Silvadurai Kunnary & Anor v Headmaster, SRJK Cina, Chung Hwa & Ors [1996] 2 BLJ Suriyadi Halim

Omar J 279

SILVADURAI KUNNARY & ANOR v HEADMASTER, SRJK CINA, CHUNG HWA & ORS HIGH COURT MALAYA, MELAKA DATUK SURIYADI HALIM OMAR J [CIVIL APPEAL NO: 11-11 OF 1995] 22 JULY 1996 TORT: Negligence - Boy trips and falls onto rocks whilst in school compound - Claim that boy vomitted in school disputed by defendants Doctor testifies that boy might have been saved if swiftly treated - Whether defendants negligent in not sending boy to hospital immediately - Whether boy had actually vomitted - Whether boy could have been saved if sent to hospital - Whether boy should have been sent to the General Hospital by the school and not the mother or the local hospital authorities Whether teacher had acted reasonably upon being confronted with boy's injuries. TORT: Negligence - Whether sufficient warning given against dangers Special relationship of teacher-pupil - Duty of teacher to supervise her students - Extent of the duty - Whether law imposes a duty of insurance against harm. TORT: Negligence - Whether school should not have placed rocks in the playground - Whether event is reasonably forseeable - Whether injury sustained would have been contemplated by a reasonable man. CIVIL PROCEDURE: Appeal - Findings of facts - Review of these findings - Whether appellate Court should interfere with trial Judge's findings of facts. This is an appeal against the decision of the Magistrate Court dismissing the plaintiffs' suit with costs. The plaintiffs are the parents of the deceased schoolboy and they are alleging that the defendants' negligence resulted in the loss of their child. The deceased was playing on a see-saw with a friend. Upon alighting from the same, he tripped and fell head first on some rocks which were placed there for decorative purposes. The facts leading to the accident were accepted by both parties. Subsequent to the unfortunate incident, the plaintiffs claimed that the deceased had vomitted in the classroom. The friend of the deceased, another student and the mother of the deceased had stated to this effect. The teacher, however, denied that the boy had vomitted. She claimed that the deceased only had

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bruises on his knee and elbow and that she had applied iodine on the bruises. She further testified that the deceased seemed to be behaving normally. The headmaster stated that he was informed of what had happened by the teacher and that he found it unnecessary to consult a doctor as a result of the teacher informing him of the 'minor' nature of the injuries. He also denied any knowledge of the vomitting episode. In the afternoon, the adopted mother picked the boy up from school and immediately proceeded to take him to a clinic. The first doctor that attended to him merely prescribed glucose and sent him home. As the boy was still weak, he was taken to the estate clinic where the dresser gave the same medical advice. Later that day, he was taken to the local hospital where he had collapsed. The next day the boy was transferred to the General Hospital where he eventually passed away 2 days later. The plaintiffs placed heavy reliance on the testimony of a doctor who stated that had the boy been admitted to the General Hospital at the time he collapsed, he might have survived. Alternatively, he stated that if the boy had been treated appropriately at the time that he was alleged to have vomitted, he also might have survived depending on the facilities available. The plaintiffs also claimed that it was not appropriate for the school to place rocks close to the see-saw. As against this, the headmaster had stated that during school assemblies, the children were informed of the dangers of the seesaw. Supervisors and teachers were also around to advise children of any dangers. The plaintiffs claimed that the defendants were negligent in one of two ways ie. firstly, the defendants' reaction to the accident was not swift and appropriate enough to avert the impending danger and secondly, that the defendants did not provide enough security against the danger posed by the rocks. Therefore, the issue that the Court had to determine was whether the plaintiffs had established that, as a result of the defendants' negligence, they had lost their son. Held: [1] The question of whether the defendants were negligent in not taking appropriate action after the occurrence of the accident depends on a few issues ie. whether the boy had vomitted, whether the doctor was correct in stating that the boy could have been saved, whether it was the defendants who should have sent the boy to the General Hospital and lastly, whether the teacher's reaction subsequent to the accident was appropriate. [2] With regards the issue of whether the boy had actually vomitted or not, the Magistrate, having assessed all the evidence before her, found as a fact that the boy had not vomitted. It is a well established principle that

Silvadurai Kunnary & Anor v Headmaster, SRJK Cina, Chung Hwa & Ors [1996] 2 BLJ Suriyadi Halim Omar J 281

where facts have to be reviewed, the findings of the lower Court should not be disturbed unless it appears that such findings are clearly wrong. It should also be remembered that the Magistrate had the full benefit of assessing the demeanour of each witness before coming to her conclusion. This factor is highly significant especially with regards the testimony of the two children who had to recall an incident that had occurred 5 years earlier. As a result of these factors, the Court agrees with the Magistrate's finding that the deceased had not vomitted in class. [3] As to whether the doctor was right in stating that had appropriate action been taken the boy might have been saved, there is no evidence to confirm that the doctor was a surgeon with the necessary expertise. Moreover, the complex nature of the treatment coupled with the need for the necessary equipment suggests that it would be improbable that a doctor would have immediately operated on the boy without having the relevant data and equipment. This was a major medical exercise requiring meticulous preparation and suitable expertise and in the absence of conclusive medical evidence confirming that the boy's life could have been saved, the Court is not willing to accept the bare testimony of the doctor as true. Further, the Court is not convinced that the boy would have received treatment different from that given by the doctor and dresser even if he had been sent to the General Hospital swiftly. [4] The doctor had also stated in his testimony that if the boy had been sent to the General Hospital immediately after collapsing, he might have been saved. The boy had collapsed not in school but at the local hospital and thus the reponsibility of taking the boy to the General Hospital should lie with either the mother or the hospital authorities and not with the defendants. Moreover, if the mother had witnessed the vomitting as she stated, she should have taken the boy to the General Hospital immediately. The fact that the boy's condition had worsened whilst in the custody of his mother also weighs against the plaintiffs. [5] The teacher had promptly applied iodine to the bruises on the boy and subsequently, she had reported the incident to the headmaster. She also found the boy to be behaving normally after the accident. Having regard to the fact that a teacher has no medical background, the Court opines that the said teacher had acted reasonably and not negligently. If the doctor and the dresser, who are medically qualified persons, could not detect the seriousness of the injury, the Court surely cannot expect the teacher to do any better. [6] Turning to the issue of whether the defendants could be said to be negligent in placing the rocks there, it has to be remembered that the present case is one where a child unfortunately fell on some rocks while walking towards the classroom and not one where a child was injured as

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a result of a faulty see-saw. Further, the Court should also remember that there was another child walking with the deceased at the material time and that he had not tripped. Some level of risk in life has to be taken. The law on this is that, not only must the event be such that it could have been reasonably forseeable, but the injury that is sustained must also be such that a reasonable man would have contemplated. In the present case, although it is forseeable that children would possibly injure themselves whilst playing, it certainly cannot be said that a reasonable man would have contemplated that death would have resulted. [7] As regards the issue of whether there was sufficient warning given to the pupils about the dangers of the playground, it was established that not only do the defendants inform the children about the dangers of the seesaw during school assemblies, but there also are supervisors and teachers around to advise children to be careful. Thus, the Court is satisfied that the school had taken sufficient steps to warn the children accordingly. [8] As for the amount of supervision required of the teachers, this would depend on the age of the students and what type of activity the students were engaged in. It would be unreasonable if teachers were held to be responsible to ensure that students are not injured within the compound of the school in every circumstance. A school teacher is under a duty to exercise supervision over his pupils when they are within the school premises, either in the classroom or the playground. The degree of supervision depends on the circumstances of each case. If the teacher is aware that the pupils are engaged in acts likely to result in injuries, he is under a duty to take steps to ensure the safety of the acts. The law does not impose a duty of insurance against harm but only a duty to take reasonable care for the safety of the pupil. Taking into consideration all the circumstances of the case, the Court is satisfied that there was sufficient supervision over the pupils playing in the playground. Per curiam: An appellate Court would more readily interfere with the findings of the lower Court if these findings of fact depended largely upon inferences drawn from other facts.

[Appeal dismissed with costs]

Cases referred to: Mohamed Raihan bin Ibrahim & Anor. v. Government Of Malaysia & Anor. [1981] 2 MLJ 27 (refd) Crofter Hand Woven Harris Tweed Co., Ltd., And Others v. Veitch And Another [1942] 1 AER p 142 (foll) China Airlines Limited v. Maltran Air Corporation Sdn. Bhd. (formerly known as Maltran Air Services Corporation Sdn. Bhd.) and Anor Appeal [1996] 2 AMR 2233 (foll)

Silvadurai Kunnary & Anor v Headmaster, SRJK Cina, Chung Hwa & Ors [1996] 2 BLJ Suriyadi Halim Omar J 283 Bolton And Others v. Stone [1951] Vol. 1 p 1078 (foll) Chen Soon Lee v. Chong Voon Pin & Ors. [1966] 2 MLJ 264 (refd) Brown v. National Coal Board [1962] 1 AER 81(refd) Zazlin Zahira Hj Kamarulzaman (an infant) suing by his father and next friend, Hj Kamarulzaman b. Mohd Ali lwn. Louis Marie Neube RT Ambrose a/l Ambrose & 2 Yg Ln [1994] 3 AMR 47 2518 (refd) Government Of Malaysia & Ors, v. Jumat Bin Mahmud & Anor. [1977] 2 MLJ 103 (refd) Nasri v. Mesah [1971] 1 MLJ 32/34 (refd) Yong Book Fong v. Nallakaruppan Chettiar & Ors. [1972] 1MLJ 13/17 (refd) For the respondent - Meor Hashimi, State Legal Advise Department For the plaintiff - Ramasamy, M/s E. Ramasamy & Co a

JUDGMENT Suriyadi Halim Omar J: The plaintiffs in this case were parents of Silvaprakash a/l Silvadurai, deceased, who was a standard 2 student at Sekolah Rendah Jenis Kebangsaan Cina Chung Hwa. On 18 September 1989 at about 9.45a.m. during the school recess it was evidenced that the deceased was playing with a see-saw at the rear of his classroom with another friend (PW4). By some freak accident the child after alighting from the see-saw accidently tumbled, after tripping, and fell head down on some rocks. Those rocks were deliberately placed there for landscaping and aesthetic value so as to decorate and beautify the school compound. As a consequence of that misfortune the deceased succumbed three days later i.e. on 21 December 1989. The plaintiffs subsequently filed a suit against the defendants viz the headmaster of the relevant school, the Ministry of Education and lastly the Government of Malaysia alleging negligence on their part which resulted in the loss of their child. On 11 September 1995 after a protracted hearing the learned magistrate dismissed the suit of the plaintiffs with costs. Being dissatisfied with the decision, the disillusioned plaintiffs promptly filed the notice of appeal and on 15 July 1996 the said appeal was heard by me. Zeroing in on the law without much ado as regards cases of this nature Salleh Abas FJ in Mohamed Raihan bin Ibrahim & Anor. v. Government Of Malaysia & Anor. [1981] 2 MLJ 27 had this to say:
It is settled law that a school teacher is under a duty to exercise supervision over his pupils when they are in the school premises, either in the classroom or the playground. The degree of supervision depends on the circumstances of each case, such as the age of the pupils and what they are doing at the material time. If the teacher knows that the pupils are engaged in doing acts which are likely to cause injuries to one another, the teacher is under a duty to take steps to ensure the safety of the acts. d

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It was common ground that on the material date the unfortunate child, taking advantage of the school recess, together with his friend Saravanan a/l Sanasy (PW4) were happily playing with the see-saw behind the classroom oblivious of the impending tragedy. There was no serious attempt on the part of the defendants to deny the subsequent episode whereby the deceased did fall on the rocks. PW4 at page 39 paragraph F said:
Kawasan itu dipenuhi dengan simen sekitar jongkang-jongkit dan terdapat rumput di sekitar longkang. Saya nampak Siva jatuh. Terdapat batu-batu yang dikumpulkan untuk tujuan pembinaan berhampiran pokok bunga dan Siva semasa berjalan terlanggar batu-batu yang dikumpulkan. Batu-batu tersebut batu putih. Saya ada nampak Siva jatuh. Kepalanya terkena pada batu besar dan badannya terkena pada batu kecil.

Letchumy a/p Selliah (PW5) another classmate of the deceased at page 52 of the Records of Appeal admitted that Saravanan did inform her of the unfortunate incident which befell the deceased. She was informed as to where and how the deceased fell. The relevancy of this piece of evidence was not to prove the truth of that statement but merely to confirm that she was informed of the unfortunate incident within minutes of its occurrence. The challenge to the facts adduced by the plaintiffs came thenceforth namely as to what actually happened in the classroom. PW4 graphically said the deceased vomitted in the classroom but was denied by the defendants. For easy reference I reproduce what was said by PW4 at page 39 paragraph C:
Selepas itu Siva muntah darah. Masa itu ada cikgu dalam bilik darjah. Saya tidak tahu nama cikgu tapi cikgu perempuan. Ada seorang guru wanita suruh saya basuh dan bersihkan muntah. Saya ada bersihkan muntah itu. Saya nampak Siva terbaring atas meja.

Evidence to this effect was also confirmed by PW5 as reflected at page 51 paragraph C. On this contentious point the class teacher one Chan Chai Teng (DW2) at page 82 merely said that when the deceased came to see her only the knee and elbow were bruised whilst the rest of his body showed no sign of injury. Having located the bruises she applied some iodine on them. At page 86 she denied the dramatic events of the deceased vomitting. She also did not detect any injuries on the deceaseds face. This lady witness further evinced that in class Sivaprakash was his normal self carrying out diligently her instructions. DW1 who was the headmaster of that relevant school did confirm at page 69 that DW2 did bring the deceaseds predicament to his attention. He was informed that the child had suffered some minor injuries and iodine had been dabbed on the bruises. As regards the vomitting episode he was oblivious of it as no one kept him informed. The headmaster also confirmed that he found it unnecessary to consult a doctor as the relevant teacher had informed him that the injury was merely on the leg (page 73 of the Records of Appeal).

Silvadurai Kunnary & Anor v Headmaster, SRJK Cina, Chung Hwa & Ors [1996] 2 BLJ Suriyadi Halim Omar J 285

At 1.00 p.m. the adopted mother (PW2) of the unfortunate child came to fetch him and with that cut off point, the responsibility over the child shifted to the mother. Having taken the child she immediately brought him to a clinic in the estate but unfortunately was closed. She then turned for home but later left for a clinic in Jasin. A doctor managed to see the deceased and prescribed him glucose and thereafter prompting them to return home. On the way home, as the child was observed to be weak, he was again taken to the clinic located in the estate by PW2. There a dresser similarly prescribed the consumption of some glucose. She then returned home but later by taxi transported the child to the hospital in Tangkak for further observation. The next day the child was brought to the General Hospital of Malacca but on 21 December 1989 succumbed to his ailments. From the evidence adduced as at page 36 Dr. Mohd Nazir bin Abdul Rahman (PW3) admitted that the deceased had collapsed at about 6.00 p.m. the very same day the unfortunate incident happened. The learned Counsel for the plaintiffs admitted this fact. The plaintiffs made much out of the remarks of PW3 at page 36 which read:
Collapse pukul 6 petang. Semasa 8.30 malam di Hospital Tangkak dalam keadaan tenat. Sekiranya dari masa dia collapse dia terus ke Hospital Besar Melaka mungkin boleh diselamatkan. Sekiranya pada waktu dia muntah, discan diberi rawatan mungkin dapat diselamatkan. Ini terpulang juga kalau cukup facilities mungkin boleh diselamatkan.

On this unsubstantiated medical opinion of PW3 (there was nothing in the evidence to confirm that he was a surgeon with the necessary expertise) that the child could have been saved had he been brought to the hospital immediately after he had collapsed these questions whizzed around my head: 1. as the child had collapsed in Tangkaks hospital and not in school should the responsibility of taking the child to the General Hospital not lie with the adopted mother or the responsible hospital?; 2. even before any surgery could be carried out surely a lot of preliminary studies to diagnose the injury would have had to be undertaken, like scanning, x-ray, etc.?; 3. would any doctor in his right mind operate on that child unless all the alternatives had been discounted?; 4. even if a head surgery was necessary was there proof to confirm the fact that the hospital had the necessary equipment?; 5. with all these delaying factors could the child be eventually saved?; and lastly

6. even if the child had been promptly operated on could he have been saved? (I found no evidence adduced that could confirm with certainty).

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Some of these points could not be disputed by the learned Counsel and conceded that it was improbable that a doctor would immediately operate on that child without being in possession of the relevant data and equipment. No one could deny that this was a major medical exercise which entailed tremendous preparation and suitable expertise. On a reflection even if I had agreed with the earlier submission of the learned Counsel for the plaintiffs that had the child been sent to the General Hospital in Melaka at the earliest moment I was not convinced that the treatment by the hospital would be any different to that given by the doctor and dresser in the respective clinics in Janin and Asahan. Similarly there was no medical evidence to confirm that the unfortunate child could have been saved had he been sent direct to hospital from school. Apart from the medical doubts which were besetting me I found these additional factors which negatived the plaintiffs case:

l. the undisputed time lapse of five hours after leaving the school promises and before he collapsed. He was collected from the premises of the school by his adopted mother at 1.00p.m. whilst he collapsed at about 6.00p.m. During these intervening hours what really happened was shrouded with mystery; 2. why did the mother not send the child to the General Hospital Melaka immediately when by her own admission she admitted witnessing the vomitting session before her. During this crucial period she was in charge of the welfare of the child; 3. in stark distinction to the mothers evidence the class teacher denied seeing the deceased vomitting at any period of time. The plaintiffs attempted their utmost to establish that incident but was rejected by the learned magistrate after assessing the evidence in toto. On this point may I be permitted to refer to the case of Crofter Hand Woven Harris Tweed Co., Ltd., And Others v. Veitch And Another [1942] 1 AER page 142 esp. 167 where Lord Porter said:
It is unnecessary to emphasise the principle, so often recognised by your Lordships, that, in all cases where facts have to be reviewed, it is undesirable that the findings of the Courts below should be disturbed by a Court of appeal unless it appears that those findings are clearly wrong, and more especially that it is undesirable to do so where the conclusions reached must to a large extent depend upon the demeanour of the witnesses and the impression formed by a tribunal which has seen them and can judge of their honesty and accuracy.

This relevant principle of law was followed by the Federal Court in China Airlines Limited v. Maltran Air Corporation Sdn. Bhd. (formerly known as Maltran Air Services Corporation Sdn. Bhd.) and Anor Appeal [1996] 2 AMR 2233. In this case the Federal Court interfered with the findings of

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fact of the Court below based on the proposition that an appellate Court would more readily interfere with the Judges finding of fact which depended largely upon inferences drawn from other facts. Having perused the findings of the learned magistrate who had made specific findings over the evidence of all the witnesses and being mindful of the remarks of Mohamed Dzaiddin FCJ I was hard pressed to dispute her findings. The learned magistrate after many days of hearing had the full benefit of listening and assessing the demeanour of the witnesses and finally eventuate on them. She was in the right seat, place and time to assess any twitch, hesitancy, unusual behaviour or even the changes in the level of their voices when testifying. These factors reached a higher level of prominence and significance especially with regard to the two children who despite being minors were expected to recall an incident that ocurred five years earlier. On 16 September 1994 when PW4 and PW5 who were peers gave evidence they were 12 year olds whilst at the date of the incident they were mere six year old children. How they managed to remember the incident that happened many years ago that would have caused expected agonising moments even for an adult due to memory lapses was beyond the Courts understanding or comprehension. With all these factors confronting me I was not convinced that the deceased vomitted in class. Regardless of this stance even if I were to accept PW4 and PW5s evidence as against that of DW2 the matter did not end there. I still had to proceed further and consider the other eight questions or doubts which I mentioned earlier. In other words there were other obstacles to consider. Retracting slightly the Court had to consider the reaction of the teacher the moment she was confronted with the bruises when exposed to her. Since I had decided that there was no conclusive evidence to confirm that the teacher witnessed the vomitting I then proceeded on that premise. Here was a teacher DW2 faced with a child covered with some bruises but was behaving normally in the accepted sense. She reacted promptly by applying some iodine on the affected areas and subsequently brought the matter to the headmasters attention. I then asked myself the relevant question, had I been a mere teacher who had no medical background, would I not have reacted the same way and in similar fashion as that of DW2 in the circumstances of the case? My conclusion was resoundingly positive. Not only had DW2 given immediate medical attention to the child but had also adhered to the required guidelines when she reported the matter to the headmaster. In other words DW2 had acted reasonably. I was further fortified by the belief that if the doctor in Jasin and the dresser in Asahan could not manage to detect the internal haemorrhage or the seriousness of the injury how was the Court to judiciously expect the teacher to do any better? There was a mild attempt by the learned Counsel to castigate the school for placing the rocks close to the see-saw which had culminated in death. Much had I sympathised with this argument I was not oblivious to the fact that this was not a question of a child who fell from a defective see-saw or while

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playing the see-saw was flung off the seat and landing on the jutting rocks. This was a case of one of the two children having alighted from the see-saw while walking towards the classroom, tripped, and unfortunately fell headlong on some rocks. If the school were to be reprimanded for laying those rocks near the playground which had caused the fatal injury then on the same argument if the child had fallen on some other rocks much further away from the playground the school would still not escape the rebuke. Some level of risk in life had to be taken as otherwise there would be no end to matters of this nature. Let us not forget that the other child did not trip even though they were together. To submit to the submission of the plaintiffs might lead to unexpected suits where Courts would be held liable whenever Counsels suffer injuries after accidently knocking their heads on some beautifully carved bar table despite the good intentions of the Court to ensure the comfort of the legal fraternity. The remarks of Lord Porter in Bolton And Others v. Stone [1951] Vol. 1 page 1078 at 1081 para A are highly relevant where he said:
It is not enough that the event should be such as can reasonably be foreseen. The further result that injury is likely to follow must also be such as a reasonable man would contemplate before he can be convicted of actionable negligence. Nor is the remote possibility of injury occuring enough. There must be sufficient probability to lead a reasonable man to anticipate it. The existence of some risk is an ordinary incident of life, even when all due care has been, as it must be, taken.

As regards whether sufficient warning had been posted to the users of the playground, the headmaster (DWI) at page 77 clearly indicated that during school assemblies children were informed of the dangers of the see-saw on the school premises. Supervisors and teachers were also around to advise children of the lurking dangers. On this point of supervision and warning permit me to reproduce the dicta of Lee Hun Ho J (as he then was) in Chen Soon Lee v. Chong Voon Pin & Ors. [1966] 2 MLJ 264 at page 267 which reads:
The teachers had done all they possibly could to ensure the safety of the students. There is no evidence to show that any of the teachers had been at fault or neglected their duty thus causing deceased to get drowned. The amount of supervision required depends on the age of the students and what they were doing at the time. The teachers had done more than was necessary. They kept the students under continuous supervision. There was nothing the teachers, or for that matter any other person, could do to fight against an unfortunate occurrence of circumstances.

I was satisfied that sufficient action had been undertaken by the school to warn the children of the dangers of playing with the see-saw. To exact unusually stringent measures would be stretching the duty imposed on the school as this is not a war zone.

Silvadurai Kunnary & Anor v Headmaster, SRJK Cina, Chung Hwa & Ors [1996] 2 BLJ Suriyadi Halim Omar J 289

Further on this point might I hasten to clarify that the see-saw was not the cause of the fatal injury but a fall on some hard object which was totally unconnected with the latter. It would thus be unreasonable, to say the least, if teachers were to be responsible to ensure that students were not injured after being in contact with some hard objects within the compound of the school in every circumstance. No doubt it was foreseeable that children would fall and possibly be injured while running around in exhuberence but the law requires more than that. As Lord Denning in Brown v. National Coal Board [1962] 1 AER 81 esp. page 89 paragraph H said ... for the common law does not require a man to provide security against a possible cause of injury, even though it is forseeable (see also supra Bolton And Others v. Stone). I further seek solace from the case of Zazlin Zahira Hj Kamarulzaman (an infant) suing by his father and next friend, Hj Kamarulzaman b. Mohd Ali lwn. Louis Marie Neube RT Ambrose a/l Ambrose & 2 Yg Ln [1994] 3 AMR 47 2518 at page 2519 under held 1 which reads:
1.(a) Seorang guru bertanggung jawab menjaga keselamatan murid-murid di bawah jagaannya. Kewajipan berhati-hati ini mesti mengambil kira peluang dan kebolehan guru itu untuk melindungi murid-murid dari bahaya yang diketahui, dan tahap kewajipan ini adalah sama dengan kewajipan seorang bapa yang mempunyai anak ramai. Ia bukan kewajipan menjamin tidak akan berlaku kemalangan, tetapi sekadar kewajipan berhati-hati dengan munasabah untuk menjaga keselamatan murid-murid. Undang-undang tidak meletakkan tanggung jawab yang keras (strict liability) ke atas guru.

Raja Azlan Shah FJ (as he then was) in Government Of Malaysia & Ors, v. Jumat Bin Mahmud & Anor. [1977] 2 MLJ 103 at page 104 para D had this to say:
It is accepted that by reason of the special relationship of teacher and pupil, a school teacher owes a duty to the pupil to take reasonable care, for the safety of the pupil. The duty of care on the part of the teacher to the plaintiff must commensurate with his/her opportunity and ability to protect the pupil from dangers that are known or that should be apprehended and, the duty of care required is that which a careful father with a very large family would take of his own children (see Ricketts v. Erith Borough Council). It is not a duty of insurance against harm but only a duty to take reasonable care for the safety of the pupil. The duty is aptly described by the learned Chief Justice of Victoria in the judgment of the Full Court in Richards v. State of Victoria when he said: The duty of care owed by (the teacher) required only that he should take such measures as in all the circumstances were reasonable to prevent physical injury to (the pupil). This duty not being one to insure against injury, but to take reasonable care to prevent it, required no more than the taking of reasonable steps to protect the plaintiff against risks of injury which ex hypothesi (the teacher) should reasonably have foreseen.

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Having perused the notes of evidence I was not convinced that the plaintiffs had proven every fact traversed in their cause of action in order to obtain judgment in their favour (see Nasri v. Mesah [1971] 1 MLJ 32/34; Yong Book Fong v. Nallakaruppan Chettiar & Ors. [1972] 1 MLJ 13/17). On the other hand I was satisfied that there was sufficient supervision over the school children with regard to the playground. I was also satisfied that the teacher had acted reasonably after being confronted with the condition of the child until the handing over to the adopted mother. If the evidence of the doctor, subpoenaed by the plaintiffs, were anything to go by that the child could have been saved after he had collapsed had he been taken to hospital immediately surely that was the death knell of the plaintiffs case. The fact that the childs condition deteriorated whilst under the supervision of the adopted mother/hospital surely exonerated the school. The uncertainty of the availability of the equipment and the probable delay before any surgery due to preliminary observations would be of no help either to the plaintiffs case. On the above grounds I dismissed the appeal with cost. Reported by S. Puvan