A claim for vicarious liability requires a clear employer-employee relationship, which was absent in this case as the defendant was an independent contractor.

Introduction

[1] By encl 15, the Appellant / 1st Defendant vide a Notice of Application dated 25 March 2022 pursuant to O 18 r 19(1)(a), (b), (c) and (d) and O 92 r 4 of the Rules of Court 2012 seeking to strike out the Respondents / Plaintiffs' Writ of Summons and Statement of Claim filed on 14 December 2021.

[2] For ease of reference, the Appellant shall be hereinafter referred to as the 1st Defendant, Dr Norleen binti Mohd Salleh in the Respondents' Suit, will be referred to as the 2nd Defendant. Whilst the Respondents Ezra bin Mohd Saffuan (1st Plaintiff), Monica Gill (2nd Plaintiff) and Mohd Saffuan bin Johari (3rd Plaintiff) will be collectively referred to as the Plaintiffs in this judgment.

Background Facts

[3] The 1st Plaintiff is the son of the 2nd and 3rd Plaintiffs.

[4] The 1st Defendant is a hospital where the 2nd Defendant, an obstetrician and gynaecologist, carries out her medical practice at the 1st Defendant's hospital.

[5] The 2nd Plaintiff received her pre-natal treatments at the premises of the 1st Defendant's hospital since 10 December 2019 under the care, management and treatment of the 2nd Defendant.

[6] Throughout the treatments, the 2nd Plaintiff was told that her amniotic fluid was low. In light of this, the procedure of induced labour was proposed to the 2nd Plaintiff by the 2nd Defendant and was agreed upon by the 2nd Plaintiff.

[7] The 2nd Plaintiff went into labour on 28 February 2020.

[8] The 1st and 2nd Plaintiffs alleged that they had sustained injuries following the said delivery and the 1st Plaintiff had to be admitted to the Neonatal Intensive Care Unit at the 1st Defendant's Hospital.

[9] The Plaintiffs through their solicitors had then issued a Letter of Demand dated 29 January 2021 to the 1st and 2nd Defendants to demand for compensation as a result of the said injuries and losses arising from their failure and/or neglect to comply with the standard duty of care owed towards the 1st and 2nd Plaintiffs.

[10] Following thereto, the 1st Defendant's solicitors had then issued a letter dated 5 February 2021 to the Plaintiffs' solicitors to deny the allegations made and to request for further documentations to investigate the claims made. The letter also contained information that the attending physician, i.e the 2nd Defendant, is an independent contractor at the 1st Defendant's Hospital.

[11] On 14 December 2021, the Plaintiffs filed a suit at the Shah Alam High Court against the 1st and 2nd Defendants for allegation of medical negligence during the delivery of the 1st Plaintiff on 29 February 2020.

[12] The Plaintiffs pleaded that the 1st Defendant is vicariously liable for the negligent act or omissions of the 2nd Defendant being the 2nd Defendant's employer.

[13] The filing of parties' pleadings was closed 7 March 2022.

[14] On 25 March 2022, the 1st Defendant filed an application (encl 15) to strike out the Plaintiffs' Writ of Summons and Statement of Claim.

[15] On 17 June 2022, the learned High Court Judge dismissed the 1st Defendant's application with costs of RM3,000.00.

[16] Dissatisfied with the said interlocutory decision, on 13 July 2022, the 1st Appellant filed an appeal to the Court of Appeal vide encl 43.

The Relevant Provision Of Law

[17] The laws applicable are as follows:

(i) Order 18 r 19 of the Rules of Court 2012:

"Striking out pleadings and endorsement (O 18 r 19)

(1) The Court may at any stage of the proceedings order to be struck out or amended any pleading or the endorsement, of any writ in the action, or anything in any pleading or in the endorsement,