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2023 MarsdenLR 759
HIGH COURT MALAYA KUALA LUMPUR
MUHAMMAD RIFQI AMZAR FAIZO – Appellant
Versus
DR SIVAKUMAR SIVALINGAM & ORS – Respondent
[Case No: WA-23NCVC-89-09-2021]
The court emphasized the duty to protect a minor's rights, ruling that financial incapacity should not prevent access to justice, allowing future claims.
Headnote:(A) Order 21 r 3(1) and Order 34 r 2(5) of the Rules of Court 2012 - Withdrawal of action by minor - Plaintiff, a minor, withdrew action due to financial incapacity, court allowed withdrawal but removed condition of no liberty to file afresh to protect minor's rights - Court emphasized duty to act in best interest of the child and ensure justice is served. (Paras 10, 16, 38)
(B) Consent Orders - Court's scrutiny of proposed settlements - Court retains discretion to approve or disallow settlements, ensuring they do not contravene justice, especially concerning minors. (Paras 12, 16, 38)
Facts of the case:
The plaintiff, a minor, withdrew his negligence claim against two doctors and a hospital due to financial constraints. The court allowed the withdrawal but questioned the fairness of denying the right to re-file. (Paras 1-7)
Findings of Court:
The court found it unjust to deny the minor's right to re-file, emphasizing the need to protect the interests of children and ensure access to justice. (Paras 16, 38)
Issues: Whether the withdrawal without liberty to file afresh was just, considering the plaintiff's status as a minor and his financial incapacity. (Paras 1, 16)
Ratio Decidendi: The court ruled that the minor's rights must be protected, and financial incapacity should not bar access to justice, allowing for the possibility of re-filing the action. (Paras 16, 38)
Result: The condition of no liberty to file afresh was removed, allowing the minor to pursue his claim in the future.
| Table of Content |
|---|
| 1. withdrawal of action by minor (Para 1 , 2 , 3 , 4 , 5) |
| 2. consent order for withdrawal (Para 6 , 7) |
| 3. court's concerns about minor's rights (Para 8 , 9) |
| 4. jurisdiction to withdraw action (Para 10 , 11) |
| 5. court's duty to scrutinize consent orders (Para 12 , 13 , 14) |
| 6. justice for minors in legal actions (Para 15 , 16) |
| 7. right to remedy for minors (Para 17 , 18 , 19) |
| 8. welfare principle in court (Para 20 , 21) |
| 9. disability protections in law (Para 22 , 23 , 24 , 25 , 26) |
| 10. access to justice for minors (Para 27 , 28 , 29 , 30) |
| 11. impecuniosity does not bar claims (Para 31 , 32 , 33) |
| 12. abuse of process considerations (Para 34 , 35 , 36) |
| 13. overarching duty to do justice (Para 37 , 38 , 39) |
| 14. judicial oversight in civil actions (Para 40 , 41 , 42) |
| 15. alteration of consent order (Para 43) |
Introduction
[1] This court was informed by the solicitors for the parties to this action that they have agreed for the action to be withdrawn and struck out without any order for costs and without liberty to file afresh. They sought for a Consent Order to this effect to be recorded. Upon being apprised by learned counsel for the plaintiff who is a minor suing the two defendant doctors and the 3rd defendant hospital that the plaintiff is withdrawing the action because the plaintiff is in no financial position to continue with the suit, the court allowed the action to be struck out with no order as to costs but refused to record the condition that the plaintiff shall have no liberty to file afresh. Dissatisfied, the 3rd defendant hospital appealed and this was followed by the first two defendants who jointly filed a separate appeal. These are the grounds of judgment for the two separate appeals.
Parties
[2] The plaintiff in this case is a minor, currently at the tender age of 10 years. When he commenced this action through his father as his litigation representative, he was only 8 years old.
[3] The first two defendant doctors had operated on the plaintiff in the 3rd defendant hospital.
Nature Of Claim
[4] The parents claimed they did not give an informed consent for the plaintiff to undergo the several surgeries performed upon him whilst under the care of the defendants and as a result of the surgeries and breach of duty of care, the plaintiffs right hand and both his legs below his knees were amputated.
[5] The plaintiff grounded his claim on negligence on the part of the defendants who denied the same. The 3rd defendant had taken out third party proceedings claiming for contribution and indemnity against the first two defendants in the event it is found liable to the plaintiff.
Salient Facts Leading To The Withdrawal Of The Action
[6] The court was informed by the plaintiff's solicitor during the case management on 5 July 2023 that they have instructions to withdraw the action and sought that there be no order as to costs. She added that the claim is being withdrawn because the plaintiff is in no financial position to proceed further with the claim.
[7] The lawyers representing the defendants have no objections to the plaintiffs intention to withdraw but informed the court that it was agreed that it be without liberty to file afresh. This court allowed the plaintiff to withdraw its action and ordered the action to be struck out with no order as to costs and without liberty to file afresh.
[8] However, I was troubled by the reason given by the solicitor for the plaintiff for the withdrawal of the action. Upon my instructions, the learned Deputy Registrar, Shaarmini Arjunan informed the respective solicitors for the parties of my wish to see them. A case management date suitable for them was scheduled for the 7 July 2023, and after having confirmed with the respective solicitors that the consent order made on 5 July 2023 has not been drawn up, passed, perfected and entered, I had expressed my reservations whether it is just that the plaintiff who is a minor is abandoning his claim without liberty to file afresh due to impec
