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2025 MarsdenLR 2768
HIGH COURT MALAYA IPOH
VASANTHAN NAGAPPEN – Appellant
Versus
KERAJAAN MALAYSIA & ORS – Respondent
[Summons Writ No: AA-21NCVC-3-03/2024]
The court held that fraudulent concealment by the Defendants extended the limitation period for medical negligence claims, allowing the amendment to include additional Defendants as necessary and non-prejudicial.
Headnote:(A) Public Authorities Protection Act 1948 - Section 2(a) - Law of Limitation - Underlying cause of action concerns allegations of medical negligence resulting in death. The core issue was whether the Plaintiff's amendment to include additional Defendants was time-barred. The court found that fraudulent concealment by the Defendants extended the limitation period due to deliberate suppression of evidence. (Paras [2], [8], [17], [22], [60])
(B) Amendments - Nature of Action - The court held that amendments that merely elaborate on existing allegations do not alter the character of the action. The proposed amendment to include 22 new Defendants was necessary and bona fide, thus allowed. (Paras [24], [29], [57])
Facts of the case:
The Plaintiff's application followed his wife's death, suspected due to medical negligence during treatment. He sought documents to identify responsible parties after requests went unanswered.
Findings of Court:
The court allowed the amendment as it was deemed necessary to identify wrongdoers, and the delay in filing was not inordinate. The Plaintiff acted reasonably in pursuing discovery amid Defendants' non-cooperation.
Issues: The key issues included whether the amendment was time-barred, if there was fraudulent concealment, and whether the amendment would cause injustice to the Defendants.
Ratio Decidendi: The court ruled that the limitation period should be postponed due to fraudulent concealment by the Defendants, allowing the Plaintiff's amendment as it did not change the nature of the action.
Result: The Plaintiff's application granted with order as to costs against the Defendants.
| Table of Content |
|---|
| 1. plaintiff's application for amendment relates to including additional defendants. (Para 1 , 2 , 3) |
| 2. examination of limitation period and circumstances for fraudulent concealment. (Para 7 , 8 , 22) |
| 3. amendment necessary to fully present the plaintiff's case. (Para 31 , 32 , 37) |
| 4. court has wide discretion to allow amendments in interests of justice. (Para 36 , 52 , 56) |
| 5. court grants application to amend with order as to costs. (Para 59) |
Introduction
[1] This is my judgment on the Plaintiff's application in encl 11 to amend the Writ and Statement of Claim to include the 2nd through 23rd Defendants pursuant to O 20 r 5(1) of the Rules of Court 2012. The application was filed subsequent to a successful Pre-Action Discovery Application filed under O 24 r 7A of the Rules of Court 2012 and ss 6 and 42 of the Government Proceedings Act 1956 (" GPA 1956").
[2] The pivotal question in this application is whether the amendment to include additional Defendants is time-barred by virtue of s 2(a) of the Public Authorities Protection Act 1948 (" PAPA 1948"), and whether any delay by the Plaintiff in seeking the amendment is inordinate and unexplained such as to merit dismissal of the application.
[3] The underlying cause of action concerns the alleged medical negligence of various medical personnel and agents of the Government of Malaysia at Hospital Seri Manjung, Perak ("HSM"), leading to the death of the Plaintiff's wife, Amutha Malar a/p Rajandran ("the Deceased") on 9 March 2021. The Plaintiff contends that key documents necessary to identify the responsible individuals were deliberately suppressed by the Defendants, compelling the Plaintiff to initiate Pre-Action Discovery proceedings.
Background Facts
[4] The Deceased was admitted to HSM on 5 March 2021 and died on 9 March 2021. The Plaintiff, suspecting negligent medical treatment, sought the medical records and a list of healthcare personnel involved. Initial letters requesting this information, dated 20 December 2022 and 17 February 2023 respectively, were sent to the 2nd Defendant by AR Registered Post, These requests went unanswered.
[5] Faced with continued silence, the Plaintiff initiated a Pre-Action Discovery Application on 27 September 2023, which was granted by the High Court on 15 February 2024. Following the production of documents on 27 March 2024, the Plaintiff proceeded to file the present application to amend the Writ and Statement of Claim to include 22 additional Defendants allegedly identified from the disclosed documents.
[6] The Plaintiff contends that the failure of the Defendants to respond in a timely fashion to his legitimate requests, and the delay in supplying necessary records, constitutes a suppression of evidence which postponed the commencement of the limitation period.
Issues To Be Determined
[7] Upon careful consideration, I identify the following key issues to be determined, arranged in the most logical and systematic manner:
(i) Whether the Plaintiff's application to amend the Writ and Statement of Claim is time-barred under s 2(a) of the PAPA 1948;
(ii) Whether there has been a fraudulent concealment or suppression of material facts by the Defendants sufficient to postpone the commencement of the limitation period;
(iii) Whether the delay in filing encl 11 is inordinate and unexplained;
(iv) Whether the amendment sought is bona fide, necessary for i determining the real issues, and does not cause injustice or prejudice to the Defendants;
(v) Whether the Plaintiff's application under O 20 r 5(1) of the RC 2012 ought to be allowed in the circumstances.
Whether The Plaintiff's Application Is Time-Barred Under Section 2 (a) Of The Public Authorities Protection Act 1948
[8] The Law of Limitation is based on the well-known doctrine 'interest reipublicae ut sit finis litium', ie it is in the interest of the state that there should be an end to the litigation process. However, whether the defence of limitation is available to a d
