Nadarajah Lingam A/L Sinnadurai v Dato Sri Dr. Suresh Raj Lachmanan (WA-22NCvC-486-09/2022)

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LANESWARAN A/L NADARAJAH LINGAM … PLAINTIFFS

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ASSUNTA HOSPITAL (M) SDN BHD (17026-H) … DEFENDANTS 03/01/2024 08:36:47 WA-22NCvC-486-09/2022 Kand. 84 GROUNDS OF JUDGMENT INTRODUCTION [1] This is an application by the Plaintiffs to amend their Statement of Claim (Enclosure 20) pursuant to Order 20 Rule 5 and Order 92 Rule 4 of the Rules of Court 2012 (ROC). The first application to amend the Statement of Claim (SOC) was filed on 28.11.2022 (Enclosure 5) which Order was granted on 12.01.2023. BRIEF FACTS [2] The Plaintiffs commenced this action against the Defendants for tort of negligence arising from the demise of Madam Shanti A/P Ponnudurai (Deceased) on 28.8.2016. The Deceased was under the treatment and care of the Defendants from 12.8.2016 to 28.8.2016. [3] The Deceased was the wife of the 1st Plaintiff and mother of the 2nd to the 5th Plaintiffs. The basis of Enclosure 20 is for amendment of the SOC on dependency claim under section 7 of Civil Law Act 1956 (CLA) and administrator of the Deceased’s estates under section 8 of CLA. [4] The Plaintiffs had initially filed the Writ of Summons (Enclosure 1) and SOC (Enclosure 2) on 27.8.2022 where the Plaintiffs instituted this action against the Defendants in their personal capacity allegedly suffering from psychiatric injuries due to the demise of the Deceased and not as dependents under section 7 or on behalf of the estate under section 8 of CLA. [5] Subsequently, on 28.11.2022, the Plaintiffs filed an application to amend the Statement of Claim (Enclosure 5), which was granted by this Court on 12.01.2023 (Enclosure 11), wherein the Plaintiffs included additional facts to the claim which were also in their personal capacity [6] Thereafter, on 9.3.2023, the Plaintiffs have again filed an application to amend the SOC which is Enclosure 20 by attaching the Proposed Amended Statement of Claim. The proposed amendments may be summarized as follows-a) The addition of the 1st Plaintiff in his capacity as the administrator of the estate of the Deceased; b) The addition of a cause of action on behalf of the estate of the Deceased; and c) The insertion of new reliefs on behalf of the estate of the Deceased. (Proposed Amendments) [7] The chronology of the case can be summarized in the following table-Subject Date Deceased’s date of demise 28.8.2016 Grant of Letters of Administration 11.5.2017 Writ of Summons and original Statement of Claim filed 27.8.2022 Application to Amend the Statement of Claim (The First Amendment) (Encl. 5) filed 28.11.2022

Order for Enclosure 5 (Encl. 11)

01.2023 Application to Amend the Statement of Claim (The Second Amendment) (Encl. 20) filed 9.3.2023 ANALYSIS AND FINDINGS [8] An application for amendment of a writ or pleadings is not a matter of a right of a party but is left to the judicial discretion of the Court depending on the circumstances of each case (See Raphael Pura v. Insas Bhd & Anor [2003] 1 MLJ 513). [9] It is an established principle that the courts have a wide discretion whether to allow an amendment or not (See Ismail bin Ibrahim v Sum Poh Development Sdn Bhd & Anor [1988] 3 MLJ 348). [10] Litigants should not come to Court and thereafter amend their pleadings as many times at their mercy. For the purpose of good governance, the Courts need to dispose cases justly, expeditiously and economically. As such, it is important for the Plaintiffs to provide a sufficient explanation as to why they have to amend the SOC for the second time after the period of approximately four (4) months. [11] Accordingly, Order 20 Rule 5 of ROC stipulates for the amendment of writ or pleadings with leave of the Court. It provides a discretion for the Court to allow leave to amend pleadings which must be exercised judicially (see Yamaha Motor Co. Ltd. v. Yamaha (M) Sdn. Bhd. & Ors [1982] 1 MLRA 417; [1983] 1 MLJ 213). Such amendments should not cause injustice to the other party. The three (3) basic questions to ask are-

whether the application was bona fide;

whether the prejudice caused to the other party could be compensated by costs; and

whether the amendments would not in effect turn the suit from one character into another and inconsistent character. [12] In Government of Malaysia v. Mohamed Amin Hassan [1984] 1 MLRA 793 (FC) it was held- “(1) What the respondent was trying to do was to add himself as a plaintiff and pursuing a claim peculiar to himself. That claim was distinct from the claim he instituted as administrator of the deceased's estate. This was not a case of altering a party suing in his representative capacity into his personal capacity. It was a case of adding a new party to the original suit. This was not permissible under any provision of the O 15 r 1 of the SCR, particularly when the period of limitation affecting the proposed plaintiff had expired. The court had no power to resuscitate an action which must fail in limine upon a plea of limitation. The court should not try to extend O 15 r 1 of the SCR beyond their natural and proper limit in order to supply omissions or defects nor strain them to the justice of an individual case.”. [13] Based on the case of Government of Malaysia v. Mohamed Amin Hassan (supra), this Court finds that Enclosure 20 seeks to add a new party from a dependency claim under Section 7 CLA into an estate claim under Section 8 CLA which is an entirely new cause of action which would turn this suit from one character (a claim made in personal capacity) into a suit of another (an Estate Claim) and is an inconsistent character. [14] It is also pertinent to note that the 1st Plaintiff had been granted the letters of administration on behalf of the Deceased’s estate on 11.5.2017, more than 5 years prior to the commencement of the Plaintiffs’ original action against the Defendants. The 1st Plaintiff’s reason for the delay is that he had “overlooked” the letters of administration and had only recently received the same from the “solicitors who handled the application for the letters of administration”. It is thus, inconceivable that the 1st Plaintiff elected not to retrieve the letters of administration for almost 5 years. [15] Relatively, there was no valid justification from the Plaintiffs to explain the delay despite the fact that the Letter of Administration of the Estates was granted over 5 years ago. It was also not explained as to why it was not even filed during the first amendment of the SOC. Further, Enclosure 20 was only filed after the limitation period has set in, of which the Plaintiff has failed to provide any reasonable explanation for the delay. [16] Accordingly, as the Deceased passed away on 28.8.2016, it is clear that the dependency claim is time barred as it must be brought within 3 years from the date of death as provided under section 7 of CLA. Section 7(5) CLA provides- “(5) Not more than one action shall be brought for and in respect of the same subject matter of complaint, and every such action shall be brought within three years after the death of the person deceased.”. [17] In this regard, the Supreme Court in Credit Corporation (M) Bhd v Fong Tak Sin [1991] 1 MLJ 409 held- “An application to add or substitute a new party to an action after the expiry of the limitation period should not be allowed and this is based on good and sound principles. The limitation law is promulgated for the primary object of discouraging plaintiffs from sleeping on their actions and more importantly to have definite end to litigation. The rationale of the limitation law should be appreciated and enforced by courts.” [18] It is trite law that, outside of the legal ambit provided by Order 20 Rule 5 ROC, amendments to pleadings which seek to add a new party to proceedings after the expiry of the limitation period are not allowed (see Government of Malaysia v Mohamed Amin Bin Hassan (supra). [19] As such, the Plaintiffs cannot bring a claim on behalf of the Deceased’s estate by way of the proposed amendments pursuant to Order 20 Rule 5 ROC after the expiry of the limitation period. [20] In addition, the Plaintiff’s claim for exemplary damages, loss of expectation of life and loss of earnings are prohibited by law. Section 8(2) of CLA provides that- “(2) Where a cause of action survives as aforesaid for the benefit of the estate of a deceased person, the damages recoverable for the benefit of the estate of that person-

shall not include any exemplary damages, any damages for bereavement made under subsection 7(3A), any damages for loss of expectation of life and any damages for loss of earnings in respect of any period after that person’s death “ (Emphasis Added) [21] It is clear from the statutory provision in section 8(2) CLA, that exemplary damages are not recoverable in an estate claim (See Hock Hua Bank Bhd v. Leong Yew Chin [1986] 1 MLRA 225) and in Koperal Zainal Mohd Ali & Ors v. Selvi Narayan & Anor [2021] 3 MLRA 424, the Federal Court had expressly held that Section 8(2) CLA 1956 acts as a complete bar to a claim for exemplary damages by a deceased’s estate. [22] Further, in the case of Datuk Seri Khalid Abu Bakar & Ors v. N Indra P Nallathamby (the administrator of the estate and dependent of Kugan a/l Ananthan, deceased) & Another Appeal [2014] 6 MLRA 489; [2015] 1 MLJ 353 it was held- “[28] The rationale behind the existence of ss 7 and 8 of the Civil Law Act is clearly set out by Salleh Abbas FJ (as he then was) in Sambu Pernas Construction & Anor v. Pitchakkaran Krishnan [1982] 1 MLRA 143; [1982] 1 MLJ 269; [1982] CLJ (Rep) 299 as follows: "At common law the death of a person gives rise to two principles. The first is that the death of any person is not a civil wrong. Therefore no action can be founded on it although death may result in pecuniary losses or damages to the deceased's spouse and children. Lord Ellenborough CJ in Baker v. Bolton [1808] 1 Camp 493 ruled that "in a civil court the death of a human being could not be complained of as an injury." The second principle was that when a person died any cause of action which was vested either in his favour or against him at the time of death was buried with him. In other words the cause of action did not survive the death: "actio personalis moritur cum persona". The first principle which regarded death as not giving rise to any cause of action was rectified by s 1 of the Fatal Accidents Acts 1846 to 1959, popularly known as Lord Campbell's Act whilst the second principle which dealt with the non-survival of the cause of action was rectified by the Law Reform (Miscellaneous Provisions) Act 1934. The provisions of these two UK statutes are now incorporated in ss 7 and 8 of our Civil Law Act 1956. Had it not been for ss 7 and 8 of the Civil Law Act it is clear that the plaintiff could not have the right to bring the suit, and having acted under these sections and in particular s 7, his case must stand and fall on the basis of these sections. [29] Sections 7 and 8 of the Civil Law Act thus give rise to two respective causes of action. Section 7 relates to what is known as "the dependency claim" where the statutorily recognised dependants of the deceased can launch a claim for the loss of pecuniary benefits which would have been provided by the deceased for the support of his dependants had he not died. Section 8 relates to what is known as "the estate claim" where all causes of action, save and except what are prohibited therein, vested in the deceased prior to his death shall be survived by his personal representatives of the estate. Whatever is claimed will be for the benefit of the estate.”. [23] It was also observed that an award for mental pain and suffering for the dependants are not allowed under section 7 CLA. In Ketua Polis Negara & Ors v Nurasmira Maulat bt Jaafar & Ors (minors bringing the action through their legal mother and next friend Abra bt Sahul Hamid) and other appeals [2018] 3 MLJ 184 (FC) it was held- “[96] As s 7 of the CLA is a provision enabling the specified dependants of a deceased person who came by his death due to the wrongful act, neglect or default of another to claim for damages in their own right to compensate them for loss of support due to such death, a claim for the pain and suffering of the specified dependants (or even of the deceased person himself) is certainly beyond the purview of the section. [100] The proviso to subsection 7(3) of the CLA does not allow damages to be awarded to a parent for being deprived of the services of a child or to a husband for having been deprived of the services or society of his wife. [101] For loss other than pecuniary loss, the only damages that s 7 of the CLA allows to be claimed are damages for bereavement. However, such damages can only be awarded to the spouse of a deceased person or, if he was a minor and never married, his parents. The sum that can be awarded as damages for bereavement is RM10,000.00, subject to the power of the Yang di-Pertuan Agong to vary such sum.”. [24] Enclosure 20 should not be a ‘tactical manoeuvre’ (see Hong Leong Finance Bhd v. Low Thiam Hoe & Another Appeal [2016] 3 MLRA 81; [2016] 1 MLJ 301; [2015] 8 CLJ 1). This Court finds that Enclosure 20 is not made bona fide and is a tactical manoeuvre to defeat the period of limitation and the Plaintiffs are attempting to insert a new party into the proceedings outside of the limitation period. CONCLUSION [25] For the foregoing reasons, Enclosure 20 is dismissed with costs subject to allocatur’s fee. (YA DR. SUZANA BINTI MUHAMAD SAID) Judicial Commissioner of the High Court NCVC 1 Kuala Lumpur. Date: 31 December 2023 COUNSELS For the Plaintiffs Messrs Goban & Co. L12-12, Menara Sentral Vista 150 Jalan Sultan Abdul Samad 50470 Kuala Lumpur. For the 1st, 3rd and 4th Defendants Messrs Shean Delamore & Co. Tingkat 7, Wisma Hamzah-kwong Hing No. 1, Lorong Ampang 50100 Kuala Lumpur. For the 2nd Defendant Messrs Jayadeep Hari & Jamil Suite 2.03, 2nd Floor, Block A No. 45, Jalan Medan Setia Satu Plaza Damansara, Bukit Damansara 50490 Kuala Lumpur For the 5th Defendant Messrs. Asbir Hira Singh & Co. Unit 25-15, Block A Menara UOA Bangsar No. 5, Jalan Bangsar Utama 1 59000 Kuala Lumpur. For the 6th and 7th Defendants Messrs. Azim Tunku Farik & Wong Unit 5.03 Tingkat 5 Wisma Badan Peguam Malaysia No. 2, Lebuh Pasar 50050 Kuala Lumpur.