Punitha A/P Padathaly v Salam Alliance Sdn Bhd (BA-23NCvC-40-06/2024)

1.

DR. MOHD IQBAL BIN MOHD ARBA … DEFENDANTS GROUNDS OF JUDGMENT (Enclosure 12 and 14)

These Grounds of Judgment concern two separate applications filed by the Defendants under Order 18 rule 19(1)(a), (b), and

of the Rules of Court 2012 (“ROC”). Although filed independently, both applications seek substantially the same result-namely that the Plaintiff’s action be struck out at the threshold. 25/11/2025 12:23:34

Enclosure 14 is the application by the 2nd Defendant (“D2”), a medical practitioner who authored the psychiatric referral letter forming the foundation of the Plaintiff’s complaint. Enclosure 15 is the application by the 1st Defendant (“D1”), the entity operating Klinik As-Salam, where D2 was practising at the material time.

The Plaintiff opposes both applications. She contends that her Statement of Claim raises substantial and serious issues of medical negligence, breach of confidentiality, misuse of medical information, and vicarious liability that merit full adjudication through a proper trial.

After careful consideration of the affidavits, submissions, and authorities, I find that neither Defendant has met the high threshold required to justify striking out the Plaintiff’s action. The applications are dismissed for the detailed reasons which follow.

On 22 June 2018, the Plaintiff was brought by family members to Klinik As-Salam, operated by D1; after experiencing emotional distress following the ingestion of medication. She was examined not by the Second Defendant (“D2”) but by another doctor, Dr Nik Aiman. No psychiatric diagnosis was made at that time; only a general recommendation for follow-up was recorded.

On 28 June 2018, the 2nd Defendant issued a psychiatric referral letter purporting to diagnose the Plaintiff with “bipolar disorder” and recommending psychiatric evaluation.

Central to the Plaintiff’s case is her allegation that this letter was written without any consultation, examination, or clinical assessment, and without her knowledge or consent. She pleads that she did not attend the clinic on that date, and that the 2nd Defendant had no basis for issuing such a medical opinion.

The Plaintiff further alleges that the referral letter was improperly disclosed to her then-husband, rather than being given to her personally or in accordance with standard medical procedures. The Plaintiff contends that this act constitutes a serious breach of medical ethics and confidentiality.

According to the Plaintiff, she only became aware of the existence of the referral letter at a much later stage, when her then-husband produced it during custody proceedings in the family court. She asserts that the letter was used to challenge her fitness as a parent and had a detrimental effect on the outcome of those proceedings.

The Plaintiff says that prior to its use in court, she had no knowledge that such a letter existed or that it had been passed to her husband. She alleges that the act was “concealed” from her, whether deliberately or otherwise.

The Plaintiff asserts that as a direct consequence of the wrongful issuance and disclosure of the referral letter, she suffered emotional distress, reputational damage, and adverse consequences in the custody proceedings for her children.

Her claim is framed in tort, alleging:

professional negligence by D2;

(ii) breach of confidentiality;

(iii) misuse of medical information;

(iv) vicarious liability of D1 as the clinic operator. C. PROCEDURAL HISTORY

The Plaintiff initiated this civil action by filing a Writ of Summons on 28 June 2024 at approximately 12:10 a.m. The timing is significant because the Defendants contend that the six-year limitation period expired on 27 June 2024.

The Plaintiff’s Statement of Claim (“SOC”), filed in due course, sets out the allegations summarised above.

D2 filed Enclosure 14 seeking to strike out the action for being time-barred and for disclosing no reasonable cause of action. D1 subsequently filed Enclosure 15, advancing similar arguments but also asserting that it cannot be held vicariously liable for D2’s conduct.

The Plaintiff filed affidavits in reply, contesting the limitation argument and disputing the Defendants’ characterisation of the facts.

Both applications were heard together due to the overlap in issues, although separate affidavits and submissions were filed.

Based on the pleadings and submissions, the following issues arise for determination:

Whether the Plaintiff’s claim is time-barred under Section 6(1)(a) of the Limitation Act 1953.

The Defendants argue that the Plaintiff’s cause of action accrued on 28 June 2018, and thus the six-year limitation period expired on 27 June 2024. The Plaintiff filed her Writ about ten minutes into 28 June 2024, rendering it out of time by one day.

The Plaintiff disputes this, arguing that Section 29 of the Limitation Act applies because the wrongful act was “concealed” from her. She contends that the limitation period should commence from the date she discovered the referral letter during custody proceedings.

Whether the SOC discloses a reasonable cause of action under O.18 r.19(1)(a).

This requires consideration of whether, on the face of the SOC, the Plaintiff has pleaded facts which, if proven, would entitle her to relief. The Defendants contend that she has not.

Whether the claim is frivolous, vexatious, or an abuse of process under O.18 r.19(1)(b) and (d).

The Defendants argue that the claim lacks merit and is brought with improper motives.

Whether the action against D1 should be struck out for lack of vicarious liability.

D1 contends that D2 was acting independently and that no employer–employee or principal-agent relationship existed.

Whether the applications should be refused because the matters raise triable issues.

It is trite that if a pleading raises even one bona fide triable issue, a court must not strike it out. This principle, articulated in Bandar Builder Sdn Bhd v UMBC [1993] 3 MLJ 36, underpins the Court’s determination. E. STANDARD FOR STRIKING OUT UNDER ORDER 18 RULE 19

Before moving to substantive analysis, it is necessary to restate briefly the legal principles governing striking-out applications.

The jurisdiction is draconian and must be exercised sparingly. The Court must be satisfied that the claim is obviously unsustainable, plainly hopeless, or beyond salvation, even if all pleaded facts were assumed true.

Disputed facts, matters requiring evidence, or issues involving evaluative judgment are inappropriate for summary disposal.

With this framework in mind, I turn now to the submissions of the parties. F. SUMMARY OF THE 2ND DEFENDANT’S SUBMISSIONS

Limitation - Action Filed Out of Time

D2 submits that the Plaintiff’s cause of action accrued on 28 June 2018, the date he issued the psychiatric referral letter.

It is emphasised that the Plaintiff’s Writ was filed on 28 June 2024 at approximately 12:10 a.m., thus one day late, rendering the action time-barred.

D2 relies on the strict approach adopted in:  Vista Specialist Eye Centre v Loo Son Yong [2016] 5 MLJ 832  Obata Ambak Holdings Sdn Bhd v Prema Bonanza Sdn Bhd [2022] 9 MLJ 212  Muhammad Solleh Saarani v Norruhadi Omar [2010] 9 MLJ 603 to argue that even a one-day delay is fatal and the Court has no discretion to extend time.

According to D2, the Plaintiff’s attempt to invoke Section 29 (fraud or concealment) is misconceived. He maintains that the referral letter was properly recorded in clinic notes, and the Plaintiff could have obtained it earlier with reasonable diligence. D2 denies concealing the document and contends that the Plaintiff’s reliance on late discovery is unsustainable.

No Breach of Duty or Negligence

D2 denies the Plaintiff’s assertion that the referral letter amounted to a negligent medical act. He submits that:  The letter was not a diagnosis, but merely a referral note.  It was prepared based on existing clinical notes entered by another doctor, Dr. Nik Aiman.  It was issued upon the request of the Plaintiff’s family, who sought psychiatric evaluation for her.

D2 argues that the Plaintiff’s allegations amount to mere dissatisfaction with medical opinion, which is not actionable. He cites medical-ethics principles permitting a doctor to issue a referral based on available information.

D2 further submits that any subsequent use of the referral letter in custody proceedings is beyond his knowledge and control, and thus causation is not established.

No Concealment — Section 29 Inapplicable

D2’s position is that disclosure of the letter to the Plaintiff’s husband does not constitute concealment. He argues that:  The referral letter was part of the clinic’s record;  The Plaintiff could have requested her medical records at any time;  There was no deliberate withholding or fraudulent act.

As such, Section 29 cannot apply, and the limitation period must be calculated strictly.

Suit Is Frivolous and an Abuse of Process

D2 contends that the Plaintiff’s claim is baseless, speculative, and designed to harass him. He argues that the absence of a clear causal link to the Plaintiff’s alleged harm renders the suit frivolous.

Given these reasons, he prays for the statement of claim to be struck out under O.18 r.19(1)(a), (b), and (d). G. SUMMARY OF THE 1ST DEFENDANT’S SUBMISSIONS

D1 Was Not Responsible for Issuing the Letter

The 1st Defendant (“D1”), Salam Alliance Sdn Bhd, submits that it cannot be held liable for the acts of the 2nd Defendant. D1 maintains that:  It only manages the administrative aspects of the clinic;  It does not supervise clinical decisions;  The issuance of the referral letter was the sole act of D2, performed in his professional capacity

D1 argues that the Plaintiff’s Statement of Claim does not plead specific facts establishing a relationship of employment, control, supervision, or agency between D1 and D2.

Therefore, the claim of vicarious liability is, in D1’s view, wholly unsustainable.

No Reasonable Cause of Action

D1 submits that the Plaintiff has failed to plead any direct wrongdoing by D1. There is no allegation that:  D1 issued the referral letter,  D1 authorised it,  D1 knew of it, or  D1 disclosed it.

D1’s role, as pleaded, is limited to administrative management. This, it argues, is insufficient to impose liability for professional acts carried out by an independently licensed doctor.

Relying on Sime Darby Bhd & Ors v Dato' Seri Ahmad Zubair @ Ahmad Zubir bin Hj Murshid & Ors (Tun Musa Hitam & Ors, third parties) [2012] 9 MLJ 464, D1 asserts that a claim must be struck out where it is “obviously unsustainable.”

Late Filing and Procedural Non-Compliance

D1 supports D2’s arguments on limitation, emphasising that the Plaintiff’s case is time-barred.

D1 also points to the late service of the Writ, more than one month after filing, which it argues reflects a lack of bona fides.

D1 submits that cumulative procedural non-compliance warrants striking out under O.18 r.19(1)(d) as an abuse of process.

Suit Is Vexatious

D1 argues that the Plaintiff is attempting to create corporate liability where none exists, solely to “drag the clinic into a private dispute” between the Plaintiff and her former husband.

The claim is said to be vexatious and oppressive.

Limitation — Section 29 Applies

The Plaintiff contends that Section 29 of the Limitation Act 1953 postpones the start of the limitation period where material facts have been concealed.

She argues that:  She never knew about the referral letter;  It was never given to her;  It was secretly handed to her husband;  She only discovered it during custody proceedings

The Plaintiff contends that D2’s action constitutes concealment, since the letter was about her but given to another person without consent.

She relies on Lim Yoke Kong v Sivapiran [1992] 2 MLJ 571, where the court held that concealment postpones limitation until discovery.

She submits that whether concealment occurred is a triable issue, rendering striking-out inappropriate.

Reasonable Cause of Action — Negligence and Confidentiality

The Plaintiff emphasises that she has pleaded:  failure to examine  issuing a psychiatric diagnosis without consultation  wrongful disclosure to her husband  breach of confidentiality under MMC guidelines  harm caused in custody proceedings

These, she argues, clearly constitute a reasonable cause of action in tort.

She cites MMC’s Code of Professional Conduct and Guidelines on Confidentiality, which require explicit patient consent before disclosure to a third party. Consent from a family member is not consent from the patient.

The Plaintiff contends that whether D2 was practising as part of D1’s clinic is a question of fact requiring discovery and evidence.

She submits that medical practice structures often involve shared arrangements, and the nature of these relationships cannot be conclusively determined at this preliminary stage.

As such, D1’s vicarious liability cannot be summarily dismissed.

Suit Is Not Frivolous or Vexatious

The Plaintiff asserts that allegations of medical negligence and confidentiality breaches are serious matters.

There is no basis to portray her claim as frivolous or an abuse of process.

She submits that the High Court should not pre-emptively deny her right to a full trial when multiple disputed facts exist.

It is trite that the general limitation period for tortious actions is governed by Section 6(1)(a) of the Limitation Act 1953, which prescribes a six-year period commencing on the date the cause of action “accrued.”

In a negligence action, a cause of action ordinarily accrues when the wrongful act or omission occurs, not when the damage is discovered. This principle was reaffirmed in Vista Specialist Eye Centre v Loo Son Yong [2016] 5 MLJ 832, which binds this Court.

However, Section 29 introduces an exception where the right of action has been fraudulently concealed, or where “any fact relevant to the right of action” has been deliberately withheld. In such circumstances, the limitation period does not begin until the plaintiff has discovered, or could reasonably have discovered, the concealed facts.

The relevant question is therefore not merely when the referral letter was written, but whether the Plaintiff knew, or reasonably could have known, of the existence of the letter before the date she says she discovered it.

The Plaintiff avers that she was wholly unaware that D2 had written the referral letter dated 28 June 2018. She asserts she did not attend the clinic on that date, received no treatment, and was never given a copy of the letter. She alleges that the letter was instead handed directly to her husband.

On the affidavit before me, it is undisputed that the Plaintiff did not receive the letter in 2018, and that it was her husband who produced it in custody proceedings years later. This is the moment the Plaintiff states she first became aware of the letter.

D2 contends that the Plaintiff could have requested her medical records earlier and that the letter was not concealed. The Plaintiff argues that she had no reason to request clinical records for a date when she did not attend the clinic at all.

Whether the 2nd Defendant’s act of giving the letter to the husband amounted to “concealment” within the meaning of Section 29 is a question of fact. The Court cannot, at this interlocutory stage, simply assume that the Plaintiff ought to have discovered the letter earlier.

In Lim Yoke Kong v Sivapiran (supra), the Court held that concealment includes circumstances where a defendant, knowing of the plaintiff’s lack of knowledge, fails to disclose material facts. The existence of the referral letter was plainly a material fact relevant to the Plaintiff’s potential cause of action.

The limitation issue here is deeply fact-sensitive. It requires determination of:

Whether the Plaintiff had actual knowledge of the letter in 2018;

(ii) Whether she could reasonably have discovered it earlier;

(iii) Whether D2’s conduct in providing the letter to the husband constituted “concealment”;

(iv) When the Plaintiff first became aware of the letter during custody proceedings.

Each of these questions requires evidence, cross-examination, and judicial evaluation of credibility-not affidavit assertion.

The Federal Court in Bandar Builder Sdn Bhd v UMBC (supra) cautioned against resolving fact-intensive disputes at the striking-out stage. That principle applies squarely here.

At this preliminary stage, I am not satisfied that the Defendants have shown that the action is plainly time-barred. The Plaintiff’s reliance on Section 29 cannot be dismissed as unsustainable. Accordingly, the limitation argument is unsuitable for summary disposal.

The issue shall proceed to trial where evidence may be properly tested.

The Plaintiff alleges that:  D2 issued a psychiatric referral letter without examination;  No consultation took place;  No consent was obtained;  The letter was disclosed to her husband without her authorisation;  She suffered harm in custody proceedings as a result.

These allegations, if proven, form a coherent cause of action in:

negligence,

(ii) breach of duty of care,

(iii) breach of confidentiality, and

(iv) wrongful disclosure of medical information.

The test under O.18 r.19(1)(a) is not whether the Plaintiff will ultimately succeed, but whether the pleading discloses a cause of action.

The Plaintiff pleads that she was a patient of the clinic and that D2 was a medical practitioner at the material time. On these pleaded facts, a doctor–patient relationship, and therefore a duty of care, is prima facie established.

Whether the duty was breached by failing to examine the Plaintiff before issuing a psychiatric referral letter requires medical evidence. It is plainly unsuitable for disposal at interlocutory stage. C. Breach of Confidentiality

Medical confidentiality is a core principle of Malaysian medical law and ethics. The MMC Code of Professional Conduct and MMC Confidentiality Guidelines clearly state that:  A doctor must obtain explicit consent before disclosing patient information;  Disclosure to family members is prohibited unless expressly authorised or clinically necessary.

The Plaintiff alleges that D2 disclosed sensitive psychiatric information to her husband without consent. This, if proven, constitutes a breach of legal and ethical duty.

Whether the husband’s request constituted lawful “authorisation” is again a factual issue unsuitable for striking out.

The Defendants submit that the letter was a mere referral note, not a diagnosis. However, the content of the letter is not before the Court at this stage. Even a referral note containing psychiatric implications may be sensitive and confidential.

The Plaintiff alleges that the letter portrayed her as psychiatrically unstable and was later used to challenge her parental fitness. These matters cannot be dismissed without evidence.

The Court cannot, at the striking-out stage, make findings on intention, context, or appropriateness of medical communication.

The Defendants argue that any use of the letter in family court was beyond their control.

However, in tort, the question is whether harm was a reasonably foreseeable consequence. Whether harm was remote or causally connected is an issue for trial.

The Plaintiff has pleaded recognisable damage: reputational injury, emotional harm, and detrimental impact in custody proceedings. These suffice to maintain a cause of action.

The Statement of Claim clearly discloses a triable cause of action. Whether the claim will ultimately succeed is a matter for trial, not summary disposal. Issue 3: Whether the Claim Is Frivolous, Vexatious, or an Abuse of Process

The Defendants’ assertion that the suit is frivolous is not borne out by the pleadings. Allegations of medical negligence and breach of confidentiality are inherently serious.

There is no evidence of improper motive, collateral purpose, or mala fides on the part of the Plaintiff. She initiated this action after discovering the referral letter in court proceedings.

The late service of the Writ, although irregular, does not demonstrate prejudice or ulterior motive.

The threshold for abuse of process is high and requires clear evidence. No such evidence exists here. J. ISSUE 4: WHETHER THE CLAIM AGAINST D1 SHOULD BE

Vicarious liability arises where a defendant is legally responsible for the tortious acts of another person by virtue of a relationship of control, supervision, or integration. Traditionally this relationship was employer-employee, but modern jurisprudence recognises a wider range of relationships.

The UK Supreme Court in Various Claimants v Barclays Bank plc [2020] UKSC 13 affirmed that liability may arise even where the tortfeasor is not an employee, provided the tortfeasor’s work is sufficiently integrated into the defendant’s business.

Malaysian courts have followed similar principles, focusing on:  the degree of control exercised,  the nature of the arrangement,  who benefits from the activity,  whether the work is integral to the defendant’s undertaking.

Whether such a relationship exists is fact-sensitive, often requiring examination of contracts, clinic operational structures, payment arrangements, and testimony.

D1 asserts that:  it is merely an administrative entity;  it exercised no control over D2’s clinical decisions;  D2 acted independently.

These assertions are contested. The Plaintiff pleads that:  the clinic is operated by D1;  D2 practised under the clinic’s structure;  patients attending the clinic would reasonably perceive D1 as responsible for the services rendered.

It is common in Malaysian general-practice clinics for doctors to operate under hybrid arrangements-locum, contract-for-services, partnership, revenue-sharing, or employment. The Court cannot assume the nature of that relationship without evidence. C. Pleadings Are Sufficient to Raise a Triable Issue

The Plaintiff is only required at the pleading stage to allege a factual nexus. She has pleaded that:  D2 was practising at the 1st Defendant’s clinic;  D1 operated and managed the clinic;  the acts occurred within the scope of that arrangement.

These allegations meet the minimum threshold to establish a prima facie claim of vicarious liability.

Whether the relationship was one of employment, agency, supervision, or commercial integration must be determined at trial, not at a preliminary striking-out stage.

To determine D1’s liability, the Court must examine:  any written contract between D1 and D2;  remuneration or fee structures;  whether D1 held itself out as responsible for clinical practice;  how patients, including the Plaintiff, perceived the clinic’s responsibility.

These matters cannot be conclusively resolved through affidavits alone.

Striking out now would pre-emptively deprive the Plaintiff of the opportunity to establish these facts.

The Plaintiff’s pleadings disclose a tenable basis for vicarious liability.

The issue is quintessentially one requiring viva voce evidence.

Therefore, the claim against D1 should not be struck out. K. ISSUE 5: WHETHER THE SUIT IS FRIVOLOUS, VEXATIOUS,

The categories of abuse of process are not closed, but typically involve improper motives, repeated litigation, intention to harass, or clear absence of legal foundation.

Courts must exercise caution before branding a litigant’s claim as frivolous or vexatious. Such a finding carries serious consequences and should only be made in the clearest cases.

The Plaintiff alleges serious wrongdoing: issuing a psychiatric referral letter without examination, improper disclosure, and breach of confidentiality.

These allegations raise legitimate concerns regarding:  professional ethics,  patient autonomy,  medical confidentiality,  misuse of sensitive information.

Such claims are neither trivial nor brought lightly.

The Defendants’ position is that the referral letter was innocuous and properly issued. This, however, is a matter for trial, not a basis for striking out. C. Procedural Irregularities Do Not Establish Abuse

D1 relies on late service of the Writ to argue abuse of process.

While service was not prompt, the Defendants were eventually served, and no prejudice has been demonstrated.

Defects in service may be cured; they do not justify depriving a litigant of her right to a trial unless bad faith is clearly established. D. Conclusion on Abuse of Process

I find no basis to characterise the Plaintiff’s action as frivolous, vexatious, or an abuse of process.

The seriousness of the allegations and the existence of disputed facts strongly support allowing the matter to proceed.

In striking-out applications, the Court must consider the claim as a whole, not isolate individual paragraphs or causes of action.

The Plaintiff raises several core factual disputes:  Did D2 examine the Plaintiff before issuing the referral letter?  Did the Plaintiff consent to the letter?  Why was the letter given to her husband?  When did she first discover it?  What was D1’s relationship with D2?  Was confidentiality breached?  Did the letter cause harm in custody proceedings?

These questions cannot be answered based on affidavits alone.

Each requires oral evidence, professional testimony (possibly expert medical evidence), and cross-examination.

Where factual disputes are central, the rule in Bandar Builder (supra) requires the Court to allow the case to proceed to trial.

Having considered all materials, I find:

Limitation:

The Plaintiff has raised a bona fide triable issue under Section The limitation defence cannot be resolved summarily.

(ii) Reasonable Cause of Action: The Statement of Claim discloses actionable allegations of negligence, breach of confidentiality, and wrongful disclosure.

(iii) Vicarious Liability: The nature of D1’s relationship with D2 is a factual matter unsuitable for striking out.

(iv) Abuse of Process: No evidence supports the assertion that the Plaintiff’s suit is frivolous or vexatious.

These matters, individually and collectively, justify the refusal of both striking-out applications.

For the reasons stated in this judgment, the Court makes the following orders: i) Enclosure 14 (2nd Defendant’s application) is dismissed. ii) Enclosure 15 (1st Defendant’s application) is dismissed. iii) Costs of both applications shall be costs in the cause. iv) The matter shall proceed to full trial before this Court. Dated this 24th November 2025 -sgd- ………………………………….. Datin Asmah binti Musa Pesuruhjaya Kehakiman Mahkamah Tinggi Malaya Mahkamah Tinggi Shah Alam Counsel for Plaintiff : Mr. Harjit Singh Sandhu Tetuan Harjit Sandhu, Wan & Associates Counsel for Defendant : Ms. Amos Siew Yih Jhien (Mohd Ashraf bin Ramli and Nicole Bor Wen Shen with her) Tetuan Azim, Tunku Farik & Wong