Sunday, 18 September 2011

negligence or ignorance?

"KLANG: A standard five pupil of Sekolah Kebangsaan Kampung Jawa 2, here died after being hit by a falling goal post when playing football at the school field yesterday evening. The victim, Muhammad Fakhrul Amin Abdul Rahman, 11, suffered severe bleeding and a cracked skull in the incident at 6pm." - Bernama.

This is not a new story about our young talents. Previously, it happened to Julli Sari Osman from Sek. Menengah Kebangsaan Muadzam Shah and R. Vijian from Sek. Menengah Triang. The legal issue here is whether such incidents is merely accident or negligence?

For the intro, let's briefly talk about the circulation of safety guidelines by the Education Ministry - KP (BS) 8591/Jld.VIII(84), issued since April 6, 1995 to ensure proper safety measure. This circular tell of measures that should be taken in and outside the classroom..and the responsibility for the storage and use of equipment. This circular goes unread and unheeded. The one who then will receive blame is teacher..and school ...and sports education system. NUTP will come up with comment and condemn. Sports minister will defence his dept as not liable but denote and declare more guidelines. Safe school manual and more directives will be issued that cover various safety aspect..water safety, rock safety..hill safety..far outside the boundaries of school compounds. Nothing happen later till the story of pity repeats once again...another student dies..

The right of safety and sports protection is not directly under national law. We do have Children Act, Education Act and Human Rights Act that talk about who is children and their protection...but no special act talk about sports safety and co curriculum activity. The government apply the non-interventionist approach when we talk about sports and pastimes activities. The damages of injury in sport-school related cases fall under the stream of negligence (Tort). However, courts have been reluctant to hold school and education system liable in negligence. The court felt 'it is no way that a teacher can give a personal attention to every student all of the time'. What more if there is 'no duty' to supervise and you played football alone at 6 pm after school time. Thus, most of the Malaysian case is reported as 'accident'. 

If there is no duty, the question of breach is moot. Actionable duties must compliment. Insurance covering and inspecting the equipment is no more optional. Check whether any potential precaution measure reasonbly taken care of, or any proximate cause available for tortious action. It is timely we change the direction and perspective. The current legal action concentrate on product liability. Make it double, school failed to supervise and failed to supply effective equipments. School ordinarily have a duty to provide proper equipment, they owe a duty to their students (even out of school activities) to use reasonable care to inspect and maintain its equipment and to protect its student from any unreasonable risk of harm. School have a duty to maintain reasonably safe facilities. The failure to maintain is the proximate cause of negligence. If parents believe "Allah lebih menyayanginya - God loves him more", actually, they are not resting him in peace.

In the near future, I guest the facilities in school also administered under OSHA (Occupational Safety and Health Act 1994) that require teachers to maintain the workplace and the sports equipement used to ensure proper safety as enforced by the law. Who knows? Malaysia still 'boleh'.

Sports Law in Malaysia