psychological impact as alleged. [10] The Defendants submitted that the learned SCJ ought to have given greater appreciation to the facts and documentary evidence relating to the alleged incidents, rather than arriving at a simplistic conclusion that the Defendants’ own evidence and investigation supported the Plaintiffs’ claim of bullying. The learned SCJ also failed to consider that there was no evidence—documentary or oral—apart from the 1st Plaintiff’s own testimony, to support her allegations of bullying, abuse, battery, intimidation, discrimination, or trespass against the 2nd Plaintiff. Furthermore, the learned Judge overlooked the fact that the 1st Plaintiff lacked personal knowledge of the alleged incidents, as she was not present when they purportedly occurred, and the 2nd Plaintiff did not give any evidence at trial to substantiate the claims. [11] As the Defendants had taken all appropriate and reasonable measures in addressing the complaints made by the 1st Plaintiff, there was no failure or breach of duty on the part of the Defendants, as erroneously found by the learned SCJ. Accordingly, the Defendants respectfully submit that this Court should set aside the finding of liability against them. 6 S/N wWIZLP2mQUKv21JdQrQ5DQ **Note : Serial number will be used to verify the originality of this document via eFILING portal D. THE PLAINTIFFS’ SUBMISSION [12] The learned Sessions Court Judge was correct in holding that the Defendants owed a duty of care to the 2nd Plaintiff and that they had breached that duty. The breach was specifically committed by the Defendants’ failure to implement adequate precautions and preventive measures to avoid, among other things, incidents of harassment and/or bullying against the 2nd Plaintiff. Most significantly, the Defendants failed to take prompt action to prevent the recurrence of such incidents, including their refusal to relocate the 2nd Plaintiff to another class. [13] The Defendants were aware that the 2nd Plaintiff had been subjected to incidents of bullying and/or intimidation, yet failed to take appropriate precautions, such as relocating her to another class. It is evident that there was insufficient supervision, which allowed the bullying and/or intimidation to recur. On the final reported occasion, the situation escalated to the extent that the 2nd Plaintiff suffered a nosebleed, further underscoring the Defendants’ failure to ensure her safety. [14] The 1st Plaintiff lodged a complaint via email dated 23.04.2018, requesting an appointment with Mrs. Steinkampf, the Head Counselor. However, Mrs. Steinkampf did not respond to the email and did not testify in court. This indicates a failure on her part to address a matter of serious concern. DW-1, Ms. Shawna Wood, the Head of School, admitted during trial that she was unaware of many email correspondences between the Plaintiffs and the 1st Defendant, particularly those directed to Mrs. Steinkampf. Furthermore, both DW-1 and DW-2, the Principal, acknowledged that the matter had not been 7 S/N wWIZLP2mQUKv21JdQrQ5DQ **Note : Serial number will be used to verify the originality of this document via eFILING portal investigated by the School’s Safety Team, despite recognising that bullying is a serious issue. Most significantly, the Defendants refused to relocate the 2nd Plaintiff to another class, despite a specific request made by the 1st Plaintiff. The breach of duty is apparent, particularly in light of the failure by Mrs. Steinkampf to act upon the 1st Plaintiff’s complaint. [15] From Mrs. Steinkampf—the Head Counselor and wife of the Principal, Mr. Karl Steinkampf—to DW-1 and DW-2, there was a clear failure to investigate a legitimate complaint raised by the Plaintiffs. The indifference and lackadaisical attitude displayed by the school administrators constitute a serious lapse, particularly given the nature of the allegations. Considering the high school fees charged, there is a corresponding expectation of a high standard of care. In light of the submissions and evidence presented, the learned SCJ was correct in both the appreciation of the facts and the application of the law in finding that the Defendants had been negligent and had breached their duty of care towards the Plaintiffs. E. ANALISYS AND FINDING [16] I am guided by the established principle of law concerning appellate intervention as decided by the Federal Court in the case of DREAM PROPERTY SDN BHD V ATLAS HOUSING SDN BHD [2015] 2 CLJ 453 which held as follows: - “[60] It is now established that the principle on which an appellate court could interfere with findings of fact by the trial court is "the plainly wrong test" principle. More recently, this 8 S/N wWIZLP2mQUKv21JdQrQ5DQ **Note : Serial number will be used to verify the originality of this document via eFILING portal principle of appellate intervention was affirmed by the Federal Court in UEM Group Berhad v. Genisys Integrated Engineers Pte Ltd [2010] 9 CLJ 785 where it was held at p. 800: It is well settled law that an appellate court will not generally speaking, intervene with the decision of a trial court unless the trial court is shown to be plainly wrong in arriving at its decision. A plainly wrong decision happens when the trial court is guilty of no or insufficient judicial appreciation of evidence. [17] Before me, this case is to consider a claim of negligence against the Defendants where the 2nd Plaintiff was injured during school hours. In matters regarding tort of negligence as such, the school owe a duty of care to their students, which encompasses the obligation to provide a safe and secure learning environment. This duty includes the responsibility to protect students from harm caused by other students, including bullying. A school breaches this duty when it fails to take reasonable steps to prevent or address bullying after becoming aware of it, or in circumstances where it ought reasonably to have been aware through the exercise of due diligence. In this case, the Plaintiff must demonstrate that the Defendants’ failure to act either caused or materially contributed to the harm suffered. There must be actual damage sustained, whether in the form of physical injury, psychological trauma, or disruption to the student’s educational experience. [18] Thus if a school ignores bullying complaints, fails to supervise adequately, or shows indifference to reported incidents—especially with repeated occurrences or foreseeable risk—then liability may be imposed under the tort of negligence. The school must be aware (or ought 9 S/N wWIZLP2mQUKv21JdQrQ5DQ **Note : Serial number will be used to verify the originality of this document via eFILING portal reasonably to be aware) of bullying and does not take appropriate steps to intervene, it can be held liable in negligence. The failure must be shown to be a breach of its duty of care, and actual harm must be established. [19] The Defendants—particularly the 2nd Defendant, who served as the Principal and Administrator of the 1st Defendant—undoubtedly owed a duty of care to the 2nd Plaintiff, who was enrolled as a student at the school. This duty is heightened by the fact that the 1st Defendant is a well-established and prestigious institution charging high school fees, which in turn raises the legitimate expectation of a safe, structured, and conducive learning environment. The Defendants were under a duty to ensure a clean, secure, and supportive atmosphere for students to learn and reside within the school premises. Having owed such a duty, the Defendants clearly breached it by failing to take adequate precautions and preventive measures to avoid incidents of harassment and/or bullying involving the 2nd Plaintiff. This breach is evident from the recurrence of bullying incidents, which indicate a systemic failure to implement effective safeguards. The measures purportedly taken by the school were repetitive and largely ineffective, consisting primarily of informing the parents of the offending students, without any meaningful or escalated intervention. [20] Furthermore, what is particularly concerning is the school’s refusal to accede to the 1st Plaintiff’s request to transfer the 2nd Plaintiff to a different class in order to separate her from the alleged bully. In my view, such a measure would have constituted a reasonable and practical step to mitigate the risk of further bullying by the same individual. The failure to consider or implement this request reflects a lack of responsiveness 10 S/N wWIZLP2mQUKv21JdQrQ5DQ **Note : Serial number will be used to verify the originality of this document via eFILING portal to a legitimate concern and underscores the inadequacy of the school’s approach in addressing the ongoing situation. [21] In Mohamed Raihan Bin Ibrahim & Anor V Government Of Malaysia & Ors [1982] CLJ 150; [1981] 2 MLJ 27, the Federal Court held the following: - [2] It is settled law that a school teacher was under a duty to exercise supervision over his pupils when they were in the school premises, either in the class room or the playground. The degree of supervision depended on the circumstances of each case, such as the age of the pupils and what they were doing at the material time. If the teacher knew that the pupils were engaged in doing acts which were likely to cause injuries to one another, the teacher was under a duty to take steps to ensure the safety of the acts. [3] The mere warning to the pupils to be careful did not amount to proper supervision, especially when it was established that the pupils were of young age and in jovial mood. [5] The respondents were therefore negligent for failing to take reasonable and proper steps to prevent the appellant under their case from sustaining the injury and that their teacher did not check the condition of the garden tools nor provided a safe system of holding the gardening class. 11 S/N wWIZLP2mQUKv21JdQrQ5DQ **Note : Serial number will be used to verify the originality of this document via eFILING portal [22] In the present appeal, I find no error in the learned Sessions Court Judge’s appreciation of the facts or application of the law in arriving at his findings that would warrant appellate intervention by this Court. [23] Based on the reasons stated above, I therefore dismiss the Defendants’ appeal, with each party to bear their own costs. Dated SGD (ROZANA BINTI ALI YUSOFF) Hakim Mahkamah Tinggi Pulau Pinang Dated on 20th June 2025 Counsel Barvina Punnusamy (Messrs Jayadeep Hari & Jamil) for the Appellant. Martin Khoo & Indhumaliny (Messrs Ismail Khoo & Assoc.) for the Respondent. 12 S/N wWIZLP2mQUKv21JdQrQ5DQ **Note : Serial number will be used to verify the originality of this document via eFILING portal