PUTRAJAYA, 30 Oct 2008: The Malaysian government has succeeded in throwing out a RM136 million negligence suit 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 and Federal Court justices Datuk Nik Hashim Nik Ab Rahman and Datuk Zulkefli Ahmad Makinudin today unanimously allowed with cost the government’s appeal against a Court of Appeal decision favouring the plaintiffs.
Reading the Federal Court judgement, Nik Hashim said the losses claimed by pig farmers were caused by the disease and not 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 government officer who was responsible for an alleged act must be made a party and his liability established before the government can be vicariously liable.
He said it would be insufficient to merely identify the officer without making the officer a party in the suit because liability by evidence had to be established.
It is upon a successful claim against the officer personally, Nik Hashim said, that a claim can be made 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 the Negeri Sembilan, Perak and Selangor governments as defendants, and accused them of negligence in handling the September 1988 virus outbreak.
They claimed that their losses were caused by the defendants’ negligence, and breach of fiduciary and statutory duty.
The High Court senior assistant registrar struck out the suit on 4 Feb 2004 and this was affirmed by the High Court.
On 5 April 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 the case was inappropriately 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’ arguments reveal that the claim was not one of continuous tort.
Rather they were related to specific acts or omissions namely, failing to take steps to determine the cause of the outbreak and failing to refer or send samples to the right experts for examination.
He said all these events happened earlier than 1 March 1999.
“The decision made on 18 March 1999 and 19 March 1999 to cull the pigs was actually not challenged. Therefore, since the suit was filed on 20 March 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