Master Brisbane ak Itang v Robinson Lee & Ors [2014] 2 MLJ 565

Court of Appeal (Putrajaya)

Duty of Care in Immunisation

2.     In 2003, the Appellant was admitted to the school that was situated near a pig farm.  The pig farm was less than 2 km away from the school.

3.     On 25 September 2006, the Appellant caught a fever, so his teacher sent the Appellant to the government clinic.  The doctor prescribed some panadol and a cough syrup.

4.     On 28 September 2006, the Appellant’s mother sent him to the Serian District Hospital, and he was suspected of meningitis.

5.     On 30 September 2006, he was transferred to the Sarawak General Hospital (SGH), where he was diagnosed to have been infected with the Japanese Encephalitis (JE) virus.

6.     As a result of the infection, the Appellant, who was ten years old at the time, suffered brain damage, which left him permanently disabled physically and mentally, including requiring lifetime care.

7.     He was the only one who contracted the JE disease in his school, which was less than 2km from a pig farm.  The pigs are the natural hosts of the JE virus, which may be transmitted from the pigs to human beings via the culex mosquitoes.

8.     The Appellant’s school was in a high-risk area for JE infection by its proximity to the pig farm.

9.     Back in 1992, there was an outbreak of the JE virus in the District of Serian, Sarawak where the school was located.

10.  Hence, in 2001, the Ministry of Health directed the Department of Health of Sarawak to immunise, among others, children aged 1 to 15 years old living within pig farms or in areas within two kilometers of pig farms, against the JE virus.

11.  Despite the circular and guidelines, the pupils of the Appellant’s school were not vaccinated when the Appellant contracted the disease.

12.  The Appellant, represented by his father, sued the Respondents in the High Court for negligence.  While the trial judge held that the Appellant’s infection resulted from the school’s proximity to the pig farm, the judge decided that the Department/Ministry of Health was not liable for negligence.

13.  In this instant appeal, it was submitted that the Department of Health/Ministry of Health breached its common law duty of care to the plaintiff when it failed to vaccinate him against the JE virus based on the reason of the circular and guidelines and considering the school’s proximity to the pig farm.

(a)  The Appellant submitted that due to the circular and guidelines provided by the Ministry of Health, and considering the proximity of the school to a pig farm, he argued that there was a breach of the common law duty of care by the Department of Health/Ministry of Health towards the Appellant for the failure to vaccinate the Appellant against the JE virus.

(b)  The Court of Appeal referred to the Australian High Court case of Sutherland Shire Council v Heyman and Another (1985) 60 ALR 1, in which the Court was of the view that a public authority did not has a duty of care concerning decisions which involved or were dictated by financial, economic, social or political factors or constraints.

(c)  In this case, the Court was of the view that the Department/Ministry of Health did not owe a duty of care to ensure that the Appellant received immunisation when being infected with the JE virus.

(d)  The Court decided to adopt a more cautious approach regarding the decision to impose any liability on the Department/Ministry of Health towards the Appellant.

(e)  Therefore, the Court held that would be unfair, unjust, and unreasonable to impose a common law duty of care on the Department/Ministry of Health to ensure the immunisation of the Appellant against the JE virus.

(f)    As a matter of fact, several factors support the position of the Court of Appeal.   Firstly, the Court decided that there had not been a recent outbreak of the JE virus infections in areas nearby to the school prior to the incident.

(g)  Secondly, the immunisation program covers the entire country.  It requires cooperation from other governmental agencies for its implementation of the policy or program.

(h)  Thirdly, there were limitations such as vaccine shortages and budget constraints.

(i)     Finally, imposing a common law duty of care on the Department/Ministry of Health under these circumstances would have significant implications, potentially leading to a flood of litigation against them in the future.

2.     However, the Department/Ministry of Health as a public authority does not hold any responsibility to take care of the personal health of every individual regarding the immunisation policy.