Government Liability

- It is in accordance with the Rule of Law that governments in democratic countries

should be able to sue and be sued in the same way as private individuals.
- Governments participate in the community as if they were private individuals.
Tortious liability:
- The basic provision defining tortious liability of the government in Malaysia:
- Sec. 5, Government Proceedings Act 1956: The government is to be held liable
for any wrongful act done, or any neglect or default committed, by any public
officer.
- General principle under this provision: The administration is liable to pay
damages when the action of the administration falls under one of the
recognised torts, which are trespass, nuisance or negligence.

- In order for the government to be held liable under Sec. 5, there are two elements
that must be fulfilled.

- First element, Sec. 6(1): An action shall not lie against the government under Sec. 5
unless proceedings for damages in respect of the act, neglect or default by an officer
would have lain against such officer personally.
- Unless it can be shown that the act complained of would not have given rise
to an action against the officer concerned, the action against the government
will fail.
- The burden of proof lies upon the person filing the suit against the government
to show that the act done by the officer is in close proximity to the cause of
action.
- Mohamed Raihan Ibrahim v Government of Malaysia: Where the appellant
sustained injuries when he was accidentally struck on the head by a shovel
wielded by a pupil during a practical gardening class, he claimed that the
respondents failed to provide supervision of the pupils participating and to
instruct the pupils on the proper use of a shovel.
Held: The respondents were negligent for failing to take all reasonable and
proper steps to prevent the appellant under their care from sustaining injury
and that the respondents did not check the condition of the garden tools or
provide a safe system of conducting the class. The appellant was awarded
damages accordingly.

- Second element, Sec. 6(4): The government is not liable for any act, neglect or defaults
of an officer unless he was employed by the government and paid in respect of his
duties as an officer wholly out of government revenues.
- The officer who has acted negligently and caused injury must be a person
employed by the government, whose salary is paid entirely out of government
revenues.
- Whether the identity of the wrong-doing officer needs to be established or not
depends on the nature of the cause of action.
 - In a suit for damages arising out of negligence, the officers identity is
necessary as the officers negligence must be established before the
government can be held liable.
- Haji Abdul Rahman v Government of Malaysia: The plaintiff brought an action
to recover damages arising out of a traffic accident caused by the negligence
of the driver of a government vehicle. The court dismissed the action as the
government servant, which was the driver, was not made a defendant. Held:
Section 5, 6(1) and 6(4) contemplate that the identity of the officer must be
ascertained and the liability of the officer must be established before the
government can be made liable.
- Affirmed by the Federal Court in Kerajaan Malaysia v Lay Kee Tee: Where it
was held that in tort, the government officer responsible for the alleged
tortious act must be made a party and that officers liability must be
established before the government can be held vicariously liable.

- Limitations:
- Sec. 5: A public officer acting in his personal capacity, which is not in pursuance
of his duty and outside the scope of his employment, will be personally liable
for his actions, and no cause of action shall arise against the government.
- Sec. 6(3): The government is protected from any proceedings for any acts done
or omitted to be done by a person exercising a judicial function.
- Sec. 7(1): No proceedings, other than for breach of contract, are to lie against
the government on account of anything done or omitted to be done or refused
to be done by the Government.
Military personnel:
- Sec. 14, GPA: Acts or omissions causing death of, or personal injury to, a member of
the armed forces by another member of the armed forces while on duty.
- The government or a member of the armed forces will not be liable if
- (1) The person deceased or injured was on duty as a member of
the forces, or, if not on duty, was on specified premises or in a
vehicle used at the relevant time for purposes of the forces
- (2) The Minister of Finance has certified that the members suffering or
death would be treated as attributable to service for the purpose of
entitlement to an award under service regulations
- If the court is satisfied that the act or omission was not connected with the
execution of duties as a member of the forces, the member responsible for
the act or omission cannot be exempted from liability.
- If either one of the conditions are not fulfilled, the injured person may then
sue the government under Sec. 5.
- Choo Fah Fatt v Che Rus Othman: Where the plaintiff was travelling in a military lorry
driven by another military man, the plaintiff suffered injuries as a result of a collision
with a civilian lorry. Both the plaintiff and the driver were on duty as members of the
force. The Minister of Finance then issued the necessary certificate under Sec. 14.
After the certificate was issued, neither the government nor the driver could be held
liable for the plaintiffs injury.
Right to Information
- The principle of open government as in Australia v John Fairfax and Sons: There should
be no restraint on public information relating to the government as it would enable
the public to monitor the actions of the government.
- An open government promotes government credibility and responsibility in
the eyes of the people.
- Openness can act as a check on inefficiency and improper exercise of powers
by administrations, thus promoting a clean and honest government.

- The purpose of government privilege is to prevent the disclosure of evidence in the

courts on the ground that there is public interest, or injury is caused to national affairs
by the disclosure of certain documents or information in certain documents.

- The Official Secrets Act: The government has the discretion to classify information as
a secret, and any possession or communication of such information will cause a person
to be subjected to punishment as in Lim Kit Siang v PP.

- Sec. 123, Evidence Act: No one shall be permitted from producing official records
relating to affairs of the State or to give evidence from such materials without
permission of the head of the department, subject to control of the Minister or Chief
Minister.

- However, Sec. 162, in adopting the principle provided in Conway v Rimmer: Although
a document is prejudicial to the public interest, notwithstanding any objection, the
court shall be the one to determine the validity of such objection.

- BA Rao v Sapuran Kaur: The respondent had claimed damages on behalf of the estate
of the deceased for his death as a result of the negligence of medical officers at the
district hospital. A committee of inquiry was set up to inquire into the death of the
deceased. The respondent issued a notice to produce the reports and findings of the
committee. The appellant objected on the ground that the reports and findings of the
committee were unpublished records and were privileged from disclosure under
Section 123. In supporting the claim, the Deputy Secretary General of the Ministry of
Health filed an affidavit objecting to the production of the report on the ground of
public interest and public service. Held: The trial court disallowed the objection and
ordered production of the committees report and findings. The Federal Court, in
dismissing the appeal and approving the lower courts approach, held that in reading
Section 123 and 162 together, it is for the court to determine the admissibility of the
evidence. A mere assertion of confidentiality and involvement in affairs of State
without evidence in support cannot shut out the evidence sought.