Thilagawathi A/p K Kathirasu (Mendakwa Sebagai Pelaksana Harta Pesaka Si Mati V Selvaratnam A/l S Vallipuram Melalui Geran Probet Bertarikh 24.5.2023 Dalam Saman Pemulano. Ba-32ncvc-486-05/2023 Di Mahkamah Tinggi Malaya Di Shah Alam, Selangor) v INSTITUT JANTUNG NEGARA SDN BHD (WA-21NCvC-1-01/2024)

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DATO’ DR SUNETA BINTI SULAIMAN KERAJAAN MALAYSIA …DEFENDAN-DEFENDAN 04/02/2025 09:25:00 WA-21NCvC-1-01/2024 Kand. 137 S/N F9FihXIjh0S/GaAxzntw3w GROUNDS OF JUDGMENT Introduction [1] The fundamental principle applicable when considering striking-out applications under Order 18 rule 19 Rules of Court 2012 is that it must be plain that a plaintiff’s claim is obviously unsustainable. It is indeed so in this case, vis-à-vis 8 out of the 12 Defendants in this civil suit. For example, the Plaintiff has named Tan Sri Dr. Noor Hisham bin Abdullah (the former Director-General of the Ministry of Health) as the 2nd Defendant even though the cause of action is obviously against the 1st Defendant INSTITUT JANTUNG NEGARA SDN BHD which runs Institut Jantung Negara (“IJN”) and the doctors therein who treated the deceased patient. Though it is named as an institute, IJN is actually a cardiovascular and thoracic care hospital. [2] As it is so obvious that the Plaintiff has no reasonable cause of action and/or has brought a frivolous and vexatious claim against the 2nd, 3rd, 4th, 5th, 6th ,7th, 8th, and 12th Defendant, I was constrained to allow their respective applications to strike out the Plaintiff’s claim. However, I ordered only nominal costs of RM1,000.00 to be paid to the 2nd, 3rd, 4th, 5th, 6th ,7th, 8th Defendant respectively and RM3,000.00 to the 12th Defendant. Background Facts [3] The Plaintiff is the widow and executor of the Estate of Dr. Selvaratnam a/l S.Vallipuram (“the Deceased”). Grant of Probate was issued to her on 24th May 2023. [4] The Deceased was treated as a patient in IJN from 15th to 23rd December 2020 (‘the Treatment Period”) by the 9th, 10th and 11th S/N F9FihXIjh0S/GaAxzntw3w Defendant and other nursing staff of the 1st Defendant. He was transferred on 23rd December 2020 to University Malaya Medical Centre (pleaded as “PPUM” in the pleadings which an abbreviation of Pusat Perubatan Universiti Malaya) for further treatment. Unfortunately, he died on 8th January 2021. [5] There were a total of 8 striking-out applications filed, by way of Notices of Application (Enclosures 51, 54, 56, 58, 60, 62, 64 and 66) to strike out the Plaintiff’s claims against the 2nd, 3rd, 4th, 5th, 6th ,7th, 8th, and 12th Defendant. The Plaintiff’s Claim [6] The Plaintiff pleaded medical negligence as the cause of action of the Estate against the Defendants. [7] It was further pleaded in the Statement of Claim, inter alia, that the Deceased underwent a Coronary Artery Bypass Graft (CABG) surgery at IJN and was transferred to the hospital’s Intensive Care Unit (“ICU”) after the surgery on 25th November 2020 but suffered a cardiac arrest two days later on 27th November, requiring CPR and intubation. The intubation led to iatrogenic bilateral temporomandibular joint (TMJ) dislocation, which was allegedly missed by the 10th and 11th Defendant who were the consultants in charge of the ICU patients at the material time. Unfortunately, a series of complications followed, one after another. [8] The Deceased and his family wanted to transfer him to PPUM but it was delayed by the Defendants. He was finally transferred to PPUM on 23rd December 2020 for further medical treatment. According to the Plaintiff, the delay in facilitating the transfer of the Deceased to PPUM S/N F9FihXIjh0S/GaAxzntw3w caused the Deceased’s condition to deteriorate because he suffered further complications while being treated in IJN. [9] In other words, the Plaintiff pleaded a lengthy list of medical events in her Statement of Claim, that, in her opinion, amounted to medical negligence which contributed to the deterioration of the Deceased’s condition, leading to his death. The striking-out applications filed by the 2nd, 3rd, 4th, 5th, 6th ,7th, 8th, and 12th Defendant respectively [10] The 2nd Defendant’s position is that he was not involved in the treatment or management of the Deceased, had no personal knowledge of the events alleged, and was not the employer of 9th, 10th or 11th Defendant. Additionally, the 2nd Defendant asserts that he is not vicariously liable for their actions or omissions. The 2nd Defendant prays for an order to strike out the Plaintiff’s claim against him. [11] The 3rd, 4th, 5th, 6th ,7th and 8th Defendant respectively deny that they are vicariously liable for the actions of the 9th, 10th and 11th Defendant. It was further asserted that he/she was not involved in the treatment or management of the Deceased. Each of them prays for an order to strike out the Plaintiff’s claim against him/her. Analysis of the Facts and Law [12] As the executor of the Estate of the Deceased, there is no doubt that the Plaintiff has a legal right pursuant to S.8 of the Civil Law Act 1956 to bring this action for the Estate. S/N F9FihXIjh0S/GaAxzntw3w [13] The 9th, 10th and 11th Defendant were doctors in IJN who treated the Deceased. As pointed out above, IJN is owned by the 1st Defendant. Had the Plaintiff named only the 1st, 9th, 10th and 11th Defendant as co-defendants in this civil suit, this action should just be set down for trial early to determine if they were negligent in their treatment of the Deceased. [14] The naming of the other 8 Defendants led to the filing of the aforesaid striking-out applications under Order 18 rule 19. As alluded to above, I have decided that those applications were well justified and ought to be allowed. My reasons are as follows. [15] The Plaintiff has noted that Institut Jantung Negara, commonly known as IJN, is a hospital run by Institut Jantung Negara Sdn Bhd. Thus, the Plaintiff has rightly named that private limited company as the 1st Defendant in this civil suit. [16] As for the 2nd Defendant Tan Sri Noor Hisham bin Abdullah – whose name became a household name in Malaysia during the Covid-19 lockdown period – it is common knowledge that he served as the Director-General of the Health Ministry, and was not practising as a doctor during the Treatment Period. There is also no plea in the Statement of Claim of the 2nd Defendant having treated the Deceased. Even though the 2nd Defendant was a director of the 1st Defendant during the Treatment Period, his appointment was obviously by virtue of his holding office as the Director-General of the Health Ministry. That being so, there is no reason to name the 2nd Defendant (Tan Sri Noor Hisham) as a co-defendant in this action. S/N F9FihXIjh0S/GaAxzntw3w [17] Since the 1st Defendant is a private limited company with separate legal entity and not a government hospital under the Ministry of Health within the Government of Malaysia, there is simply no legal grounds for the Plaintiff to name the 12th Defendant (the Government of Malaysia) as a co-defendant in this civil suit. [18] Thus, it is my judgment that the Plaintiff’s claim against the 2nd Defendant and the 12th Defendant are, in law and in fact, plain and obviously unsustainable, and ought to be struck out in limine. [19] As for the 3rd, 4th, 5th, 6th, 7th and 8th Defendant, the Plaintiff has named them as co-defendants simply because they are/were the directors of the 1st Defendant. [20] It is undisputed that except for the 3rd and 8th Defendant, the 4th, 5th, 6th, and 7th Defendant were appointed as director of the 1st Defendant on different dates long after the Treatment Period. Thus, there was absolutely no nexus between the 4th, 5th, 6th, and 7th Defendant and the Deceased. [21] In Malaysia, all limited companies incorporated under the Companies Act 2016, including the 1st Defendant in this case, have a separate legal personality from that of its members, i.e. its shareholders and directors by virtue of Section 20 of Companies Act 2016 that reads: “A company incorporated under this Act is a body corporate and shall-

have legal personality separate from that of its members”. [22] The 1st Defendant, as a private limited company has the powers to carry out business in its own name as a body corporate. This is statutorily set out in S.21 of the Companies Act 2016, as follows: S/N F9FihXIjh0S/GaAxzntw3w “(1) A company shall be capable of exercising all the functions of a body corporate and have the full capacity to carry on or undertake any business or activity including-

to sue and be sued;

to acquire, own, hold, develop or dispose of any property; and

to do any act which it may do or to enter into transactions.

A company shall have the full rights, powers and privileges for the purposes mentioned in subsection (1).” [23] By virtue of Sections 20 and 21 of the Companies Act 2016 expressly declaring that a limited company has a legal personality separate from that of its shareholders and is vested with independent powers to transact in its own name, to sue and be sued in its own name, a company is legally separated from its shareholders. This dichotomy between a company and its shareholders is commonly referred to as the “corporate veil of the company”. [24] It is trite that directors of a company are not personally liable to third parties for liabilities of the company unless there is justification to pierce/lift the corporate veil of the company to hold them personally liable. In this case, there is no allegation of the 1st Defendant being used as a corporate vehicle of the 3rd, 4th, 5th, 6th, 7th and 8th Defendant. Neither is there any prayer in the Plaintiff’s Statement of Claim for this Court to pierce the corporate veil of the 1st Defendant. [25] For completeness in addressing this issue, I must state even if there is a prayer to pierce the corporate veil of the 1st Defendant, it is not open for this Court to flippantly disregard its corporate veil, for there must be evidence either of actual fraud or some conduct amounting to fraud in S/N F9FihXIjh0S/GaAxzntw3w equity to justify the lifting of corporate veil. The Federal Court in Solid Investments Ltd v. Alcatel Lucent (Malaysia) Sdn Bhd [2014] 3 CLJ 73 provided guidance in the following passages: “[46] … We also agree with the Court of Appeal that there must be evidence either of actual fraud or some conduct amounting to fraud in equity to justify the lifting of corporate veil. The position of the law on this subject had been clearly stated by Gopal Sri Ram JCA (as he then was) in Law Kam Loy v. Boltex Sdn Bhd [2005] 3 CLJ 355 at p. 362 as follows: In my judgment, in the light of the more recent authorities such as Adams v. Cape Industries Plc, it is not open to the courts to disregard the corporate veil purely on the ground that it is in the interests of justice to do so. It is also my respectful view that the special circumstances to which Lord Keith referred include cases where there is either actual fraud at common law or some inequitable or unconscionable conduct amounting to fraud in equity…” [26] For the avoidance of doubt, the 2nd, 3rd, 4th, 5th, 6th, 7th and 8th Defendant had, in their respective affidavit, confirmed that the 9th, 10th and 11th Defendant were never at any time their employee. Their averment under oath was not denied or rebutted by the Plaintiff. Thus, the Plaintiff’s plea of vicarious liability against the 2nd, 3rd, 4th, 5th, 6th, 7th and 8th Defendant are wholly unsustainable. [27] The provisions of Order 18 rule 19 Rules of Court 2012 exist to terminate claims that are obviously unsustainable, and if the courts fail to ‘nip them in the bud’, this Court would be allowing abuse of court process by turning a blind eye to the statutory provisions of Sections 20 and 21 of the Companies Act 2016 (as cited in para [21] and [22] above). S/N F9FihXIjh0S/GaAxzntw3w S/N F9FihXIjh0S/GaAxzntw3w Counsel for the Plaintiff: Vinod A/L R. Kamalanathan (Muhammad Azim Akif with him) SOLICITORS FOR THE PLAINTIFF: MESSRS VINOD KAMALANATHAN & ASSOCIATES Advocates & Solicitors Suite 501, 5th Floor, Loke Yew Building, 4, Jalan Mahkamah Persekutuan, 50500 KUALA LUMPUR. Counsel for the 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, and 8th Defendants: Amos Siew (Wong Ik Ling with him) SOLICITORS FOR THE 1st, 2nd, 3rd, 4th, 5th, 6th, 7th, AND 8th DEFENDANTS: MESSRS AZIM, TUNKU FARIK & WONG Advocates & Solicitors Unit 5-03, 5th Floor, Straits Trading Building, 2 Lebuh Pasar Besar, 50050 KUALA LUMPUR. Counsel for the 9th, 10th, and 11th Defendants: Christal Wong SOLICITORS FOR THE 9th, 10th, AND 11th DEFENDANTS: MESSRS SHEARN DELAMORE Advocates & Solicitors 7th Floor, Wisma Hamzah Kwong Hing, No 1, Leboh Ampang 50100 KUALA LUMPUR. S/N F9FihXIjh0S/GaAxzntw3w Counsel for the 12th Defendant: Puan Anisah Normah (SFC) (Puan Husnia Hanapi (SFC) with her) SOLICITORS FOR THE 12th DEFENDANT: JABATAN PEGUAM NEGARA Bahagian Guaman (Civil Division). 45 Persiaran Perdana, Presint 4, 62100 PUTRAJAYA. S/N F9FihXIjh0S/GaAxzntw3w CASE(S) REFERRED TO:

Solid Investments Ltd v. Alcatel Lucent (Malaysia) Sdn Bhd [2014] 3 CLJ 73.

Order 18 rule 19 Rules of Court 2012.

Section 8 of the Civil Law Act 1956.

Section 20 of the Companies Act 2016.

Section 21 of the Companies Act 2016.