Selve a/p R. Renganathen v 1. ) Sowbhagyavati a/p Renganathen (BA-22NCvC-6-01/2020)

ARA DAMANSARA MEDICAL CENTRE SDN BHD … DEFENDANTS JUDGMENT [1] The following is the Court’s decision and the end of a full trial between the parties. In total there were only five (5) witnesses called, two (2) by the Plaintiff, one (1) by the 1st Defendant, one (1) by the 2nd Defendant and two (2) by the 3rd Defendant. 17/07/2023 16:01:59 BA-22NCvC-6-01/2020 Kand. 139 Summary of the Plaintiff’s case [2] Circa 2016, one of the Deceased’s beneficiary, Ramayee a/p Renganathan (No. K/P: 620123-10-5046) (“Ramayee”) filed a civil suit against the 1st Defendant and her husband Jhai Muneearasan a/l Solamuthu (No.K/P: 630630-10-5699) (“Jhai Muneearasan”) in Shah Alam High Court (Case number: BA-22NCVC-452-08/2016). In the civil action, the 1st Defendant tried to admit as evidence the Deceased, Renganathen a/l Ramasamy [No.K/P: 370607-10-5107] Medical Report (“Laporan Perubatan”) dated 23 April 2015 which was prepared by the 2nd Defendant. The Medical Report had been stamped by Lembaga Hasil Dalam Negeri. [3] The authenticity of the Medical Report was challenged by the Plaintiff. The Plaintiff further corresponded in writing with Pusat Perubatan Subang Jaya and the 3rd Defendant via emails dated 17.08.2017 and 21.08.2017. [4] Based on the correspondence via emails, the 3rd Defendant confirmed that the Deceased was not examined nor treated by any of its doctor/s on 5th February 2015 as stated in the Medical Report. [5] The Plaintiff then lodged a police report on the mistake in the Medical Report. This issue again came up in Shah Alam High Court (Case number: BA-22NCVC-452-08/2016: “the 2016 Suit”) wherein the 3rd Defendant’s employee named Hamidi was subpoenaed by the Court to give evidence pertaining the matter. [6] However, before Encik Hamidi called to give evidence, R. Prabhakaran, counsel for the 1st Defendant herein and Jhai Muneearasan at that time, objected. He informed the Court they will not use the Medical Report in their case. He also informed the Court, in cases where there would be any issue or contradiction in the Medical Report, the doctor who prepared the report shall be answerable to it i.e. the 2nd Defendant in this present suit. This led to Suit 2016 being withdrawn with liberty to file afresh by Ramayee. [7] Upon obtaining the Letter of Administration, the Plaintiff corresponded with the 1st Defendant in writing to inquire about the Medical Report. Among the questions asked was, the objective in requesting the report and to obtain a copy of the case’s documents. The said communication in writing happened via emails and letters dated 18.06.2019, 03.047.2019, 16.07.2019 and 23.07.2019. [8] Based on the written correspondence with the 1st Defendant, the Plaintiff did not obtain answers for all the questions raised pertaining the Medical Report. The 1st Defendant instead tried to change the story and avoided from answering the questions. [9] Thereafter, the Plaintiff corresponded in writing with Pusat Perubatan Subang Jaya and the 3rd Defendant via emails wherein the Plaintiff found out that the Medical Report was obtained by the 1st Defendant from the 2nd Defendant without filing in an “Application for Medical Report and Consent for Release of Information”. No payment was made by the 2nd Defendant to the 3rd Defendant’s hospital administration department for the report. [11] The Plaintiff contends that the Medical Report consists of untrue and/or misleading and/or improper statements i.e. a) The Deceased was alert and rational on 09.10.2014 and on 05.02.2015. b) The Deceased was checked and treated in Outpatient Department on 05.02.2015. c) Blood test was conducted on the Deceased on 05.02.2015. [12] The Plaintiff alleges that the 2nd Defendant and/or 3rd Defendant had breached the implied terms obligation, breached the assignment of statutory duties including the Data Protection Act 2010 (PDPA) and the Medical Act 1971; and also breached its fiduciary duty to keep the confidentiality of the Deceased and/or his estates. [13] In such circumstances, the Plaintiff has to ensure that the Medical Report containing false statements is withdrawn from any circulation and never to be used by the 1st Defendant or any parties for any reasons and purposes. This led to the fling of the present Suit. Summary of the Plaintiff’s submission [14] The Plaintiff vide their written submissions dated 24 March 2023 contended as follows:

that the Medical Report dated 23 April 2015 contained statements which were untrue and/or misleading and/or improper;

(ii) that the 2nd and 3rd Defendants had breached their contractual obligation to the Deceased in the giving and issuance of the aforesaid Medical Report. According to the Plaintiff both the Defendants had a contractual obligation to ensure that the Medical Report contained truthful statements in relation to the Deceased. Both the Defendants did not deny the existence of the contractual obligation;

(iii) the 2nd and 3rd Defendant had also breached their fiduciary duty to the Deceased by issuing and keeping the aforesaid Medical Report, the contents of which was not true;

(iv) the 2nd and 3rd Defendant had also breached their statutory duty to ensure that the Medical Report contained truthful statements in relation to the Deceased (see Guideline of the Malaysia Medical Council on Medical Records and Medical Reports). Such failure prejudices the statutory rights of the Deceased’s estate;

the 2nd and 3rd Defendant had failed to prove that the errors in the Medical Report were typographical errors;

(vi) the 2nd and 3rd Defendant had failed to prove that the Medical Report dated 5 September 2017 was prepared based on the Plaintiff’s request; and

(vii) in light of the 1st Defendant’s submission of a ‘no case to answer’, this Court must assume that all the evidences led by the Plaintiff are correct. [15] Premised on the above, the Plaintiff therefore prays for the orders as sought in their Writ and Statement of Claim. The 1st Defendant’s Case [16] According to the 1st Defendant’s position, she was urged by the Plaintiff and the other beneficiaries of the estate to obtain a Medical Report in relation to the treatment received by the Deceased including the list of prescribed medication. [17] The 2nd Defendant duly supplied the Medical Report on 23 April

The said report was then duly stamped on 22 May 2015 by Plaintiff who took the position that it must be stamped. [18] The Plaintiff then included the said Medical Report in the Bundle of Documents filed in Shah Alam High Court Suit No. BA-22NCVC- 452-08/2016 (“the 1st Suit”). At no point in time was the Medical Report used in the 1st Suit. The Plaintiff thereafter, withdrew the 1st Suit after trial had commenced. [19] The Plaintiff and the rest of the beneficiaries has full knowledge of the contents of the Medical Report. The 1st Defendant took the position that she could not confirm the contents of the Medical Report as this can only be done by the 2nd Defendant who had examined and treated the Deceased. If there was any mistakes in the report, the same can be rectified by the 2nd Defendant. [20] It is the 1st Defendant’s stand that she did not derive any benefit from the Medical Report nor did she exploit the Medical Report for purposes of obtaining any profit. In this regard, the Plaintiff had not stated or shown the damage, hardship and/or losses suffered as a result of the said Medical Report, [21] The Plaintiff’s claim is therefore frivolous, malicious and conjured to embarrass the 1st Defendant. [22] The 1st Defendant at the end of the day elected to put forward a submission of ‘No case to answer’ based on the following:

the Plaintiff did show or prove that she had a proper or tangible interest to seek the declaration sought for;

(ii) did not show as to how the alleged error in the Medical Report dated 23 April 2015 has affected and/or infringed the rights of the Deceased and/or interest or caused losses and/or damage to the beneficiaries of the estate;

(iii) did not plead or led any evidence as the alleged error in the Medical Report dated 23 April 2015 has affected and/or infringed the rights of the Deceased and/or interest or caused losses and/or damage to the beneficiaries of the estate;

(iv) did not list this claim as an asset and/or recoverable claim in the estate’s list of assets;

admitted that her claim against the 1st Defendant is speculative as she was worried that the 1st Defendant may use the Medical Report to her advantages; and

(vi) had agreed that the 1st Defendant was not involved in the preparation of the said Medical Report. The 2nd Defendant’s Case [23] According to the 2nd Defendant, he is a Consultant Cardiologist practicing at Ara Damansara Medical Centre, the 3rd Defendant’s Hosputal (“the Hospital’). [24] The Deceased was a longstanding patient of the 2nd Defendant. The 2nd Defendant had issued 3 medical reports relating to the Deceased which are dated 7th May 2013, 23rd April 2015 and 5th September 2017 respectively. [25] Following the demise of the Deceased on 25th February 2015, the 2nd Defendant had issued the 2015 Report upon the request of the 1st Defendant who is the Deceased’s daughter. [26] The 2nd Defendant had issued the Medical Report dated 5 September 2017 (“2017 Report”) following a request made at his clinic, by the Plaintiff. [27] Following the commencement of the current suit, the 2nd Defendant had reviewed the medical records and the 2015 Report and notes that the report had contained following typographical errors: a. “Outpatient Department” should correctly be “in the ward”. b. The date “05/02/2015” should correctly be “15/02/2015”, and c. The “blood test done” referred to in paragraph 4 of the 2015 report were blood tests done at Subang Jaya Medical Centre on 13th February 2015, prior to the Deceased’s transfer to the 3rd Defendant Hospital on 15th February 2015. [28] The 2nd Defendant had pleaded in his Defence and gave evidence before the Court that the errors were genuinely unintentional errors and that the 2nd Defendant is ready and willing to rectify the clerical and typographical errors in his report. Nevertheless, the Plaintiff still proceeded with her claim. The 3rd Defendant’s Case [29] The Plaintiff commenced this suit complaining that the Medical Report dated 23.04.2015 concerning the Deceased (“2015 Report” at Bundle B/22) contains 3 alleged mistakes, namely :-

that the Deceased was “alert and rational” on 09.10.2014 and 05.02.2015;

that the Deceased was seen in the “Outpatient Department” on 05.02.2015; and

that a blood test was done on the Deceased on 05.02.2015. [30] The Plaintiff is suing as the personal representative of the Deceased’s estate and there is no allegation of medical negligence on the part of the doctor or hospital. [31] The Statement of Claim is devoid of any particulars as to the Plaintiff’s cause of action against the 3rd Defendant (i.e. the hospital- “ADMC”) and / or what loss or damage has the Plaintiff suffered as a result of the alleged mistakes in the 2015 Report. In fact, the Plaintiff admitted on oath several times that she and the estate has suffered no loss as a result of the 2015 Report. [32] In response to the Plaintiff’s complaint, the 2nd Defendant, being the author of the 2015 Report has admitted to making the following typographical mistakes in the 2015 Report, namely:

that “05/02/2015” should have been “15/02/2015” and

that “Outpatient Department” should have been “in the ward”. [33] The 2nd Defendant also explained that the Deceased was actually seen at the Outpatient Department on 15.02.2015 and the Deceased was observed to be alert and rational (see Q&A 6 WSD1B). Further, the blood test referred to in the 2015 Report had been carried out at Subang Jaya Medical Centre before the Deceased transferred to ADMC (see Q&A 8 WSD1A). These were not challenged during trial. [34] In fact, prior to the Writ being filed, the 2nd Defendant had issued a report dated 05.09.2017 (“2017 Report”) containing the correct information (see Bundle C/2) and went on to affirm an affidavit confirming that the 2017 Report was requested for by the Plaintiff and was provided to the Plaintiff before the Writ was filed (see items 7 and 11 Encl.20) [35] Prior to this suit and in response to the Plaintiff’s request regarding the consultation date of “05/02/2015”, the 3rd Defendant had willingly confirmed in writing that no consultation had been done on “05/02/2015”, in answer to the Plaintiff’s queries and attempted to arrange for a meeting between the Plaintiff and the 2nd Defendant in order to resolve the matter. Nonetheless, the Plaintiff refused to meet the 3rd Defendant. [36] Thereafter the Plaintiff proceeded to commence the present suit complaining about these mistakes found in the 2015 Report. This was absolutely unnecessary and without merits. Principles of Law applicable in an application for a declaratory order [37] For purpose of clarity, the relevant legislation governing the power of the court to grant declaratory relief is re-produced below:

The power of the court to make declaratory judgment is derived under Section 41 of the Specific Relief Act 1950. It reads: “Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to the character or right, and the Court may in its discretion make therein a declaration that he is so entitled, and the plaintiff need not in that suit ask for any further relief: Provided that no Court shall make any such declaration where the plaintiff, being able to seek further relief than a mere declaration or title, omits to do so.”

(ii) The rules of the court do not provide for the procedure upon which declaratory relief is obtained. Instead it merely provides that ‘No action or other proceeding shall be open to objection on the ground that a merely declaratory judgment or order is sought thereby, and the Court may make binding declarations of right whether or not consequential relief is or could be claimed.’ (see Order 15 rules 16 of Rules of Court 2012). [38] The application of the above provisions is best illustrated in the case of Sakapp Commodities (M) Sdn Bhd v Cecil Abraham (Executor of the Estate of Loo Cheng Ghee) [1998] 4 MLJ 651 where Sri Ram JCA (as His Lortdship then was) declared as follows: “It is beyond dispute that the remedy of declaration is discretionary in nature…Although s.41 is not a complete code upon the subject of declaratory decrees (Attorney General of Hong Kong v Zauyah Wan Chik & Ors and another appeal [1995] 2 MLJ 620) and the power to make a declaration is almost unlimited (Hanson v Radcliffe Urban District Council [1922] 2 Ch 490 at p 507 per Lord Sterndale MR), yet, the remedy of declaration may be refused upon settled principles. Thus, generally speaking, the Court will not grant a declaration where an adequate alternative remedy is available (Manggai v Government of Sarawak & Anor [1970] 2 MLJ 41) or upon an issue of no practical consequence (Lim Kim Cheong v Lee Johnson [1993] 1 SLR 313) or where it may be premature to grant a declaration (Rediffusion (Hong Kong) Ltd v A-G of Hong Kong & Anor [1970] AC 1136) or where a plaintiff is guilty of laches (Faber Merlin (M) Sdn Bhd v Lye Thai Sang & Anor [1985] 2 MLJ 380) or other inequitable conduct (City of London V Horner (1914) 111 LT 512) or where a ‘cloaked declaration’, that is to say, a declaration for an improper motive, is sought (Everett v Griffith [1924] 1 KB 941 at p 960). We wish to make in plain that this list is by no means exhaustive. We merely seek to demonstrate the wide variety of circumstances in which declaratory relief may be denied in the exercise of discretion.” [39] In the then Supreme Court case of Mohd Noor bin Othman & Ors v Haji Mohamed Ismail bin Haji Ibrahim & Ors [1988] 3 MLJ 82, Hashim Yeop Sani SCJ held as follows: “It is an established principle consistently followed by our Courts that the issuing of a declaration is discretionary. The power to issue a declaration should be exercised with circumspection with a proper sense of responsibility and ought not to be exercised unless the circumstances justify it. See also the speech of Viscount Radcliffe in the Privy Council decision in Ibeneweka v Egbuna [1964] 1 WLR 219 and Dato Menteri Othman bin Baginda & Anor v Dato Ombi Syed Alwi [1984] 1 MLJ 29. More importantly before a court makes a declaration there must be persons or body as the proper or lawful recipient of the benefits of the declaration. The Court does not act in vain.” [40] In Lim Cho Hock v Government of Perak & Ors [1980] 1 LNS, Abdoolcader J (as His Lordship then was), while acknowledging that power of the Court to make a declaration is only limited by its own discretion, added that such power should be confined to matters justiciable in the Courts, and the binding declarations which it can make under Order 15 rule 16 of the Rules of the High Court, 1980 are limited to legal or equitable rights and do extend to moral, social or political matters. 1st Defendant’s Submission of no case to answer [41] In the case of Takako Sakao (f) v Ng Pek Yuen (f) & Anor [2009] 6 MLJ 751 at pages 759-761, the Federal Court deliberated on the consequences of electing not to give evidence via a submission of no case to answer in the following manner: “[4] In our judgment, two consequences inevitably followed when the first respondent who was fully conversant with the facts studiously refrained from giving evidence. In the first place, the evidence given by the appellant ought to have been presumed to be true. As Elphinstone CJ said in Wasakah Singh v Bachan Singh [1931]1MC125 at p 128: If the party on whom the burden of proof lies gives or calls evidence which, if it is believed, is sufficient to prove his case, then the judge is bound to call upon the other party, and has no power to hold that the first party has failed to prove his case merely because the judge does not believe his evidence. At this stage, the truth or falsity of the evidence is immaterial. For the purpose of testing whether there is a case to answer, all the evidence given must be presumed to be true. Now, what the trial judge did in the present case is precisely what he ought not to have one. He expressed dissatisfaction with the appellant’s evidence without asking himself that most vital question: does the first defendant / respondent have a case to answer? This failure on the part of the trial judge is a serious non-direction amounting to a misdirection which occasioned a miscarriage of justice. The trial judge was at that stage not concerned with his belief of the appellant’s evidence. She had given her explanation as to the discrepancies in the figures. And her evidence does not appear to be either inherently incredible or inherently improbable. In these circumstances it was the duty of the judge to have accepted her evidence as true in the absence of any evidence from the first respondent going the other way. He however failed to direct himself in this fashion thereby occasioning a serious miscarriage of justice. [5] The second consequence is that the court ought to have drawn an adverse inference against the first respondent on the amount of the appellant’s contribution to the purchase price as well as the existence and the terms of the mutual understanding or agreement that she had with the first respondent. Where, as here, the first respondent being a party to the action provides no reasons as to why she did not care to give evidence the court will normally draw an adverse inference. See Guthrie Sdn Bhd v Trans – Malaysian Leasing Corp Bhd [1991]1MLJ33. See also Jaafar bin Shaari & Anor v Tan Lip Eng & Anor [1997]3MLJ693 where Peh Swee Chin FCJ said : ‘The Respondents had chosen to close the case at the end of the appellant’s case. Although they were entitled to do so, they would be in peril of not having the evidence of their most important witness and of having an adverse inference drawn against them for failing to call such evidence should the circumstances demand it”. Court’s Analysis and Findings on the Claim against the 1st Defendant [42] Going back to the present case before me, I do not propose to set out the submissions forwarded by both parties. Instead, it would be sufficient for me to just state my findings and the rationale for my decision as set out below. [43] Firstly, I shall deal with the Defendant’s ‘election of no case to answer’. In this regard, I do acknowledge that the stand taken by the 1st Defendant attracts the following proposition:

the presumption that the evidence given by the other party against him to be true; and

(ii) the presumption of adverse inference being drawn against him. [44] Be that as it may, I take the view that the above presumptions are subject to certain restrictions as laid down in Syarikat Kemajuan Timbermine Sdn Bhd v Kerajaan Negeri Kelantan Darul Naim [2015] 2 CLJ 1037, where the Federal Court explained that despite a defendant not calling any witness and that even if the plaintiff’s evidence is unopposed (and therefore presumed to be true), this does not automatically equate to that evidence satisfying the burden of proving their case. [45] Similarly, in Formis Resources Bhd & Ors v Risk Management and Safety System Pty Ltd & Ors and Others Appeals(supra), the Court of Appeal referring to the Syarikat Kemajuan Timbermine Sdn Bhd case (supra) on the issue an election of no case to answer, stated as follows: “… even if the plaintiff’s evidence is unopposed (and therefore presumed to be true) this does not automatically equate to that evidence satisfying the burden of proving the existence of the settlement agreement borne by the plaintiff, or mean that the burden of proving on the balance of probabilities no longer applies, or that a case to answer is automatically made out. The evidence adduced by the plaintiff must still be sufficient to prove the existence of the settlement agreement. This means that the trial court is obliged to evaluate the evidence of the plaintiff. That evaluation is aided by considering inter alia whether the plaintiff’s evidence is challenged successfully in cross examination. Where the answer is in the affirmative, the assumption can no longer hold. Similarly, where the evidence led by the plaintiff contains inadmissible evidence such as hearsay, opinion, speculation or conjecture with the witness having no personal knowledge of the matters satisfied, then the assumption is also not available. Unrebutted evidence is not necessarily credible or good evidence as it may be inherently or so unsatisfactory that it cannot be relied upon.” [46] Having analyzed the circumstances of the present case and the evidence adduced by the Plaintiff, I agree with stand taken by the 1st Defendant that there was no case for her to answer on the basis that:

the Plaintiff did show or prove that she had a proper or tangible interest to seek the declaration sought for;

(ii) did not show as to how the alleged error in the Medical Report dated 23 April 2015 has affected and/or infringed the rights of the Deceased and/or interest or caused losses and/or damage to the beneficiaries of the estate;

(iii) did not plead or led any evidence as the alleged error in the Medical Report dated 23 April 2015 has affected and/or infringed the rights of the Deceased and/or interest or caused losses and/or damage to the beneficiaries of the estate;

(iv) did not list this claim as an asset and/or recoverable claim in the estate’s list of assets;

admitted that her claim against the 1st Defendant is speculative as she was worried that the 1st Defendant may use the Medical Report to her advantages; and

(vi) had agreed that the 1st Defendant was not involved in the preparation of the said Medical Report. [47] In light of the fact that the 2nd Defendant had rectified the particulars of the Medical Report dated 23 April 2015 and the willingness of the 3rd Defendant to assist the Plaintiff as to how the mistakes in the 2015 Medical Report had occurred, this Court is of the view that there was no necessity for this Court to grant the declaratory order as prayed for by the Plaintiff. [48] In so far as the Plaintiff’s allegation that the 2nd and 3rd Defendant had breached their contractual duty, fiduciary and statutory duty to the deceased by failing to ensure that the contents of the medical report are accurate and true, this Court finds that the Plaintiff’s Statement of Claim has failed to provide the particulars of those breaches as required under the rules. [49] Additionally, even if it was true that there was a breach, to which both the 2nd and 3rd Defendants have categorically denied, the Plaintiff has duly conceded that neither she nor the estate of the Deceased had suffered any loss as a result of the mistakes in the 2015 Medical Report. The Plaintiff’s action was purely on the basis that the report could be used by the 1st Defendant against her and other beneficiaries of the estate. In the words, the Plaintiff herein has failed to prove she had a proper or tangible interest to seek the declaration sought for. [50] Guided by the statutory provisions and authorities as spelt out at paragraphs [36] to [39] above, I can only conclude that a declaratory order as that applied by the Plaintiff herein can only be granted where:

there exists a controversy between the parties;

(ii) the proceedings must involve a right;

(iii) the proceedings must be brought by a person who has proper tangible interest in obtaining the order;

(iv) the controversy must be within the court’s jurisdiction; and

the issue must be one that is not hypothetical or academic. Conclusion [51] Having stated the above, I am satisfied that based on the aforementioned grounds this is one case that do not call for the making of a declaration. Putting it in simple terms, it is my considered view that the aggrieved interest of the Plaintiff, has been remedied and no further relief is required. Accordingly, I am constraint to hold that the declaratory orders sought after by the Plaintiff is baseless and not necessary and is hereby dismissed with costs. [52] In respect of costs, having heard brief submissions from both parties, I find that a sum of RM20,000.00 to each Defendant (subject to allocator) as reasonable towards costs of this proceeding bearing in mind that the Defendants herein were dragged into this proceeding unnecessarily. I hereby order so accordingly. Dated 19th April 2023, ……………………..…………. (MOHD FIRUZ BIN JAFFRIL) JUDGE HIGH COURT OF MALAYA AT SHAH ALAM Solicitor for Plaintiff Mr.Kannan, Tetuan Kannan & Co, Suite 23A, A701-704, Block A, Mentari Business Park, Jalan PJS 8/5, 46150 Petaling Jaya, Selangor. Solicitor for 1st Defendant Mr.Prabhakaran a/l Ramasamy, Tetuan R.Kengadharan & Co, No.15, 2nd Floor, Jalan SS2/55, 47300 Petaling Jaya, Selangor. Solicitor for 2nd Defendant Pn.Nurul Huda Mansor, Tetuan Shearn Delamore & Co, 7th Floor, Wisma Hamzah Kwong Hing, No.1, Leboh Ampang, 50100 Kuala Lumpur. Solicitor for 3rd Defendant Ms.Tan Sixin, Tetuan Azim, Tunku Farik & Wong, Unit 5-03, 5th Floor, Wisma Badan Peguam, 2 Lebuh Pasar Besar, 50050 Kuala Lumpur.