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Government Wins Appeal In RM136 Million Negligence SuitBy: Ramjit-->
PUTRAJAYA, Oct 30 (Bernama) -- The Government of Malaysia has succeeded in its bid to throw out a negligence suit amounting to RM136 million filed by 184 pig farmers and the next-of-kin of those who died in the 1998-1999 Nipah virus epidemic.Chief Judge of Malaya Datuk Arifin Zakaria who sat with Federal Court justices Datuk Nik Hashim Nik Ab Rahman and Datuk Zulkefli Ahmad Makinudin today unanimously allowed with cost the government's appeal against the Court of Appeal decision in favour of the plaintiffs.Reading the Federal Court judgment, Nik Hashim said the losses claimed by pig farmers were occasioned by the disease, be it of the Nipah virus, and the loss was not occasioned by the Government.The pig farmers' claim was unsustainable and therefore must be struck out, he said.He also said that in any tort against the Government, the officer of the Government who was responsible for the alleged tortious act must be made a party and his liability be established before the Government can be made liable vicariously as principal.He said it would be insufficient to merely identify the officer without joining the officer as a party because liability by evidence needs to be established.It was upon a successful claim against the officer personally, Nik Hashim said, can a claim be laid against the Government."Therefore, the Court of Appeal order is set aside and the orders of the High Court and Senior Assistant Registrar of the High Court are restored and affirmed," he said.The farmers and the others had sought various damages including for the loss of pigs, damage to farm facilities and medical and funeral expenses amounting to RM136 million.In the suit, they named the Federal Government and Negeri Sembilan, Perak and Selangor governments as defendants and accused them of being negligent in handling the virus outbreak in September 1998.They claimed that their losses were caused by the defendants' negligence, breach of fiduciary duty and breach of statutory duty.The High Court Senior Assistant Registrar struck out the suit on Feb 4, 2004 and this was affirmed by the High Court. On April 5, 2005, the Court of Appeal allowed the plaintiffs' appeal and ordered the case to be tried and disposed of speedily at the High Court.Following this, the Government brought the case to the Federal Court.In the 24-page judgement, Nik Hashim said the Court of Appeal was erroneous in concluding that this case was inappropriate to be summarily struck out."The respondents' (pig farmers') case was so untenable and doomed to failure both on the facts and the law. The striking out order of the respondents' action under Order 18 Rule 19(1) of the Rules of the High Court 1980 on the grounds advanced by the appellant (the Government) was therefore correct," he said.He said the court agreed with the Government's submission that the pig farmers' pleading reveal that the claim was not one of continuous tort but relates to specific acts or omissions namely failing to take steps to determine the cause of the outbreak of the virus and failing to refer or send samples to the right experts for examination.He said all these events happened earlier than March 1, 1999 when the virus isolated."The decision made on March 18, 1999 and March 19, 1999 to cull the pigs were actually not challenged. Therefore, since the suit was filed on March 20, 2002, the action was clearly time barred as it was filed out of time," said Nik Hashim.He said the Court of Appeal and the Federal Court had consistently struck out claims when it was clear that the statute of limitations would be relied on or raised.-- BERNAMA