Kota Kinabalu: The High Court on Thursday dismissed an appeal to set as–ide RM339,000 damages awarded to the parents of three students who drowned during a jungle trekking activity organised by SMK Putatan, eight years ago.
Judge Datuk Celestina Stuel Galid affirmed the decision by the Sessions Court in awarding the damages to the three respondents (parents) namely, Nurfazryena Fung Abdullah, Jakaria Osman and Norisham Purah.
The court found that the Resort and the school owed the deceased students a duty of care and had breached the said duty.
The court did not find any error in the decision of the Sessions Court trial judge.
The court also awarded RM10,000 costs for each of the parents, on Thursday.
In the suit, the parents named the Membakut Lake Eco Resort Sdn Bhd, SMK Putatan Principal, Malaysia Education Ministry and Government of Malaysia, as the first, second, third and fourth defendants.
On Dec 13, 2022, the Sessions Court made the decision in favour of the first, second and third plaintiffs, namely, the four defendants were jointly and severally liable for negligence, aggravated damages in the sum of RM100,000 were awarded to each of the first, second and third plaintiff, an award for RM3,000 funeral expenses for each of the plaintiffs and an award for bereavement in the sum of RM10,000 to each of the plaintiffs.
The Sessions Court also imposed interest on the awarded aggravated damages at the rate of five per cent per annum from the date of service of Writ of Summons to the date of judgment and also interest on the awarded special damages at the rate of 2.5 per cent per annum from the date of Writ of Summons to the date of judgment.
The court also imposed an interest of five per cent per annum on the judgment sum from the date of judgment to date of full and final settlement.
Being dissatisfied with the Sessions Court’s decision, the Resort and the school had filed the respective appeals to the High Court.
The background facts of the incident, according to the plaintiffs in the Sessions Court, on Apr 29, 2017, what was supposed to be a jungle trekking activity for students from SMK Putatan during a leadership camp organised by the school and held in Membakut Eco Lake Resort owned and operated by the first defendant turned into a tragedy when three students, Hafiz Hamizan Abd Rahman, Quzaimi Jakaria and Danial Norman Norisham drowned while going through a pond.
The three students were only aged 15 and 17 respectively when they drowned.
On the morning of Apr 29, 2017, the students of SMK Putatan participating in the said school camp were broken into groups to embark on a jungle trekking excursion in the said resort.
A staff of the said resort, Rapid Rashid, acting as a guide, had led the first two groups of students in the said jungle trekking excursion. The first two groups comprised 11 to 12 students each. The deceased students were part of the first group.
The guide eventually led the students in the first group and second group towards a deep pond in an oil palm plantation situated within the resort.
The deceased students together with another student, Siti Norhayati Sunardi Alias, who were lined up in front of the groups were then ordered by the guide to go through the pond without any safety equipment such as rope or life jackets.
The four students encountered difficulties while crossing the pond and consequently, the deceased students drowned whereas Siti Norhayati was saved by another student.
After the tragedy happened, the plaintiffs as parents of the deceased students attempted to obtain clarification from the school pertaining to the actual event which led to the drowning of the deceased students but they were unable to secure any satisfactory answer.
Siti Norhayati also testified during trial that the students were silenced by the school into not discussing the event which transpired on the day of the tragedy.
When she attempted to inform the parents of the deceased students about what happened during the drowning incident, she was ostracised by the students and teachers of the school.
Consequently, the plaintiffs as the respective parents of the deceased students together with their other family members were put under much agony, stress, anxiety and emotional stress due to the tragedy and how the matter was subsequently dealt with by the defendants.
Upon learning about the actual event which led to the tragedy, they decided to file the suit at the Kota Kinabalu Sessions Court to claim for loss and damages against the defendants who were negligent and failed to prevent the deceased students from drowning.
The plaintiffs’ cause of action in the suit was based on the tort of negligence. It was the plaintiffs’ main contention that the defendants were negligent in that they had respectively failed in their duties to keep the deceased students who were only minors at the material time safe during the jungle trekking activity.
The main complaint against the resort was that they failed to take the necessary or appropriate safety measures to keep the deceased students safe during the jungle trekking activity.
It is an undisputed fact that no teacher from the said school had accompanied the first group or the second group of the students at all material times during the jungle trekking activity.
The teachers had also refused the resort’s invitation to check the jungle trekking route prior to the camp.
Counsel Eow Ee Pei represented the parents, counsel Jamadi Saleh represented the resort and State Federal Counsel Mohd Suhaimie represented the school, the Ministry of Education and the Government of Malaysia.
