Vijayakumar A/L Rajendram v Johnson & Johnson Sdn. Bhd. (BA-22NCvC-440-10/2023)

This is the Defendant’s application vide Enclosure 33, made pursuant to Order 33 Rule 2 of the Rules of Court 2012, seeking the determination of certain questions as preliminary issues prior to trial.

In essence, the Defendant invites this Court to determine, at this interlocutory stage, whether the Plaintiff’s claim is barred by limitation under section 6(1)(a) of the Limitation Act 1953, whether section 29 of the said Act is applicable, and whether 02/01/2026 11:32:38 BA-22NCvC-440-10/2023 Kand. 103 the Plaintiff has suffered any actionable injury attributable to the Defendant’s product.

The Plaintiff resists the application and contends that the issues raised are not pure questions of law, but are inextricably intertwined with disputed facts, medical evidence, and allegations of fraudulent concealment, all of which require full ventilation at trial.

After careful consideration of the affidavits, written submissions, oral arguments, and authorities cited by both parties, this Court is of the view that Enclosure 33 is misconceived and must be dismissed. B.

The Plaintiff underwent a right hip replacement surgery in June 2008, during which a DePuy ASR XL hip implant manufactured and supplied by the Defendant was implanted.

The Plaintiff alleges that for several years thereafter, he experienced progressive pain and discomfort, culminating in investigations conducted in 2022–2023 which revealed elevated cobalt and chromium levels, biopsy findings, and a medical diagnosis consistent with metallosis.

It is further the Plaintiff’s case that the Defendant failed to notify him, or ensure notification to his treating surgeon, of a global recall announced in 2010 involving the ASR system, and that such non-disclosure amounted to fraudulent concealment.

The Plaintiff commenced the present action in October 2023, claiming damages in negligence, breach of duty, and product liability.

Prior to the present application, the Defendant had filed an application to strike out the action, which was dismissed by this Court on 4 July 2024 on the basis that triable issues existed. C.

By Enclosure 33, the Defendant seeks to invoke Order 33 Rule 2 to determine the following preliminary issues:

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

Whether section 29 of the Limitation Act 1953 can be relied upon by the Plaintiff; and

Whether the Plaintiff has suffered any actionable injury attributable to the Defendant’s product.

The Defendant contends that these issues are capable of determination on undisputed facts and that their early determination would dispose of the entire suit.

The central issue before this Court is whether the Defendant’s application satisfies the threshold requirements of Order 33 Rule 2, namely:

whether the issues raised are pure questions of law;

whether they can be determined without oral and expert evidence; and

whether their determination would justly dispose of the action. E. DEFENDANT’S SUBMISSIONS

Learned counsel for the Defendant submits that limitation is a pure question of law, relying heavily on authorities such as Vista Specialist Eye Centre v Dato’ Loo Son Yong [2016] 1 MLJ 153 (Court of Appeal), Litus Jaya Sdn Bhd v Borneo Housing Mortgage Finance [2014] 1 MLJ 744 (High Court), and Topland Management Corp v Bank Negara Malaysia [2007] 2 MLJ 526 (High Court).

It is argued that the cause of action accrued in 2008 when the implant was inserted, and that time began to run at that point regardless of the Plaintiff’s later discovery of injury.

The Defendant further submits that the Plaintiff’s allegation of fraudulent concealment is vague, unparticularised, and insufficient in law to invoke section 29 of the Limitation Act.

On injury, the Defendant contends that medical imaging shows no implant failure, loosening, or fracture, and that metallosis has not been conclusively proven. F.

The Plaintiff submits that Order 33 is not intended to short-circuit trials where facts are contested, citing Krishnan Rajan v Bank Negara Malaysia [2003] 1 MLJ 149 (Court of Appeal), Newacres Sdn Bhd v Sri Alam Sdn Bhd [1991] 3 MLJ 474 (High Court), and Dominic J Puthucheary v Jet Age Construction [1997] 2 MLJ 252 (High Court).

It is argued that limitation in this case is inseparable from the factual inquiry into concealment, knowledge, and discovery, and therefore cannot be treated as a pure question of law.

The Plaintiff further submits that allegations of fraudulent concealment necessarily involve issues of credibility, disclosure, and intention, which can only be determined after cross-examination.

On injury, the Plaintiff relies on blood tests, biopsy reports, and specialist opinions, all of which are disputed by the Defendant and require expert evaluation. G.

Order 33 Rule 2 confers a discretionary power on the Court to determine preliminary issues, but the authorities consistently emphasise that such power must be exercised sparingly and cautiously.

In Krishnan Rajan v Bank Negara Malaysia [supra], the Court of Appeal held that Order 33 should not be used where facts are disputed or where extrinsic evidence is required.

Similarly, in Newacres Sdn Bhd v Sri Alam Sdn Bhd [supra], the Court warned against fragmenting trials through piecemeal determination of issues.

The consistent judicial approach is that Order 33 is appropriate only where the issue is clear-cut, purely legal, and capable of disposing of the entire matter without injustice.

Limitation

While limitation is often characterised as a question of law, this Court accepts the Plaintiff’s submission that not every limitation defence is suitable for determination under Order 33.

In the present case, the Plaintiff relies on section 29 of the Limitation Act, alleging fraudulent concealment of the recall.

Whether concealment occurred, whether it was deliberate, and whether it delayed the Plaintiff’s discovery of his cause of action are questions of fact, not law.

These questions cannot be resolved merely by reference to dates. They require examination of communications, disclosures, industry practices, and witness testimony.

Accordingly, the limitation issue in this case is fact-sensitive and unsuitable for summary determination.

(ii) Fraudulent Concealment 30. The Defendant argues that the Plaintiff’s fraud allegation is unparticularised. While that may ultimately be a matter for trial, this Court cannot, at this interlocutory stage, make findings on the sufficiency or truth of such allegations.

As stated in Dominic J Puthucheary v Jet Age Construction [supra], allegations involving fraud and concealment should not be decided without full evidence.

The Court must avoid making premature findings that may prejudice either party.

(iii) Injury and Causation 33. The Defendant’s submission that there is no injury directly contradicts the Plaintiff’s medical evidence.

The Court notes that there are competing medical interpretations regarding metallosis, causation, and alternative pathology.

These are classic examples of issues requiring expert testimony and cross-examination.

It would be wholly inappropriate for this Court to resolve such disputes under Order 33.

Learned counsel for the Defendant submits that limitation is a pure question of law and relies on Vista Specialist Eye Centre Sdn Bhd v Dato’ Loo Son Yong & Anor [supra], where the Court of Appeal held that in medical negligence cases, time generally begins to run from the date of the negligent act or surgery, and not from the date the injury is discovered. The Defendant further relies on Litus Jaya Sdn Bhd v Borneo Housing Mortgage Finance Bhd [supra] (HC), which recognises that limitation may, in appropriate circumstances, be determined as a preliminary issue under Order 33 where the relevant facts are undisputed. In addition, reliance is placed on Topland Management Corp Sdn Bhd v Bank Negara Malaysia [supra] (HC), where it was held that the mere pleading of fraud does not, by itself, preclude the court from determining limitation as a preliminary issue if the allegation of fraud is not supported by material factual disputes.

This Court accepts that the above authorities correctly state the general legal principles governing limitation and the scope of Order 33. However, those cases must be read in their proper factual context. In Vista Specialist, there was no allegation of fraudulent concealment requiring factual inquiry. In Litus Jaya, the limitation issue could be determined on largely undisputed facts. In Topland Management, the allegation of fraud was found to be bare and unsupported by evidence. The present case stands on a different footing. Here, the Plaintiff expressly relies on section 29 of the Limitation Act 1953 and pleads that the Defendant concealed the global recall of the ASR implant, thereby delaying the Plaintiff’s discovery of his cause of action.

Whether such concealment occurred, whether it was deliberate, and whether it in fact postponed the Plaintiff’s knowledge are matters that cannot be resolved by reference to dates alone. They require examination of evidence relating to disclosure practices, communications, and medical findings, as well as assessment of credibility. Accordingly, while limitation may in principle be a question of law, in the circumstances of this case it is inextricably intertwined with disputed questions of fact and alleged concealment. For that reason, the authorities relied upon by the Defendant do not justify the determination of limitation as a preliminary issue under Order 33 in the present proceedings.

Although the earlier striking-out application did not finally determine limitation, it demonstrates that the Court had already found the existence of triable issues.

To permit the Defendant to reintroduce substantially the same issues under a different procedural label would undermine procedural fairness and judicial economy I.

In light of the foregoing, this Court finds that:

The issues raised in Enclosure 33 are not pure questions

They are intertwined with disputed facts and expert evidence;

Their determination requires a full trial; and

Granting the application would result in procedural injustice and piecemeal adjudication.

The Defendant has failed to satisfy the threshold requirements of Order 33 Rule 2. J.

Accordingly, the Defendant’s application in Enclosure 33 is dismissed.

The suit shall proceed to full trial on all issues, including limitation, concealment, injury, defect, and causation.

Costs of RM5000 on Enclosure 33 are awarded to the Plaintiff. Dated this 30th December 2025 -sgd- ………………………………….. Datin Asmah binti Musa Pesuruhjaya Kehakiman Mahkamah Tinggi Malaya Mahkamah Tinggi Shah Alam Counsel for Appellant : Mr. C V Krishnadevan Messrs. C V Devan & Co Counsel for Respondent : Ms. Reuben Ong (Ms. Hemalatha Parawa Ramulu with her)