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2025 MarsdenLR 5992
HIGH COURT MALAYA IPOH
VASANTHAN NAGAPPEN – Appellant
Versus
KERAJAAN MALAYSIA & ORS – Respondent
[Summons Writ No: AA-21NCVC-3-03/2024]
A party can amend pleadings to include additional defendants if the amendment is necessary, bona fide, and does not alter the character of the action, especially when fraudulent concealment affects the limitation period.
Headnote:(A) Public Authorities Protection Act 1948 - Section 2(a) - Government Proceedings Act 1956 - Amendment to Writ and Statement of Claim - Court evaluates whether amendment to include additional Defendants is time-barred and if any delay by Plaintiff is inordinate. The case involves alleged medical negligence leading to the death of the Plaintiff’s wife. (Paras 1, 2, 3)
(B) Limitation Period - Court reaffirms the doctrine that limitation should serve justice and adapt to circumstances when fraudulent concealment is involved; thus, the limitation period is postponed until relevant parties were identified following Pre-Action Discovery. (Paras 12, 20)
(C) Amendment of Pleadings - Court favors amendments aimed at achieving justice as long as they do not significantly change the nature of the suit or prejudice the Defendants. The amendment remains focused on alleged negligence. (Paras 24, 30)
Facts of the case:
The Plaintiff alleged that medical staff at Hospital Seri Manjung failed to provide proper care, resulting in the death of the Deceased. The Plaintiff’s efforts to acquire medical records were ignored, leading to a discovery application. (Paras 3, 4, 5)
Findings of Court:
The Court held that the Plaintiff acted diligently in attempting to identify Defendants, and any delay in filing the amendment application was justified due to Defendants' non-compliance. (Paras 16, 36)
Issues: The Court addressed whether the claim to amend was time-barred, whether fraudulent concealment occurred, and if the delay was unjustified. (Paras 7, 8)
Ratio Decidendi: The active concealment by the Defendants postponed the limitation period, allowing the amendment as necessary and bona fide in pursuit of justice, emphasizing that the amendment did not change the character of the action. (Paras 18, 57)
Result: Plaintiff's application to amend is granted in its entirety, with costs awarded against the Defendants.
| Table of Content |
|---|
| 1. application to amend writ and statement of claim. (Para 1 , 2) |
| 2. claim of medical negligence leading to death. (Para 3 , 4 , 5 , 6) |
| 3. limitation period under papa. (Para 8 , 10 , 11 , 12) |
| 4. fraudulent concealment and its impact on limitation. (Para 18 , 20 , 22 , 26) |
| 5. amendments that do not change character of suit. (Para 24 , 28 , 30) |
| 6. assessment of bona fides and necessary amendments. (Para 31 , 32 , 34 , 36) |
| 7. delay in application not prejudicial. (Para 39 , 41 , 46) |
| 8. court's discretion to allow amendments. (Para 52 , 54 , 56) |
| 9. conclusion to grant plaintiff's application. (Para 58) |
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', i
