[2023] CLJU 2706 Legal Network Series

IN THE HIGH COURT OF MALAYA AT KUALA LUMPUR

IN THE FEDERAL TERRITORY OF KUALA LUMPUR
[CIVIL SUIT NO. : WA-22NCVC-486-09/2022]

BETWEEN

1. NADARAJAH LINGAM A/L

SINNADURAI
2. THANASELAN A/L
NADARAJAH LINGAM
3. KISHOKUMAR A/L
NADARAJAH LINGAM
4. LOGESHWARAN A/L
NADARAJAH LINGAM
5. LANESWARAN A/L
NADARAJAH LINGAM
... PLAINTIFFS

AND

1. DATO SRI DR. SURESH

RAJ LACHMANAN
2. DR. SARASPATHEY
NACHIMUTHU
3. DR. ASSUNTA DAVADASS
4. DR. KUPPUSAMY IYAWOO
5. DR. RAIHANAH ABDUL
KHALID
6. WONG PIK LIN
7. ASSUNTA HOSPITAL (M)
SDN BHD (17026-H)
... DEFENDANTS

GROUNDS OF JUDGMENT

INTRODUCTION

1
[2023] CLJU 2706 Legal Network Series

[1] This is an application by the Plaintiffs to amend their Statement of

Claim (Enclosure 20) pursuant to Order 20 Rule 5 and Order 92 Rule
4 of the Rules of Court 2012 (ROC). The first application to amend
the Statement of Claim (SOC) was filed on 28.11.2022 (Enclosure 5)
which Order was granted on 12.01.2023.

BRIEF FACTS

[2] The Plaintiffs commenced this action against the Defendants for tort
of negligence arising from the demise of Madam Shanti A/P
Ponnudurai (Deceased) on 28.8.2016. The Deceased was under the
treatment and care of the Defendants from 12.8.2016 to 28.8.2016.

[3] The Deceased was the wife of the 1 st Plaintiff and mother of the 2 nd to
the 5 th Plaintiffs. The basis of Enclosure 20 is for amendment of the
SOC on dependency claim under section 7 of Civil Law Act 1956
(CLA) and administrator of the Deceased’s estates under section 8 of
CLA.

[4] The Plaintiffs had initially filed the Writ of Summons (Enclosure 1)
and SOC (Enclosure 2) on 27.8.2022 where the Plaintiffs instituted
this action against the Defendants in their personal capacity allegedly
suffering from psychiatric injuries due to the demise of the Deceased
and not as dependents under section 7 or on behalf of the estate under
section 8 of CLA.

[5] Subsequently, on 28.11.2022, the Plaintiffs filed an application to

amend the Statement of Claim (Enclosure 5), which was granted by
this Court on 12.01.2023 (Enclosure 11), wherein the Plaintiffs
included additional facts to the claim which were also in their personal
capacity

[6] Thereafter, on 9.3.2023, the Plaintiffs have again filed an application

to amend the SOC which is Enclosure 20 by attaching the Proposed
Amended Statement of Claim. The proposed amendments may be
summarized as follows-

2
[2023] CLJU 2706 Legal Network Series

a) The addition of the 1 st Plaintiff in his capacity as the

administrator of the estate of the Deceased;

b) The addition of a cause of action on behalf of the estate of the

Deceased; and

c) The insertion of new reliefs on behalf of the estate of the

Deceased.

(Proposed Amendments)

[7] The chronology of the case can be summarized in the following table-

Subject Date

Deceased’s date of demise 28.8.2016

Grant of Letters of Administration 11.5.2017

Writ of Summons and original 27.8.2022

Statement of Claim filed

Application to Amend the Statement of 28.11.2022

Claim (The First Amendment) (Encl.
5) filed

Order for Enclosure 5 (Encl. 11) 12.01.2023

Application to Amend the Statement of 9.3.2023

Claim (The Second Amendment)
(Encl. 20) filed

ANALYSIS AND FINDINGS

[8] An application for amendment of a writ or pleadings is not a matter of

a right of a party but is left to the judicial discretion of the Court
depending on the circumstances of each case (See Raphael Pura v.
Insas Bhd & Anor [2003] 1 MLJ 513).

3
[2023] CLJU 2706 Legal Network Series

[9] It is an established principle that the courts have a wide discretion

whether to allow an amendment or not (See Ismail bin Ibrahim v. Sum
Poh Development Sdn Bhd & Anor [1988] 3 MLJ 348).

[10] Litigants should not come to Court and thereafter amend their
pleadings as many times at their mercy. For the purpose of good
governance, the Courts need to dispose cases justly, expeditiously and
economically. As such, it is important for the Plaintiffs t o provide a
sufficient explanation as to why they have to amend the SOC for the
second time after the period of approximately four (4) months.

[11] Accordingly, Order 20 Rule 5 of ROC stipulates for the amendment of

writ or pleadings with leave of the Court. It provides a discretion for
the Court to allow leave to amend pleadings which must be exercised
judicially (see Yamaha Motor Co. Ltd. v. Yamaha (M) Sdn. Bhd. & Ors
[1982] 1 MLRA 417; [1983] 1 MLJ 213). Such amendments should not
cause injustice to the other party. The three (3) basic questions to ask
are-

(a) whether the application was bona fide;

(b) whether the prejudice caused to the other party could be

compensated by costs; and

(c) whether the amendments would not in effect turn the suit from
one character into another and inconsistent character.

[12] In Government of Malaysia v. Mohamed Amin Hassan [1984] 1 MLRA

793 (FC) it was held-

“(1) What the respondent was trying to do was to add himself as a

plaintiff and pursuing a claim peculiar to himself. That claim was
distinct from the claim he instituted as administrator of the deceased's
estate. This was not a case of altering a party suing in his
representative capacity into his personal capacity. It was a case of
adding a new party to the original suit. This was not permissible under

4
[2023] CLJU 2706 Legal Network Series

any provision of the O. 15 r 1 of the SCR, particularly when the period

of limitation affecting the proposed plaintiff had expired. The court
had no power to resuscitate an action which must fail in limine upon
a plea of limitation. The court should not try to extend O. 15 r 1 of the
SCR beyond their natural and proper limit in order to supply omissions
or defects nor strain them to the justice of an individual case.”.

[13] Based on the case of Government of Malaysia v. Mohamed Amin

Hassan (supra), this Court finds that Enclosure 20 seeks to add a new
party from a dependency claim under Section 7 CLA into an estate
claim under Section 8 CLA which is an entirely new cause of action
which would turn this suit from one character (a claim made in
personal capacity) into a suit of another (an Estate Claim) and is an
inconsistent character.

[14] It is also pertinent to note that the 1 st Plaintiff had been granted the
letters of administration on behalf of the Deceased’s estate on
11.5.2017, more than 5 years prior to the commencement of the
Plaintiffs’ original action against the Defendants. The 1 st Plaintiff’s
reason for the delay is that he had “overlooked” the letters of
administration and had only recently received the same from the
“solicitors who handled the application for the letters of
administration”. It is thus, inconceivable that the 1 st Plaintiff elected
not to retrieve the letters of administration for almost 5 years.

[15] Relatively, there was no valid justification from the Plaintiffs to

explain the delay despite the fact that the Letter of Administration of
the Estates was granted over 5 years ago. It was also not explained as
to why it was not even filed during the first amendment of the SOC.
Further, Enclosure 20 was only filed after the limitation perio d has set
in, of which the Plaintiff has failed to provide any reasonable
explanation for the delay.

[16] Accordingly, as the Deceased passed away on 28.8.2016, it is clear

that the dependency claim is time barred as it must be brought within

5
[2023] CLJU 2706 Legal Network Series

3 years from the date of death as provided under section 7 of CLA.

Section 7(5) CLA provides-

“(5) Not more than one action shall be brought for and in respect of
the same subject matter of complaint, and every such action shall be
brought within three years after the death of the person deceased.”.

[17] In this regard, the Supreme Court in Credit Corporation (M) Bhd v.
Fong Tak Sin [1991] 1 MLJ 409 held-

“An application to add or substitute a new party to an action after the

expiry of the limitation period should not be allowed and this is based
on good and sound principles. The limitation law is promulgated for
the primary object of discouraging plaintiffs from sleeping on their
actions and more importantly to have definite end to litigation. The
rationale of the limitation law should be appreciated and enforced by
courts.”

[18] It is trite law that, outside of the legal ambit provided by Order 20
Rule 5 ROC, amendments to pleadings which seek to add a new party
to proceedings after the expiry of the limitation period are not allowed
(see Government of Malaysia v. Mohamed Amin Bin Hassan (supra).

[19] As such, the Plaintiffs cannot bring a claim on behalf of the Deceased’s
estate by way of the proposed amendments pursuant to Order 20 Rule
5 ROC after the expiry of the limitation period.

[20] In addition, the Plaintiff’s claim for exemplary damages, loss of

expectation of life and loss of earnings are prohibited by law. Section
8(2) of CLA provides that-

“(2) Where a cause of action survives as aforesaid for the benefit of

the estate of a deceased person, the damages recoverable for the
benefit of the estate of that person-

(a) shall not include any exemplary damages , any damages for
bereavement made under subsection 7(3A), any damages for loss of

6
[2023] CLJU 2706 Legal Network Series

expectation of life and any damages for loss of earnings in respect

of any period after that person’s death “

(Emphasis Added)

[21] It is clear from the statutory provision in section 8(2) CLA, that
exemplary damages are not recoverable in an estate claim (See Hock
Hua Bank Bhd v. Leong Yew Chin [1986] 1 MLRA 225) and in Koperal
Zainal Mohd Ali & Ors v. Selvi Narayan & Anor [2021] 3 MLRA 424,
the Federal Court had expressly held that Section 8(2) CLA 1956 acts
as a complete bar to a claim for exemplary damages by a deceased’s
estate.

[22] Further, in the case of Datuk Seri Khalid Abu Bakar & Ors v. N Indra
P Nallathamby (the administrator of the estate and dependent of
Kugan a/l Ananthan, deceased) & Another Appeal [2014] 6 MLRA
489; [2015] 1 MLJ 353 it was held-

“[28] The rationale behind the existence of ss 7 and 8 of the Civil

Law Act is clearly set out by Salleh Abbas FJ (as he then was) in
Sambu Pernas Construction & Anor v. Pitchakkaran Krishnan [1982]
1 MLRA 143; [1982] 1 MLJ 269; [1982] CLJ (Rep) 299 as follows:

"At common law the death of a person gives rise to two

principles. The first is that the death of any person is not a
civil wrong. Therefore no action can be founded on it although
death may result in pecuniary losses or damages to the
deceased's spouse and children. Lord Ellenborough CJ in
Baker v. Bolton [1808] 1 Camp 493 ruled that "in a civil court
the death of a human being could not be complained of as an
injury." The second principle was that when a person died any
cause of action which was vested either in his favour or against
him at the time of death was buried with him. In other words
the cause of action did not survive the death: "actio personalis
moritur cum persona". The first principle which regarded

7
[2023] CLJU 2706 Legal Network Series

death as not giving rise to any cause of action was rectified by

s. 1 of the Fatal Accidents Acts 1846 to 1959, popularly known
as Lord Campbell's Act whilst the second principle which dealt
with the non-survival of the cause of action was rectified by
the Law Reform (Miscellaneous Provisions) Act 1934. The
provisions of these two UK statutes are now incorporated in ss
7 and 8 of our Civil Law Act 1956. Had it not been for ss 7 and
8 of the Civil Law Act it is clear that the plaintiff could not
have the right to bring the suit, and having acted under these
sections and in particular s. 7, his case must stand and fall on
the basis of these sections.

[29] Sections 7 and 8 of the Civil Law Act thus give rise to two
respective causes of action. Section 7 relates to what is known as "the
dependency claim" where the statutorily recognised dependants of the
deceased can launch a claim for the loss of pecuniary benefits which
would have been provided by the deceased for the support of his
dependants had he not died. Section 8 relates to what is known as
"the estate claim" where all causes of action, save and except what
are prohibited therein, vested in the deceased prior to his death shall
be survived by his personal representatives of the estate. Whatever is
claimed will be for the benefit of the estate.”.

[23] It was also observed that an award for mental pain and suffering for
the dependants are not allowed under section 7 CLA. In Ketua Polis
Negara & Ors v. Nurasmira Maulat bt Jaafar & Ors (minors bringing
the action through their legal mother and next friend Abra bt Sahul
Hamid) and other appeals [2018] 3 MLJ 184 (FC) it was held-

“[96] As s. 7 of the CLA is a provision enabling the specified

dependants of a deceased person who came by his death due to the
wrongful act, neglect or default of another to claim for damages in
their own right to compensate them for loss of support due to such
death, a claim for the pain and suffering of the specified dependants

8
[2023] CLJU 2706 Legal Network Series

(or even of the deceased person himself) is certainly beyond the

purview of the section.

[100] The proviso to subsection 7(3) of the CLA does not allow
damages to be awarded to a parent for being deprived of the services
of a child or to a husband for having been deprived of the services or
society of his wife.

[101] For loss other than pecuniary loss, the only damages that s. 7
of the CLA allows to be claimed are damages for bereavement.
However, such damages can only be awarded to the spouse of a
deceased person or, if he was a minor and never married, his parents.
The sum that can be awarded as damages for bereavement is
RM10,000.00, subject to the power of the Yang di-Pertuan Agong to
vary such sum.”.

[24] Enclosure 20 should not be a ‘tactical manoeuvre’ (see Hong Leong

Finance Bhd v. Low Thiam Hoe & Another Appeal [2015] 8 CLJ 1;
[2016] 3 MLRA 81; [2016] 1 MLJ 301). This Court finds that
Enclosure 20 is not made bona fide and is a tactical manoeuvre to
defeat the period of limitation and the Plaintiffs are attempting to
insert a new party into the proceedings outside of the limitation period.

CONCLUSION

[25] For the foregoing reasons, Enclosure 20 is dismissed with costs subject
to allocatur’s fee.

(SUZANA MUHAMAD SAID)

Judicial Commissioner of the High Court
NCVC 1
Kuala Lumpur.

Date: 31 DECEMBER 2023

9
[2023] CLJU 2706 Legal Network Series

Counsel:

For the plaintiffs - M/s Goban & Co.

For the 1st, 3rd and 4th defendants - M/s Shean Delamore & Co.

For the 2nd defendant - M/s Jayadeep Hari & Jamil

For the 5th defendant - M/s Asbir Hira Singh & Co

For the 6th and 7th defendants - M/s Azim Tunku Farik & Wong

Cases referred to:

Credit Corporation (M) Bhd v. Fong Tak Sin [1991] 1 MLJ 409

Datuk Seri Khalid Abu Bakar & Ors v. N Indra P Nallathamby (the
administrator of the estate and dependent of Kugan a/l Ananthan, deceased)
& Another Appeal [2014] 6 MLRA 489; [2015] 1 MLJ 353

Government of Malaysia v. Mohamed Amin Hassan [1984] 1 MLRA 793 (FC)

Hock Hua Bank Bhd v. Leong Yew Chin [1986] 1 MLRA 225

Hong Leong Finance Bhd v. Low Thiam Hoe & Another Appeal [2015] 8
CLJ 1; [2016] 3 MLRA 81; [2016] 1 MLJ 301

Ismail bin Ibrahim v. Sum Poh Development Sdn Bhd & Anor [1988] 3 MLJ
348

Ketua Polis Negara & Ors v. Nurasmira Maulat bt Jaafar & Ors (minors
bringing the action through their legal mother and next friend Abra bt Sahul
Hamid) and other appeals [2018] 3 MLJ 184 (FC)

Koperal Zainal Mohd Ali & Ors v. Selvi Narayan & Anor [2021] 3 MLRA
424

Lord Ellenborough CJ in Baker v. Bolton [1808] 1 Camp 493

Raphael Pura v. Insas Bhd & Anor [2003] 1 MLJ 513

10
[2023] CLJU 2706 Legal Network Series

Sambu Pernas Construction & Anor v. Pitchakkaran Krishnan [1982] CLJ

(Rep) 299 [1982] 1 MLRA 143; [1982] 1 MLJ 269;

Yamaha Motor Co. Ltd. v. Yamaha (M) Sdn. Bhd. & Ors [1982] 1 MLRA
417; [1983] 1 MLJ 213

11