In a summary of the statement of defence against the six negligence suits by the families of the seven children - of whom only two survived the ordeal in 2015 - the federal government and eight other defendants contended that the incident and its fallout were fully or partly caused by the negligent acts of the students.

The defendants listed the alleged negligent acts or omissions by the seven children, among them that they violated school rules by leaving the school without the knowledge and permission of the teachers and school warden, to the point of “endangering their own safety and lives”.

“(The children) still ran away from security guards when found and went to the jungle area, which caused them to get lost in the jungle and exposed them to various dangerous areas and wild beasts in the jungle. 

“(The children) did not refer the problem and/or seek help from anybody from SK Tohoi especially the school warden, on the contrary taking their own action that in the end endangered themselves.

“(The children) Intentionally did not reveal themselves or get the help of the teams conducting search and rescue (SAR), in fact, it is believed that (they) had run or hid themselves during the search and rescue operation conducted by SK Tohoi and the SAR team,” the defendants contended in the filing made at the Kota Bharu High Court on May 20 last year.

In the filing sighted by Malaysiakini, the defendants cited the legal maxim of “volenti non fit injuria” whereby the seven Orang Asli children had intentionally and negligently at their own risk put themselves in a situation that posed a danger to their safety and lives.

They added that they have done all that their duty entails under the circumstances, such as taking appropriate steps to safeguard the safety and welfare of the students at SK Tohoi, as well as conducting SAR to locate the children.

The defendants in the alternative also claimed that the incident could have been avoided if the third party that they hired to handle security at the school had among others taken steps to prevent the children from leaving the school as well as conduct security patrols during the time and day of the incident.

Six negligence suits

It was reported that the seven children ran away from their hostel at SK Pos Tohoi on Aug 23, 2015, allegedly out of fear of being punished by their teacher for bathing in a nearby river without permission.

Norieen Yaakob and her friend, Miksudiar Aluj, who were then 13 and 14 respectively, were the only two survivors found on Oct 9 after 47 days. Norieen’s eight-year-old brother Haikal Yaakob was among the five children who died. The other four children who did not survive were Juvina David (seven), Sasa Sobrie (eight), Linda Rosli (eight), and Ika Ayel, (nine).

Then on Aug 13, 2018, before the Kota Bharu High Court, the families of the seven children filed a total of six negligence actions against the government and eight other defendants.

The other eight defendants are the education minister, the education director-general, the headmaster of SK Tohoi, the school dorm warden, the rural development minister (the ministry has since morphed into the rural and regional development ministry), the Orang Asli Welfare director-general, the inspector-general of police and the Gua Musang district police chief.

When contacted by Malaysiakini, counsel Lim Heng Seng - who is acting for plaintiffs Norieen and her 48-year-old mother Midah Angah - confirmed that all the civil actions are set for joint trial before Kota Bharu High Court judge Mohamad Abazafree Mohd Abbas on Monday to Thursday next week.    Among the issues to be determined during the civil court trial are the particulars of the injuries suffered by Norieen, now 21, and Midah.

According to the cause papers, Norieen claimed to have been diagnosed with post-traumatic stress disorder and to have allegedly suffered from it from the day of the incident until now. “From the time the first plaintiff (Norieen) was found, the first plaintiff continues to demonstrate highly avoidant behaviour in relation to the incident and inhibited social skills when confronted with strangers,” the statement of claim read.

Through the same filing, Midah claimed she had been experiencing symptoms of flashbacks and hyperarousal. “The second plaintiff (Midah) registered a score of 44 on the secondary traumatic stress scale (STSS) which was used to determine the effect of the traumatic incident on her. This score of 44 denotes ‘high impact’.

“The second plaintiff registered a score of 42 on the impact of event scale(IES-R) which also denotes a ‘high impact’,” the filing read. The defendants are represented by the Attorney-General’s Chambers.

Koel : Negligent acts of students"? Excuse me, the children who died would have been in primary school. What understanding did they have about negligence? Is this stupid ministry blaming the child victims for their death instead of accepting responsibility for the deaths?

Schools and especially boarding schools carry a moral responsibility in safeguarding the welfare of children entrusted to them by parents. They should oversee all aspects of a child's welfare, safety and learning in the absence of parents. What is this nonsense being spouted by this govt? In the first place, why and how did the children run away from this school?

What security measures do such schools have to ensure that a child doesnt leave without being accompanied by a legal parent or guardian? This was sheer negligence on the part of the school. And of course, this is the most appalling justification for a child's death. Is that because the parents are poor and uneducated?