LAW506

ADMINISTRATIVE LAW
GOVERNMENT LIABILITY
1. CONTRACTUAL LIABILITY
2. TORTIOUS LIABILITY
3. MILITARY PERSONNEL

1
INTRODUCTION
• Government liability can be categorized into three
(3) categories:
a) Contractual Liability
b) Tortious Liability
c) Liability in case of Military Personnel

2
A) CONTRACTUAL LIABILITY
• Traditionally, the government is not supposed to
take part in business; hence, no contract
whatsoever can be made with the government.
• This is the basis of the laissez faire system which
says that it is the individuals, who are driven by self
interest, who should be determining the economic
system.

3
• However, this capitalist economic system experienced
a major shift in the 1930s which drove the
government to take part in the economy since it was
argued that the market forces alone could not
perform economic functions.
• The government, via their policies, should guide,
correct and supplement these forces.
• Here, the government may enter into contracts with
individuals or companies for the sake of country’s
development and state economic interest

4
 LIABILITY IN CONTRACT

GOVERNMENT GOVERNMENT
FEDERAL
PROCEEDINGS ACT CONTRACTS ACT
CONSTITUTION 1949
1956

Article 69 (1) Section 4(c) Section 2

Section 29(1) Section 6
Section 8

5
Relevant Provision in the Federal
Constitution
• Article 69(1) of the Federal Constitution provides
that the Federation has power to acquire, hold and
dispose of property of any kind and to make
contracts.
• To be a binding contract it has to be made by the
authority of the government.

6
Relevant Provisions in the
Government Proceeding Act 1956
• Section 4 (c) provides that:
• claims are enforceable by proceedings against the
Government where such claims arise out of any contract
made by the authority of the government which would,
if such arisen between subject and subject afford
grounds for civil proceedings

7
Relevant Provisions in the
Government Proceeding Act 1956
• Section 29 (1) provides that specific performance
cannot be granted against the government but in
lieu thereof the court may make an order
declaratory of the rights of the parties.

8
Relevant Provisions in the Government
Contracts Act 1949
• Section 2 provides for the contract:
- if reduced into writing, are to be made in the name of the government
and the government officers signing these contract should possess
written authority from the government without which the contract
will not bind the government in case of breach
• Cases:
• SUWIRI SDN BHD V GOVT OF THE STATE OF SABAH [2008] 1
CLJ 123
• PETROJASA SDN BHD V THE STATE GOVERNMENT OF
SABAH [2002] 1 LNS 105

9
SUWIRI SDN BHD V GOVT OF THE STATE OF SABAH [2008]
1 CLJ 123
• The appellant appealed to the Federal Court in
respect of a contract made with the respondent
concerning a license to fell and extract timber in a
forest reserve in Sabah whereby the respondent
reduced the area for such activity after the
appellant applied for an extension of time.
• It was held that the contract could not be a valid
contract because the officer concerned did not
have a written authorization to act on behalf of the
State govt.

10
PETROJASA SDN BHD V THE STATE GOVERNMENT OF
SABAH [2002] 1 LNS 105

• The court in this case had to determine whether

there was a valid contract even though there is no
formal agreement been made. It considered that
contracts can be validly formed in certain situations
by looking at the implied terms in the agreement
made.
• It was held that there was a valid agreement
because, inter alia, both parties had taken steps to
ensure that the agreement took effect.

11
Relevant Provisions in the
Government Contracts Act 1949
• Section 6 further provided that no contracts shall
be deemed to be made by the authority unless
those are made according to the procedures laid
down in the Act.

12
Relevant Provisions in the
Government Contracts Act 1949
• Section 8 states that:
• no public officer shall be liable to be sued personally
upon any contract which he makes in that capacity, but a
public officer shall be personally liable when he
expressly pledges his personal credits, or where he
contracts otherwise than as the agent of the
government.
• Case:
• MACBEATH V HALDIMAND [1786]

13
MACBEATH V HALDIMAND [1786]

• The court in this case held that General Haldimand

was not personally liable for the goods ordered for
military purposes because the plaintiff knew that
the defendant was contracting on behalf of the
government and he knew that the goods were used
for military purposes.

14
B) TORTIOUS LIABILITY
• The word ‘tort’ comes from the Latin word ‘tortus’
which means crooked or twisted.
• It denotes certain civil wrongs as distinct from
criminal wrongs.
• For example:
• Negligence
• Nuisance
• Trespass
• Defamation

15
Relevant Provisions in the
Government Proceeding Act 1956
• Section 5 provides that the government will be
liable for any wrongful act done, or any neglect or
default committed by any public officer generally
if:-

1) That officer is a government officer (refer to Sec 6(4))

2) That officer acted in good faith
3) That officer acted under the orders/instructions of the
government
• Case:
• MOHD NOR AFANDI MOHAMED JUNUS V RAHMAN SHAH
ALANG IBRAHIM [2008[ 2 CLJ 369

16
MOHD NOR AFANDI MOHAMED JUNUS V RAHMAN SHAH
ALANG IBRAHIM [2008[ 2 CLJ 396

• The plaintiff in this case succeeded to prove that

the defendant was in fact a government officer
under Sec 5 of the GPA 1956 when the lorry driven
by the defendant collided with him while he was
riding his motorcycle. The plaintiff also had satisfied
Sec 6(1) of the GPA and he could also proved that
the second defendant (the Malaysian govt) was the
registered owner of the lorry driven by the first
defendant.

17
 SECTION 6 OF
GOVERNMENT PROCEEDING ACT 1956

SEC. 6(1) GPA: S. 6(2) GPA :

THE LIABILITY WILL BE IF THERE IS LIMITATION
TAKEN OVER BY THE CLAUSE/ EXCLUSION CLAUSE
GOVT, ONCE THE UNDER ANY STATUTE, IT WILL
PUBLIC SERVANT IS LIMIT/EXCLUDE GOVT’S
FOUND LIABLE LIABILITY

S. 6(3) GPA:
NO ACTION CAN BE SEC. 6(4) GPA :
TAKEN AGAINST GOVT, GOVT ONLY LIABLE TO
IF SERVANT DOESN’T OFFICERS UNDER
PERFORM HIS JUDICIAL GOVT’S PAYROLL
DUTY

18
 Section 6(1)
• Section 6 (1) states that if the act complained of
would not have given rise to an action against the
officer concerned, the action against the
government will fail.
• Case:
• HAJI ABD RAHMAN V GOVT OF MALAYSIA [1966] 2 MLJ
174

19
HAJI ABD RAHMAN V GOVT OF MALAYSIA [1966] 2 MLJ
174

• The plaintiff brought an action to recover damages

arising out of a traffic accident due to the
negligence of the driver of a government vehicle.
The driver of the motor vehicle was not made a
party to the action.
• Held:
• The Court dismissed the action as the government
servant was not as defendant. The identity of the
concerned officer must be ascertained and the liability
of the officer must be established before the
government can be made liable.

20
 Section 6(2)
• Section 6 (2) provides that if any written law
negatives or limits liability of the officer in respect
of any act, neglect or default committed by him,
then to that extent, the liability of the Government
is also limited.
• Case:
• ZAHARAH BT HUSIN V GOVT OF MALAYSIA [1978] 2 MLJ
76
• TELOK SABANG BHD V GOVERNMENT OF MALAYSIA
[1978] 2 MLJ 76

21
ZAHARAH BT HUSIN V GOVT OF MALAYSIA [1978] 2
MLJ 76

• A member of a security forces shot dead two

villagers in the forest at night suspecting them to
be communist terrorists.
• A suit for damages was brought against the
goverment on the ground of negligence of the
concerned member of the security force.

22
• Held:
• Dismissing the suit, the court ruled that although he was
negligent in what he did, he was not acting mala fide. He
might have been careless in what he did but he has acted
in good faith and in reasonable belief that it was necessary
for him to act as he did & therefore he acted within the
law.
• Explaining the scope of Section 5 of Emergency (Essential
Powers) Ordinance, 1969, the court said that no action can
be taken against the public officer or the govt even though
that he acted in good faith and in a reasonable belief that
the action was necessary for the purpose intended-this
limits the liability of government.

23
TELOK SABANG BHD V GOVERNMENT OF MALAYSIA
[1978] 2 MLJ 76

• The suit arose as a result of the occupation of the

plaintiffs sawmill by the armed forces. The platoon
vacated the shed and a fire broke out in the main
building of the sawmill 31 hours later. The plaintiff
claimed damages for the destruction of the sawmill
by the fire through negligence of the platoon.
• The Government invoked section 5 in protection.

24
• Held:
• The court accepted that section 5, gave indemnity to public
officers for the purposes intended therein during an
emergency. But the court ruled that it was a doubtful that
Section 5 was intended to indemnify an act of
expropriation of private property without paying
compensation by the, armed forces.
• Meaning to say the government is not liable, but
compensation still must be made.

25
• Indeed, if it were so, it would contravene Article 13 of
the Federal Constitution guaranteeing the right to
compensation when private property was so acquired.
• Nevertheless, the court held that the fire at the sawmill
could not be attributed to the negligence of the armed
forces as it broke out 31 hours after they had left.

26
 Section 6(3)

• Section 6(3) protects the government from any

proceedings for any acts done or omitted to be
done by a person exercising a judicial function.

27
 Section 6(4)
• The government is not liable for any act, neglect or
default of an officer unless he was employed by the
government and paid in respect of his duties as an
officer wholly out of the government revenues.

28
 SEC. 7(1) GPA
GOVT CANT BE LIABLED FOR ANY
ACT/OMISSION ANY OF ITS SERVANT IN
EXERCISING HIS PUBLIC DUTY :

CONSTRUCTION, CONSTRUCT/ MAINTAIN

MAINTENANCE SCHOOL
OF RAILWAY ROAD, HOSPITAL AND PUBLIC
BRIDGE BUILDING

CONSTRUCT DRAINAGE, CONSTRUCT WATER,

FLOOD MITIGATION CHANNEL/
RIVER CHANNEL

29
Relevant Provisions in the
Government Proceeding Act 1956
• Section 7(1) states that no proceedings are to lie
against the government on account of anything
done or omitted to be done or refused to be done
by the government or any public officer in exercise
of the public duties of the government.

30
Relevant Provisions in the
Government Proceeding Act 1956
• The expression exercise of public duties provided
under Section 7(2) includes:
1. constructions, tenancy etc, of railways, roads,
bridle-paths or bridges;
2. construction, maintenance etc of school, hospitals or
other public buildings; or
3. drainage, flood prevention and reclamation works; or
4. of channels of rivers and waterways.

31
 SEC. 7(3) GPA

IF THE PUBLIC SERVANT WAS IF THE PUBLIC SERVANT

NEGLIGENT WAS TRESPASSING

THE AGGRIEVED PARTY CAN TAKE

ACTION TO GET COMPENSATION

32
Relevant Provisions in the
Government Proceeding Act 1956
• However, under section 7(3) a party may sue for
damages or compensation arising out of negligence
or trespass in the execution of any works of
construction or maintenance undertaken by the
government in the exercise of its public duties.

33
Relevant Provisions in the
Government Proceeding Act 1956
• Section 22
• If one wishes to sue the State Government, one has to
file the suit against the State Government, not against
individual party.

34
MOHAMMAD RAIHAN BIN IBRAHIM V GOVT
OF MALAYSIA [1981] 2 MLJ 27

• The first appellant sustained injuries when he was

accidentally struck on the head by a cangkul
wielded by a fellow pupil in the course of the
practical gardening class.
• He sued for damages claiming that the respondents
failed to provide proper supervision of the pupils
participating in the gardening class and failed to
instruct the pupil who caused the injury on the
proper use of a cangkul.

35
• Held:
• The High Court dismissed the claim holding that the
respondents had given proper instructions and warnings
on the use of gardening tools and had taken reasonable
steps and precautions to ensure the safety of the pupils
when using agricultural tools.

36
• On appeal, from evidence on record, the court concluded
that the respondents were negligent for failing to take all
reasonable and proper steps to prevent the appellant
under their care from sustaining the injury and that their
teacher did not check the condition of the garden tools or
provide a safe system of holding the gardening class.

37
C) GOVERNMENT LIABILITY IN THE EVENT OF INJURY
OF MILITARY PERSONNEL

• A significant limitation on governmental liability is

imposed by Section 14 of the GPA.
• It refers to acts or ommission causing death of, or
personal injury to a member of the armed forces by
another member of the armed forces while on
duty.

38
• Neither the government nor he is subject to any
liability if the following two conditions are fulfilled:
1. the person deceased or injured was on duty as a member
of the forces or, if not on duty, was on some premises or
vehicle used at the relevant time for purposes of the
forces;
2. the Minister of Finance certified that his suffering or
death would be treated as attributable to service for the
purpose of entitlement to an award under the
regulations.
• Cases:
• CHOO FAH FATT V CHE RUS BIN OTHMAN [1977] 1 MLJ 230
• MOHAMMAD BIN HUSSAIN V HASHIM BIN SAID [1978] 1 MLJ 127

39
 SEC. 14 GPA 1956
A MILITARY PERSONNEL OF GOVT WHICH DOING HIS JOB WILL NOT BE LIABLED
UNDER TORT FOR CAUSING DEATH/INJURY TO OTHER MILITARY PERSONNEL, IF
2 CONDITIONS ARE MET:

IN LINE OF DUTY OR
IN MILITARY THE INJURY/DEATH
PREMISE/VESSEL/ IS AWARDABLE
AIRCRAFT

1)CHOO FAH FATT V CHE ROS OTHMAN

2) MOHAMMAD BIN HUSSAIN V HASHIM BIN SAID

40
CHOO FAH FATT V CHE RUS BIN OTHMAN [1977] 1 MLJ
230
• The action for damages arose out of an injury
caused to an army personnel as a result of a
collision between a military lorry and a civilian
lorry.
• The injured person was travelling in a military lorry
driven by another military of the force.
• The Minister of Finance issued the necessary
certificate under section 14 of the GPA.

41
• Held:
• After such a certificate, neither the government nor the
lorry driver could be held liable for the plaintiffs injury
and so his action was dismissed by the court.

42
MOHAMMAD BIN HUSSAIN V HASHIM BIN SAID [1978] 1 MLJ
127

• The respondent, a member of the armed forces,

met with an accident while travelling in a vehicle
driven by another army man.
• The injured person filed a case claiming damages
from the Government as employer of the driver
whose negligence has caused the accident.

43
• But before the case could proceed much further,
the necessary certificate under section 14 was
granted.
• The case was dismissed but the respondent
claimed his costs.
• The Federal Court awarded the costs to the
respondent against the government.

44
CONCLUSION
• We may take action against the government for
contractual breach, tortious act as well as for the
injury of its military personnel. However, certain
requirements need to be fulfilled in order to
succeed such action. After fulfilling all the
requirements, the government may be held liable
for the respective matters.

45