What is government liability? Government liability means the government is being liable for any legal liability which may be found and involve in the civil law or criminal law and also which may arise from diverse part of the law like contracts, torts and so on. The person who seeks to claim liability is the claimant.
In the democratic country, the rule of law presume that the government should have the power on whether to sue or be sued which is same goes to the private individuals. It shows that the government is playing their role as being participate in the community, as if they were likely to be the private individuals too.
However, the government liability is being divided into three categories which are through the contractual liability, tortious liability and liability in case of military personnel.
Liability of Government in Tort
The word “tort” derive from the Latin word “tortus” means wrong. It is also referring to the same meaning of the French word which means wrong but in terms of civil wrong or the wrongful act.
How does such tortious liability arise? According to Winfield & Jolowitz, tortious liability may arise due to the breach of duty which had been fixed by the law. Fixed by the law here is referring to what had been prescribed by a law that already exists. Tort may occurred due to negligence, nuisance, trespass, and defamation.
How will such tortious act relates to the government and can be said that the government had committed to tort? Such situation may arise when for example, Aida and Ali were walking under a highway bridge which was under construction and the bridge was a government project. If suddenly the bridge collapsed and both Aida and Ali were injured because of the collapse, both of them could claim against the government if proven certain conditions.
Nevertheless, before the government will be held to be liable, there are several provision that need to be fulfilled or considered under the Government Proceeding Act 1956 (GPA). This GPA 1956 had become a statute which referred by the government when dealing with the tort action where it had been conducted by its public officer.
The basic provision which define tortious liability in the government of Malaysia is through section 5 of the Government Proceeding Act 1956 (Act 359) (GPA). Based on the provision, it makes the government become liable for any wrongful act or any neglect or default committed by any public officer generally if the officer is a government employee , officer which had acted in good faith and officer that acted under his or her duty which had been imposed by the government. This means if the public officer had acted under his own capacity which means without the government liability, then the public officer will be liable on his own.
In the case of Mohd Nor Afandi Mohamed Junus v Rahman Shah Alang Ibrahim & Anor , the plaintiff manage to succeed in his claim due to the proved that he had in which the defendant was a government officer as according to section 5 of GPA 1956 when the lorry driven by the defendant had collided with plaintiff’s motorcycle while plaintiff was riding it. Section 6 (1) of GPA 1956 also fulfilled and plaintiff can also prove that the second defendant was the registered owner of the lorry driven by the first defendant.
Under section 6 (1) of the GPA 1956, the burden of proof is required from the person who is filing the suit against government. It means that the person who wanted to made claim against government need to show that the act is done by the government officer and it is in the close proximity with the cause of action. In Mohamed Raihan Ibrahim v Government of Malaysia , the court held that the respondent were negligent due to no proper and reasonable step and care of preventing the appellant from getting accidentally struck on head by the shovel. Hence, the appellant manage to succeed in his claim and been awarded damages.
Next, regarding section 6 (4) of the GPA 1956, it is stated that the officer which had conduct tort act and later caused injury must be a person who had been employed and salary paid entirely by the government. The officer’s identity need to be reveal and necessary as the government officer’s negligence conduct need to be established before the government could be held liable. The government officer responsible for the alleged tortious act must be made a party and that officer’s liability must be established before the government can be held vicariously liable when it comes to tort to be held as in this case it upheld the decision made in Haji Abdul Rahman differ to what had been held in Lai Seng & Co v Government of Malaysia , whereby the court held that failure to identify the officer concerned would not result in the action becoming fruitless.
By reading all the three section together, through the view held by the courts is that the identity of the public officer that had been involved must be identify and the liability of the officer established before the government will be held liable. It means that in order for the government to be held liable under section 5, the crucial part which completes the liability is based on the section 6(1) and section 6(4). To simplify section 6 (1) and section 6 (4), are the elements which helps to complete section 5 in order for the claim made against the government to be liable.
In the case of Haji Abd Rahman v Governement of Malaysia, the plaintiff had failed in his claimed because of the failure to prove that defendant is the public officer as what had been required under the Government Procedure Act 1956 as it result for the court to dismissed the action. Same goes to the case of Government of the State of Sabah v Syarikat Raspand , whereby the claim made also fail as the court of appeal held that in order to make a claim under section 5 and 6 of the GPA 1956, the officers concerned must be named in the proceeding. The court of appeal stated that “the alleged tortfeasors viz the government officer had not been stated. This omission on the part of the plaintiff has resulted in the failure to satisfy the requirement of s.5 and s.6. That being position, no proceedings shall lie against the government ie the defendant herein and consequentially, the High court could not exercise jurisdiction in relation thereto ”
Moreover, there are several relevant provision under section 6 of the GPA 1956. Under section 6 (2) of the GPA 1956, stated that any written law in which negatives or limits the liability of the officer in respect of the negligence conduct by the government’s officer. As seen in Zaharah Bt Husin v Government of Malaysia , the court held that though the officer had negligently shot dead plaintiff’s husband, the officer shot was not based on mala fide as the officer had acted in good faith and had the reasonable belief that it was crucial for him to shot a communist terrorist during that time. By looking through this case, it reflected to section 5 of GPA 1956, where there is good faith and reasonable to conduct those action as public officer. Therefore, the public officer had acted within the law. The following case, the court had refused to grant such damages regarding to plaintiff’s sawmill burned due to the time taken was too long when the armed forces had left the place after they had occupied the plaintiff’s sawmill and it could not result by the negligence of the armed forces. However, in the case of Low Kwan Moi v Ramli bin Jamil and Government of Malaysia , the court held that the police was liable thus the government need to pay the amount of compensation as damages. This case happen during the Chinese New Year where a number of fisherman were found gambling and later one of the gambler tend to jump into another fishing boat. However, when the gambler tried to jump a police shouted at him which cause him to went down into the river and after several hours later his body was recovered in the river. Court stated that the act of the police shouted had contributed largely towards the tragedy.
While, under section 6 (3) of the GPA 1956, it stipulates that no action is allowed against government for any acts omitted when a person is exercising a judicial function. It means that when the judge had negligently made his decision towards the party concern, there are no action can be made against the judge upon his or her negligence conduct when making the decision or when exercising his or her judicial function.
Same goes to section 7 (1) of the GPA 1956, however it is concerning with public officer in exercising the public duties of the government. It means that no proceeding besides breach of contract can be taken against government on account of anything done or refused to be done by the government or public officer who exercising public duties of the government
Anyhow, under section 7 (3) of the GPA 1956, a person may take action against the government to claim for compensation when the public officer fail to take reasonable care and step while conducting his or her public duties. In Government of Malaysia v Jumat bin Mohamed , the court held that the teacher had failed to give sufficient warning on the usage of the equipment and taken step to avoid injury regarding to the distance put between students while conducting activity, even though proper and sufficient supervision was given but still not sufficient enough to prevent the injury to happen. Hence, damages granted.
After all, regarding to who wishes to bring action against the State Government then, the person must file suit against the State Government instead of individual party. In the case of Fook Lee Brothers v Conservator of Forests , a suit had been brought against the defendant concerning of the excess of royalty on timber paid to him. Later, the suit had been dismissed as the royalty on timber is the matter relates to state revenue and the claim may be enforced against State Government supposedly instead of the defendant.
In a nutshell, regarding to liability of government in tort, the government would only held to be liable when the conduct or act are fulfil which had been stated under the Government Procedure Act 1956. In which the highlighted section that would make the public officer to be liable are stipulates under section 5 (1), section 6 (1) and section 6 (4). While, the other section which had been mentioned above would act as the other issued to be consider as the exception to tort conduct by the public officer. In which the exception would invalid the public officer to be liable even though the three sections are fulfil. Therefore, the government officer may also be held liable for such tortious conduct with prove of the person who had claimed to be injured due to public officer omitted act. Due to such law, it had acted as the protection towards the society and make the government officer to be more careful and responsible towards any action that they are conducting while working for the government.