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Issue #46/2024
14 November 2024
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CASE SPOTLIGHTS
A MINOR (A MINOR SUING THROUGH HIS MOTHER AND LITIGATION REPRESENTATIVE, CCY) & ORS v. Healthcare professionals and practitioners owe a duty of care to their patients and this duty extends to providing appropriate care, adhering to established standards of practice and obtaining informed consent. A breach of duty occurs when a healthcare professional fails to meet the required standard of care. This may include negligence in diagnosis, treatment, or communication with patients. To establish medical negligence, the claimant must prove that the breach of duty is the direct cause of their injury or loss. TORT: Negligence - Medical negligence - Damages - Claim for - Claim for damages against certain medical practitioners of hospital for medical negligence relating to circumstances of childbirth - Claimant minor suing though mother and litigation representative - Claimant suffered from spastic quadriplegic cerebral palsy due to hypoxic ischaemic encephalopathy and possible infantile stroke - Whether there was duty of care owed by attending physicians to claimant and claimant's mother - Whether there was breach of duty of care - Whether medical professionals lacked in skills and experience - Whether there was failure by medical professionals to adhere to procedures and guidelines for maternity cases - Whether consent properly obtained - Whether there was medical negligence TORT: Negligence - Medical negligence - Duty of care - Breach - Claim against certain medical practitioners of hospital for medical negligence relating to circumstances of childbirth - Child suffered from spastic quadriplegic cerebral palsy due to hypoxic ischaemic encephalopathy and possible infantile stroke - Father of child sued only in personal capacity and claimed for special damages - Whether father of child patient of attending physicians - Whether attending physicians owed duty of care to father of child - Whether father of child had any personal cause of action - Whether claim by father of child ought to be dismissed TORT: Negligence - Medical negligence - Liability - Vicarious liability - Claim for damages against certain medical practitioners of Government hospital for medical negligence relating to circumstances of child birth - Claimant suffered from spastic quadriplegic cerebral palsy due to hypoxic ischaemic encephalopathy and possible infantile stroke - Whether negligence of medical practitioners proven - Whether Government of Malaysia vicariously liable JUDICIAL QUOTES“The Liquidator must not simply admit the POD but must have the duty to scrutinise the details of the same as required by Rule 92 of the Companies (Winding Up) Rules. The Liquidator is to act with great caution and is allowed to request documents to satisfy himself of the claim. There is nothing to show that the Liquidator on being suspicious of the claim was unreasonable in requesting in such circumstances for further and better particulars of the claim. In the present case, the said Liquidator has decided not to take the face value of the two (2) Credit Notes and to say that the Applicant has paid the purchase price in full or any part thereof. The Court should be slow in interfering with the decision of the Liquidator where it has not been demonstrated that the Liquidator had erred in his decision. Being an officer of the Court when so appointed by the Winding Up Court, the Liquidator's task is onerous and there were high expectations cast on his shoulder.” - Per Faridz Gohim Abdullah JC in Bong Jin Ching & Ors v. Besthouse Development (M) Sdn Bhd; Quality Concrete Sdn Bhd (Applicant) [2024] CLJU 1937 LATEST CASESLegal Network Series
CLJ 2024 Volume 9 (Part 6) 'Credit reporting', as defined under the Credit Reporting Agencies Act 2010, includes credit information that has bearing on the eligibility of a customer to any credit. The reporting is done by way of credit score, calculated by a software using algorithms and bereft of human intervention. In a case where services of a credit reporting agency is sought by a creditor against its debtor, the debtor could not attach duty of care against the credit reporting agency. TORT
TORT: Negligence - Duty of care - Default in payment of monthly charges to internet service provider - Internet service provider reported to credit reporting agency - Whether debtor's credit information by credit reporting agency accurate - Whether indebtedness admitted - Whether credit reporting agency owed duty of care to debtor - Whether breached duty - Whether information supplied accurate
Lee Swee Seng JCA
(i) A settlement agreement may effectively extinguish a judgment if it clearly indicates that the parties intend to do so and does not preserve the plaintiff's rights to enforce the judgment; (ii) The 12-year limitation period under the Limitation Act 1953 ('Act') applies to fresh actions on a judgment, not to execution proceedings. Even if leave is granted for execution, a bankruptcy proceeding based on a judgment that is more than 12 years old would be barred by the Act. LIMITATION | CIVIL PROCEDURE
LIMITATION: Execution of judgment - Summary judgment - Summary judgment obtained in 2010 - Bank extended banking facilities to borrower - Bank obtained leave to execute summary judgment in 2010 against guarantor for various sums - Bank entered into separate settlement agreements with guarantor after obtaining judgment - Bank sought leave to execute judgment against guarantor after more than 12 years had elapsed - 12-year limit provided under s. 6(3) of Limitation Act 1953 - Whether limitation had set in - Whether statute-barred CIVIL PROCEDURE: Judgments and orders - Execution - Execution of summary judgment - Summary judgment obtained in 2010 - Bank extended banking facilities to borrower - Bank obtained leave to execute summary judgment in 2010 against guarantor for various sums - Bank entered into separate settlement agreements with guarantor after obtaining judgment - Whether judgment superseded by settlement agreements - Whether limitation under s. 6(3) of Limitation Act 1953 had set in - Rules of Court 2012, O. 46 rr. 2 & 3
Ong Chee Kwan J
In Malaysian courts, it is mandatory to submit pleadings in the national language, Bahasa Melayu, even for defamatory articles originally published in English. The failure to provide a certified translation of the defamatory material into Bahasa Melayu can be fatal to the case, even if the meaning and wordings are otherwise particularised in Bahasa Melayu. Support to this mandatory requirement is found in art. 152 of the Federal Constitution as well as s. 8 of the National Language Act 1963/67 and O. 92 r. 1 of the Rules of Court 2012 and the Court of Appeal's decisions in Rekha Munisamy v. Ortus Expert White Sdn Bhd & Anor and Dato' Seri Anwar Ibrahim v. Tun Dr Mahathir Mohamad. CIVIL PROCEDURE | TORT | CONSTITUTIONAL LAW
CIVIL PROCEDURE: Pleadings - Translation - Bahasa Melayu - National language and court's official language - Claim for tort of defamation, malicious falsehood and under Defamation Act 1957 - Claim premised on three articles which allegedly contained defamatory statements - Original language of alleged defamatory article in English - Claimant's amended statement of claim solely provided impugned defamatory article in English - Attack on procedural technicality - Original language of alleged defamatory article not translated into Bahasa Melayu - Whether mandatory to submit pleadings in Bahasa Melayu - Whether failure to provide certified translation of article in English to Bahasa Melayu fatal to claimant's case - Federal Constitution, art. 152 - National Language Act 1963/67, s. 8 - Rules of Court 2012, O. 92 r. 1 TORT: Defamation - Pleadings - Claim premised on three articles which allegedly contained defamatory statements - Original language of alleged defamatory article in English - Claimant's amended statement of claim solely provided impugned defamatory article in English - Original language of alleged defamatory article not translated into Bahasa Melayu - Whether mandatory to submit pleadings in Bahasa Melayu - Whether failure to provide certified translation of article in English to Bahasa Melayu fatal to claimant's case - Federal Constitution, art. 152 - National Language Act 1963/67, s. 8 - Rules of Court 2012, O. 92 r. 1 CONSTITUTIONAL LAW: National language - Bahasa Melayu - Pleadings - Court's official language - Whether mandatory to submit pleadings in Bahasa Melayu - Whether failure to provide certified translation of article in English to Bahasa Melayu fatal to claimant's case - Federal Constitution, art. 152 - National Language Act 1963/67, s. 8 - Rules of Court 2012, O. 92 r. 1 Raja Ahmad Mohzanuddin Shah JC
Once a court order has been issued against an individual, he is bound to comply with such order until the order has been set aside or varied. It is not open for him to decide whether the order was wrongly issued. Any failure or neglect to comply with the court order would pave the way for contempt proceedings against that person. In order for contempt to be established, it must be proven that the order has been contumaciously disregarded, ie, the contempt must be wilful. FAMILY LAW
FAMILY LAW: Children - Maintenance - Court order for husband to pay child maintenance - Default in payment - Commencement of committal proceedings by wife - Whether husband had full knowledge of obligation to pay maintenance - Whether wilful neglect to comply with court order - Whether husband genuinely could not afford to pay maintenance - Whether appeal filed against court order - Whether breach of court order proven beyond reasonable doubt - Whether husband guilty of contempt
Julie Lack J
The applicable provisions in determining whether an extension of time ought to be granted for an applicant to respond to a substantive examination adverse report in an application for patent, are the provisions under s. 30 of the Patents Act 1983. The provisions under s. 82 of the same Act and reg. 53 of the Patents Regulations 1986, either the pre-amended or post-amended by the Patents (Amendment) Act 2022, are not applicable. INTELLECTUAL PROPERTY
INTELLECTUAL PROPERTY: Patent - Application for - Extension of time to make observations and response to substantive examination adverse report - Applicant failed to file application within prescribed time limit - Application filed eight and half months after expiry of prescribed time limit - Applicant inadvertently overlooked substantive examination adverse report - Whether application ought to be allowed - Whether provisions applicable were provisions under s. 30 of Patents Act 1983 or s. 82 of same Act read together with reg. 53 of Patents Regulations 1986, either pre-amended or post-amended by Patents (Amendment) Act 2022
Azlan Sulaiman JC
An order to forfeit a land to the State Authority must be made pursuant to s. 100 of the National Land Code. A land forfeited for a public purpose without following the proper procedures under the Land Acquisition Act 1960, is invalid and contrary to art. 13(1) of the Federal Constitution. LAND LAW
LAND LAW: Forfeiture - Forfeiture order - Setting aside - Discovery of ownership of another plot of land - Information came to light when owner received arrears notice ('notice 6A') - Land office informed owner that plot did not exist and overlapped with another plot of land - Land office informed owner that Notice 6A was incorrect and could be ignored - Later discovery that plot of land did exist - Plot of land forfeited for public purpose due to owner's failure to pay and settle arrears of quit rent - Whether forfeiture valid - Whether provisions of National Land Code complied with - Whether there was contravention of art. 13(1) of Federal Constitution - Land Acquisition Act 1960
Muniandy Kannyappan J
(i) The Industrial Court is not seized with the jurisdiction to determine whether a dispute has been settled and decline jurisdiction. Once the Director General of Industrial Relations refers a dispute, the Industrial Court must determine the said dispute on its merits, regardless of any settlement attempts; (ii) The Industrial Court should not resolve disputes of fact in a striking out proceeding. The question of whether a reinstatement is genuine or not is a triable issue that ought to be determined at a full hearing. INDUSTRIAL COURT | LABOUR LAW | CIVIL PROCEDURE
INDUSTRIAL COURT: Jurisdiction - Striking out of statement of case - Employee considered herself constructively dismissed and referred matter to Director General of Industrial Relations - Conciliation failed - Reinstatement offered by employer rejected by employee - Matter referred to Industrial Court - Industrial Court struck out employee's case upon employer's application - Industrial Court of opinion that dispute had been settled at conciliation stage - Whether Industrial Court obliged to decide dispute - Whether acted in excess of jurisdiction by striking out statement of case LABOUR LAW: Employment - Constructive dismissal - Jurisdiction of Industrial Court - Employee considered herself constructively dismissed and referred matter to Director General of Industrial Relations - Conciliation failed - Reinstatement offered by employer rejected by employee - Matter referred to Industrial Court - Industrial Court struck out employee's case upon employer's application - Industrial Court of opinion that dispute had been settled at conciliation stage - Whether Industrial Court seized with jurisdiction to strike out case - Whether there were triable issues of fact and law - Industrial Relations Act, ss. 20, 29(fa) & 54(3) CIVIL PROCEDURE: Striking out - Statement of case - Employee considered herself constructively dismissed and referred matter to Director General of Industrial Relations - Conciliation failed - Reinstatement offered by employer rejected by employee - Matter referred to Industrial Court - Industrial Court struck out employee's case upon employer's application - Industrial Court of opinion that dispute had been settled at conciliation stage - Whether there were triable issues of fact and law - Whether Industrial Court permitted to resolve serious disputes of fact and law in striking out proceeding - Whether determination could only be decided after evidence is led at trial - Whether O. 18 r. 19 of Rules of Court 2012 could be utilised at Industrial Court Amarjeet Singh Serjit Singh J
There is a clear distinction between an ordinary amendment application and those applications made at the eve and upon the commencement of a trial. Ordinary amendments should be dealt with based on the test in Yamaha Motor Co Ltd v. Yamaha (M) Sdn Bhd & Ors ('Yamaha Motor test'), ie, the amendment should always be allowed unless: (i) the application to amend is mala fide; (ii) such amendment would cause an injustice and prejudice to the other side which could not be compensated by costs; and (iii) the amendments would turn the suit from one character into a suit of an inconsistent character. With regards to 'eve of trial' amendments, in addition to the Yamaha Motor test, Hong Leong Finance Bhd v. Low Thiam Hoe and Another Appeal requires the court to assess and examine: (i) whether the applicant's affidavit provides a cogent and reasonable explanation for the delay in filing the application; (ii) whether the application to amend is not a tactical manoeuvre; (iii) whether the proposed amendment discloses full particulars to enable the court to ascertain if there is a real prospect of success in proving the same; and (iv) whether the lateness in the application to amend the pleadings could not necessarily be compensated by payment of costs. CIVIL PROCEDURE
CIVIL PROCEDURE: Pleadings - Amendment - Application to amend amended writ and statement of claim - Proposed amendment argued to paint true and complete picture of case - Whether ordinary amendment application or application made at eve and upon commencement of trial - Applicable test - Whether test propounded in Yamaha Motor Co Ltd v. Yamaha (M) Sdn Bhd & Ors applied - Whether test propounded in Hong Leong Finance Bhd v. Low Thiam Hoe and Another Appeal applied - Rules of Court 2012, O. 20 rr. 1 & 3
Yusrin Faidz Yusoff JC
ARTICLESLNS Article(s)
LEGISLATION HIGHLIGHTSPrincipal Acts
Amending Acts
PU(A) PU(B) Legislation Alert Updated
Revoked
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