Errors in a Statement of Claim are not necessarily fatal if they do not mislead the defendant, allowing the court to examine the merits of the case.

Leong Wai Hong JC:

[Appeal In WA-12BNCvC-56-04/2023]

[Appeal In WA-12BNCvC-60-04/2023]

[Appeal In WA-12BNCvC-63-04/2023]

Introduction

[1] This judgment deals with three appeals and a cross-appeal arising from a tragic motorcycle accident. The important issue that arises is whether errors in the particulars stated in a Statement of Claim are fatal under the principle that parties are bound by their pleadings. Are all errors or only certain categories of errors fatal? Will it result in the claim being dismissed because of this technical defect?

[2] The main appeal is by the two plaintiffs at the Sessions Court below, ie Mohd Hakeem Bin Haniff, a gym instructor age 34 and his fiancee Nurul Shafinaz Binti Abdul Rashid, age 26 at the time of the accident.

[3] They were seriously injured on 19 September 2019 while riding a motorcycle at about 11:10 pm which hit, and I quote, "satu lubang yang besar/rata yang tidak rata aras jalan tersebut.", unquote.

[See Statement of Claim para 3 encl 3 p 41].

[4] The Malay phrase "satu lubang yang besar/rata yang tidak rata aras jalan" translated into English is "a large hole/uneven road level".

[5] At the Sessions Court , the plaintiffs on 23 October 2020 have sued Datuk Bandar Kuala Lumpur/defendant ["DBKL"] for negligence.

Third-Party Indemnity Claims

[6] DBKL, in turn on 23 March 2022, brought a third-party indemnity claim against Sistem Penyuraian Trafik KL Barat Holdings Sdn Bhd ["Sprint"] as a third party. The basis stated by DBKL was that the accident was due to a manhole cover belonging to Time Dotcom Berhad ["Time Dotcom"] located between Jalan Beringin and Damansara Puchong Highway, and that the highway was under the care of Sprint.[See Third Party Notice encl 3 pp 58-62].

[7] Sprint, in turn, brought a third-party indemnity claim against Time Dotcom as 2nd third party on the ground that Time Dotcom's manhole had caused the accident. [See Third Party Notice encl 3 pp 87-91].

Trial At Sessions Court

[8] At the trial the two plaintiffs testified as SP2 and SP3. The Police Investigating Officer/SP1 and Mohamed Fauzi, a maintenance staff from DBKL/SD1, also testified. Sprint opted not to call any witness. Time Dotcom also didn't call any witness and opted to submit a no case to answer. [See Grounds of Judgment Sessions Court at [7] and [8]].

[9] The plaintiffs' suit against DBKL was dismissed on 30 March 2023 after a full trial. Nonetheless the Sessions Court proceeded to assess the quantum, [based on 100% liability on the basis the claim of the plaintiffs is allowed], as required under the guidelines for the purposes of an appeal.

[10] The plaintiffs filed an appeal in WA-12BNCvC-56-04/2023 ["Appeal 56"] to me on liability and quantum but subsequently abandoned the appeal on quantum. DBKL, in turn, filed a cross-appeal in encl 6 on part of the general damages and part of the special damages awarded to the plaintiffs.

[11] DBKL's indemnity claim against Sprint was also dismissed by the Sessions Court . [See Grounds of Judgment Sessions Court at [9]]. DBKL filed an appeal in WA-12BNCvC-60-04/2023 ["Appeal 60"] to me.

[12] Sprint's indemnity claim against Time Dotcom was also dismissed by the Sessions Court . [See Grounds of Judgment Sessions Court at [9]]. Sprint filed an appeal in WA-12BNCvC-63-04/2023 ["Appeal 63"] to me.

Appeals To Me

[13] I heard all three appeals and the cross-appeal together on 17 October 2023, 31 October 2023, 15 February 2024 and on 1 March 2024. I delivered my decision on 1 March 2024.

[14] DBKL and Time Dotcom have on 1 April 2024 applied for leave to appeal to the Court of Appeal against my decision. These are my Grounds of Decision. I start with Appeal 56.

Reasoning Of The Sessions Court

[15] The sole ground cited by the Sessions Court to dismiss the plaintiff's suit were two factual errors in the Statement of Claim. [See Grounds of Judgment Sessions Court at [33]].

[16] The Sessions Court said the Statement of Claim at para 3 [See Appeal Record Part A p