The Court of Appeal in Majlis Perubatan Malaysia & Anor. v. Asia Pacific Higher Learning Sdn. Bhd. [2022] MLJU 1984; [2022] 1 LNS 397 recently upheld a decision of the High Court[1] and affirmed that breaches of guidelines can incur tortious liability even where such guidelines do not have the force of law.
The 1st Defendant, a regulator of the medical profession in Malaysia, conducted two survey panel visits in May 2011 and April 2013 (“the Survey Panel Visits”) to evaluate the medical degree programmes offered by the Plaintiff for the purposes of accreditation under the Malaysian Qualifications Agency Act 2007 (“MQA Act”). The Survey Panel Visits were chaired by the 2nd Defendant, who was a member of the 1st Defendant at the material time.
The Plaintiff contended that the Defendants had contravened the Guidelines of the Accreditation of Malaysian Undergraduate Medical Education Programmes (“Accreditation Guidelines”) in conducting the Survey Panel Visits and consequently sued the Defendants for negligence, breach of statutory duty and misfeasance in public office. The High Court found the Defendants liable on all three causes of action and ordered that damages be assessed.
On appeal, the Defendants sought to overturn the High Court’s decision by contending, inter alia, that:-
Upon undertaking a thorough evaluation of the legislative framework and the history of the Accreditation Guidelines, the Court of Appeal, inter alia, held that:-
The Court of Appeal then proceeded to consider the Defendants’ contraventions of the Accreditation Guidelines in light of the elements of negligence, breach of statutory duty and misfeasance in public office and upheld the High Court’s finding of liability against the Defendants on all three causes of action.
The Court of Appeal accordingly dismissed the Defendants’ appeal and affirmed the order of the High Court.
Steven Thiru, Gregory Das, Jeremiah Rais and Leah Samuel of Messrs. Steven Thiru and Sudhar Partnership were instructed by Messrs. Gerard Samuel & Associates to act as counsel for the Plaintiff in the Court of Appeal.
[1] Asia Pacific Higher Learning Sdn. Bhd. v. Majlis Perubatan Malaysia & Anor. [2020] 7 MLJ 549; [2020] 2 CLJ 346; [2019] AMEJ 1518 (HC)