Court dismisses special needs child's claim against govt for bullying, not providing proper education

Court dismisses special needs child's claim against govt for bullying, not providing proper education
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KUALA LUMPUR (Feb 3): The High Court on Friday (Feb 3) dismissed a suit brought by a single mother and her then 17-year-old special needs son against the government, the Education Ministry, a special school in Section 17, Shah Alam, and the school principal for purported breaches of statutory duty of allegedly not providing proper education for the child, and for bullying.

The boy, now 25, is said to be suffering from Attention Deficit Hyperactive Disorder (ADHD) and a leg impairment.

The mother and son alleged that the school and ministry had failed to provide proper education to him while there and so the defendants had breached its statutory duty to meet expectations for learning.

In dismissing the claim, judge Datuk Nik Hasmat Nik Mohamad said the mother and the child, on a balance of probabilities, failed to prove that they had not been provided quality education to meet the needs of a special needs child.

Instead, Nik Hasmat pointed out that the child had failed to meet registration procedure and guidelines as he had registered late at the school, about seven days after the registration period.

She also said that despite complaints about the school’s inadequacy and purported bullying suffered by her son, the mother had chosen to have her son remain there until he completed his education in 2016.

“There is no oral evidence on purported breaches that the government or ministry had violated through the common law to provide the child reasonable education.

"Furthermore, the so-called specialist or expert called by the plaintiff cannot be said as such as she had not conducted examination on the child, and there was no evidence to suggest [the kinds of] suitable [education or training] to meet the plaintiff's [child’s] requirement,” she added.

The court, Nik Hasmat said, also found that the first two teachers who testified for the defence had taught the child on the mother’s requests.

Hence, she questioned the purported breach of statutory duty claim made by the mother and child, and ruled that it does not hold water.

Nik Hasmat added that the allegation made by the mother is considered a bare averment and afterthought, and that it was unreasonable for her to use her experience of staying in the US for several years to compare the education her child received, with the education standards there.

Failure to prove that the school is unsafe

The court also dismissed the mother and son's claim of four purported incidents of bullying, and their allegation that the school had failed to provide a safe and secure environment for its students.

This follows the court's finding that the mother and child had failed to prove the purported failure of the school to prevent incidences of bullying.

In the first instance of a purported punch between a hearing impaired student and the affected child, there were no witnesses or report, the judge said. There were also no witnesses to verify the second incident, in which the victim claimed he had been spat on and assaulted in a mosque.

The same is true for the third incident of purported bullying, during which the victim claimed his chair was pulled out from under him while he was praying — he needed to use the chair due to his leg impairment — which caused him to fall and suffer head injuries. As for the fourth allegation involving a taped recording of a threat, no evidence showed the incident took place.

“In the second and third instances, despite a report being lodged and investigated by the police and ministry, no [basis for the] case was found. Hence, without witnesses and without describing how the school failed to provide a safe and secure environment, the court could not make a ruling to support the claim,” Nik Hasmat said.

The judge said while she understood the single mother's expectation of a good education system for the child based on her experience in the US, based on the facts of the case and on the balance of probabilities, the mother and the affected child had failed to prove their claims.

“In the end, although the mother had shown her general unhappiness with the school, the fact is she chose to have her child schooled there until the end of the year, citing that it was close to her home and her then workplace,” the judge added.

With her ruling, Nik Hasmat dismissed the mother and child’s claim and ordered them to pay RM10,000 total costs to the government and ministry.

According to their suit filed in 2017, the child's ADHD and leg problem made it difficult for him to sit on the floor. Hence, he was registered at the special-education secondary school on Jan 18, 2016 and placed in the school hostel.

Prior to that, he was a student at a normal secondary school, though his education level was only at kindergarten level. He claimed that he was placed in a classroom without the school first checking if he had learning difficulties and that the school did not have the facility or system to categorise students based on their disabilities.

The student claimed that he was bullied several times by other students when he was at the school hostel, like being spit on while he was praying, tied to his bed, punched and kicked, and had his belongings stolen. He also alleged that no action was taken by the school and its principal.

As such, he sought, among others, a declaration that the failure to provide a system to categorise special needs students according to their learning disabilities is a breach of Article 12 of the Federal Constitution and Section 28 of the Persons With Disabilities Act.

The plaintiff also sought general, aggravated and exemplary damages, as well as interest, cost and other reliefs which the court deemed fit.

The school, in its defence, said it was the boy and mother who chose the school.

Counsel Sangeet Kaur Deo appeared for the family while Senior federal counsel Safiyah Omar appeared for the school and government; lawyer Tan Kit Hoo also sat in to hold a watching brief for the Human Rights Commission of Malaysia or Suhakam.

Tan Choe Choe