WATINAH BINTI MAD KARTAM vs DR. K.S. SARVANANTHAR (MJLR 2009b15) Rahman Sebli 4/9/2009,SS (Negligence,Limitation,Civil Procedure)
MALAYSIA
IN THE HIGH COURT IN SABAH AND SARAWAK
AT KOTA KINABALU
CIVIL SUIT NO. K22-189 OF 2008
BETWEEN WATINAH BINTI MAD KARTAM .. PLAINTIFF
AND DR. K.S. SARVANANTHAR .. DEFENDANT
JUDGMENT
This is a medical negligence action. The plaintiff was a patient of the defendant. Sometime in 1995, the plaintiff had given birth to her fourth child at Kota Kinabalu Specialist Centre (the KKSC) and the said birth and delivery was attended to by the defendant.
In 1998, the plaintiff was having her fifth pregnancy. On 1.7.1998 she was in labour and was admitted to the KKSC where a Lower Segment Caesarian Section (the LSCS) was performed on her by the defendant. She was discharged on 4.7.1998. On 19.8.1998 she went to Klinik Sarva for post natal review and was attended to by the defendant.
About 3 years later the plaintiff began to experience episodes of abdominal pain and discomfort which was colicky in nature and with nausea. As time went by the plaintiff’s pain became worse and occurred more frequently. Her abdomen was also growing in size.
On 13.5.2007 the plaintiff went to Poliklinik Prisma where she was diagnosed with a 26 week size abdominal growth. She was then referred to the Obstetrics and Gynaecology clinic of Hospital Likas Kota Kinabalu. On 24.9.2007 she was provisionally diagnosed with a huge ovarian tumour and was admitted to Hospital Likas on 4.11.2007 with severe abdominal pain and nausea. An abdominal examination on the plaintiff revealed a 34 week sized foreign mass in her abdomen.
A laparotomy surgery was done on her on 14.11.2007. A foreign object in the form of an abdominal pack was found in her abdomen. It was this abdominal pack that had caused the plaintiff’s pain and suffering thoughout the years. On 19.11.2007 the plaintiff was discharged well from Hospital Likas.
It is the plaintiff’s pleaded case that the abdominal pack had been left inside the plaintiff’s abdomen during the LSCS performed by the defendant on 1.7.1998 as the plaintiff did not have any other surgery or operation after the said LSCS. She filed the present suit against the defendant on 13.11.2008.
The defendant is applying is to strike out the plaintiff’s claim under Order 18 rule 19 (1) of the Rules of the High Court, 1980 (the Rules). The application is made under all four paragraphs of Order 18 rule 19 (1) of the Rules but since Order 18 rule 19 (2) prohibits the admission of evidence in an application under paragraph (a), I shall disregard all affidavits filed by the defendant in so far as they relate to the application under that paragraph.
The principles applicable in an application of this nature is well settled and I do not propose to deal with them in this judgment save to say that whether a case is fit for striking out depends on the facts of each particular case as disclosed in the pleadings and the affidavit evidence.
The only basis of the defendant’s application is that the plaintiff’s claim is statute barred. The question is when does the cause of action arise? The defendant says the cause of action would have taken place on 19.8.1998, the date the plaintiff had her post natal review at the defendant’s clinic and was reported to be well and had no complaints.
According to the defendant the limitation period expired on 19.8.2003 (paragraph 10 of the defendant’s affidavit in support). Learned counsel for the defendant in his written submission on the other hand submitted that the plaintiff’s claim would be time barred by 2001.
Item 94A of the Sabah Limitation Ordinance 1953 (the SLO) prescribes a time limit of 3 years in an action for personal injury. This action according to the defendant is way out of time as it was only filed on 13.11.2008.
The plaintiff is relying on section 18 of the SLO to argue that time only began to run after the plaintiff became aware of the defendant’s fraudulent act of concealing from her the fact that an abdominal pack had been left inside her abdomen during the LSCS done by the defendant on 1.7.1998. Section 18 of the SLO provides:
“When any person having a right to institute a suit has by means of fraud been kept from the knowledge of such right or of the title on which it is founded, or where any document necessary to establish such right has been fraudulently concealed from him, the time limit for instituting a suit –
(a) Against the person guilty of the fraud or accessory thereto; or
(b) Against any person claiming through him otherwise than in good faith and for a valuable consideration,
shall be computed from the time when the fraud first became known to the person injuriously affected thereby or, in the case of the concealed document, when he first had the means of producing it or compelling its production.”
According to the plaintiff she could not have known about the defendant’s negligent act within the limitation period of 3 years. It was only after her abdomen was cut open on 13.11.2007 at Hospital Likas (nine years after the LSCS was done) that the plaintiff discovered that a foreign object had been left inside her stomach. In paragraph 7 of her affidavit in opposition this is what the plaintiff avers:
“I also aver that at no time during the post natal review did the Defendant ever inform me that he had left behind or put an abdominal pack inside my abdomen. In fact, the Defendant had informed me during the post natal review that was well and that there was nothing wrong with me. I fully believed the Defendant as he was my doctor. The Defendant is also a renowned gynaecologist in Kota Kinabalu.”
Therefore according to the plaintiff time begins to run from 14.11.2007 and not earlier. In Yong & Co v Wee Hood Teck Development Corporation [1984] 2 MLJ 39 the appellant was a firm of solicitors who were sued for negligence and breach of contract for failing to charge the security in favour of the respondents. The appellants had charged the security to Hock Hua Bank on 4.7.1968 instead of to the respondents. The respondents only came to know about this on 30.11.1974. The trial court found in favour of the respondents and the decision was upheld on appeal to the Supreme Court. In dealing with section 18 of the Sarawak Limitation Ordinance which is in pari materia with section 18 of the SLO the Supreme Court said:
“The limitation period under item 76 of the Schedule to the Ordinance is three years computed from the time when the fraud became known to the party wronged. We agree with the learned Judge that the Respondents discovered the fraud in November 30 1974 i.e. within the three year limit from the time of discovery. The respondents were well within time and are therefore not barred by limitation.”
As to the meaning of “fraud” in section 18 of the Sarawak Limitation Ordinance the court held:
“In our view, fraud in this case is not limited to the common law fraud in which the action being one of deceit and it is necessary to prove actual fraud by showing that the false representation has been made knowingly or without belief in its truth or recklessly without caring whether it is true or false .. It extends to equitable or constructive fraud in which the concealment does not involve any dishonesty and no degree of moral turpitude is necessary to establish fraud within the section. The phrase covers conduct which having regard to some special relationship between the parties concerned, is an unconscionable thing for the one to do towards the other.”
In Applegate v Moss [1971] 1 QB 406 the facts are these. By contracts made in 1957, the defendant agreed to build two houses for the plaintiffs. The contracts provided that they should be built in accordance with the plans and specifications. The plaintiffs moved into the houses in 1957. In 1965, one of the plaintiffs wished to sell his house and experts for the intended purchasers discovered that the foundation of the house was so defective that the house was unsafe to live in. the plaintiffs brought an action outside the 6 year limitation period. The plaintiffs claimed that their rights of action were concealed by the fraud of the defendant or his agent within the meaning of section 26 (b) of the English Limitation Act 1939 so that time did not begin to run until the date in 1965 when they discovered the fraud. The court held in favour of the plaintiffs.
The defendant however argues that the plaintiff cannot rely on section 18 of the SLO as it is not pleaded. The plaintiff’s answer is that she has filed an application for amendment of the pleadings to include the particulars of fraud committed by the defendant.
In Lim Koon Ee v Mohd Saad [1962] 28 MLJ 242 Suffian J (as he then was) even allowed an amendment of the statement of defence to include a counter claim before delivery of judgment and after completion of the hearing.
In any event it is trite law that an amendment of the pleadings should always be allowed provided:
(a) there is bona fide on the part of the applicant;
(b) they cause no prejudice to the other side which cannot be compensated with costs; and
(c) they are not such as to turn a suit of one character into a suit of another and inconsistent character.
Thus although the application for amendment was made after the striking out application was filed it does not bar the plaintiff from raising the issue of fraud. To accede to the defendant’s argument would be to shut out the plaintiff’s claim even before she could prove her case.
Having regard to the facts as disclosed in the pleadings and the affidavit evidence I am of the view that this is not a fit and proper case for summary disposal under Order 18 rule 19 (1) of the Rules.
In the circumstances the application (Enclosure 15) is dismissed with costs, to be taxed unless agreed.
(DATO’ ABDUL RAHMAN SEBLI)
Judicial Commissioner High Court Kota Kinabalu
Dated: 4th September 2009.
For the Defendant: Eva Lo of Messrs Wong & Shim.
For the Plaintiff: Rizwan Borhan of Messrs Rahim
Abdullah & Co.
IN THE HIGH COURT IN SABAH AND SARAWAK
AT KOTA KINABALU
CIVIL SUIT NO. K22-189 OF 2008
BETWEEN WATINAH BINTI MAD KARTAM .. PLAINTIFF
AND DR. K.S. SARVANANTHAR .. DEFENDANT
JUDGMENT
This is a medical negligence action. The plaintiff was a patient of the defendant. Sometime in 1995, the plaintiff had given birth to her fourth child at Kota Kinabalu Specialist Centre (the KKSC) and the said birth and delivery was attended to by the defendant.
In 1998, the plaintiff was having her fifth pregnancy. On 1.7.1998 she was in labour and was admitted to the KKSC where a Lower Segment Caesarian Section (the LSCS) was performed on her by the defendant. She was discharged on 4.7.1998. On 19.8.1998 she went to Klinik Sarva for post natal review and was attended to by the defendant.
About 3 years later the plaintiff began to experience episodes of abdominal pain and discomfort which was colicky in nature and with nausea. As time went by the plaintiff’s pain became worse and occurred more frequently. Her abdomen was also growing in size.
On 13.5.2007 the plaintiff went to Poliklinik Prisma where she was diagnosed with a 26 week size abdominal growth. She was then referred to the Obstetrics and Gynaecology clinic of Hospital Likas Kota Kinabalu. On 24.9.2007 she was provisionally diagnosed with a huge ovarian tumour and was admitted to Hospital Likas on 4.11.2007 with severe abdominal pain and nausea. An abdominal examination on the plaintiff revealed a 34 week sized foreign mass in her abdomen.
A laparotomy surgery was done on her on 14.11.2007. A foreign object in the form of an abdominal pack was found in her abdomen. It was this abdominal pack that had caused the plaintiff’s pain and suffering thoughout the years. On 19.11.2007 the plaintiff was discharged well from Hospital Likas.
It is the plaintiff’s pleaded case that the abdominal pack had been left inside the plaintiff’s abdomen during the LSCS performed by the defendant on 1.7.1998 as the plaintiff did not have any other surgery or operation after the said LSCS. She filed the present suit against the defendant on 13.11.2008.
The defendant is applying is to strike out the plaintiff’s claim under Order 18 rule 19 (1) of the Rules of the High Court, 1980 (the Rules). The application is made under all four paragraphs of Order 18 rule 19 (1) of the Rules but since Order 18 rule 19 (2) prohibits the admission of evidence in an application under paragraph (a), I shall disregard all affidavits filed by the defendant in so far as they relate to the application under that paragraph.
The principles applicable in an application of this nature is well settled and I do not propose to deal with them in this judgment save to say that whether a case is fit for striking out depends on the facts of each particular case as disclosed in the pleadings and the affidavit evidence.
The only basis of the defendant’s application is that the plaintiff’s claim is statute barred. The question is when does the cause of action arise? The defendant says the cause of action would have taken place on 19.8.1998, the date the plaintiff had her post natal review at the defendant’s clinic and was reported to be well and had no complaints.
According to the defendant the limitation period expired on 19.8.2003 (paragraph 10 of the defendant’s affidavit in support). Learned counsel for the defendant in his written submission on the other hand submitted that the plaintiff’s claim would be time barred by 2001.
Item 94A of the Sabah Limitation Ordinance 1953 (the SLO) prescribes a time limit of 3 years in an action for personal injury. This action according to the defendant is way out of time as it was only filed on 13.11.2008.
The plaintiff is relying on section 18 of the SLO to argue that time only began to run after the plaintiff became aware of the defendant’s fraudulent act of concealing from her the fact that an abdominal pack had been left inside her abdomen during the LSCS done by the defendant on 1.7.1998. Section 18 of the SLO provides:
“When any person having a right to institute a suit has by means of fraud been kept from the knowledge of such right or of the title on which it is founded, or where any document necessary to establish such right has been fraudulently concealed from him, the time limit for instituting a suit –
(a) Against the person guilty of the fraud or accessory thereto; or
(b) Against any person claiming through him otherwise than in good faith and for a valuable consideration,
shall be computed from the time when the fraud first became known to the person injuriously affected thereby or, in the case of the concealed document, when he first had the means of producing it or compelling its production.”
According to the plaintiff she could not have known about the defendant’s negligent act within the limitation period of 3 years. It was only after her abdomen was cut open on 13.11.2007 at Hospital Likas (nine years after the LSCS was done) that the plaintiff discovered that a foreign object had been left inside her stomach. In paragraph 7 of her affidavit in opposition this is what the plaintiff avers:
“I also aver that at no time during the post natal review did the Defendant ever inform me that he had left behind or put an abdominal pack inside my abdomen. In fact, the Defendant had informed me during the post natal review that was well and that there was nothing wrong with me. I fully believed the Defendant as he was my doctor. The Defendant is also a renowned gynaecologist in Kota Kinabalu.”
Therefore according to the plaintiff time begins to run from 14.11.2007 and not earlier. In Yong & Co v Wee Hood Teck Development Corporation [1984] 2 MLJ 39 the appellant was a firm of solicitors who were sued for negligence and breach of contract for failing to charge the security in favour of the respondents. The appellants had charged the security to Hock Hua Bank on 4.7.1968 instead of to the respondents. The respondents only came to know about this on 30.11.1974. The trial court found in favour of the respondents and the decision was upheld on appeal to the Supreme Court. In dealing with section 18 of the Sarawak Limitation Ordinance which is in pari materia with section 18 of the SLO the Supreme Court said:
“The limitation period under item 76 of the Schedule to the Ordinance is three years computed from the time when the fraud became known to the party wronged. We agree with the learned Judge that the Respondents discovered the fraud in November 30 1974 i.e. within the three year limit from the time of discovery. The respondents were well within time and are therefore not barred by limitation.”
As to the meaning of “fraud” in section 18 of the Sarawak Limitation Ordinance the court held:
“In our view, fraud in this case is not limited to the common law fraud in which the action being one of deceit and it is necessary to prove actual fraud by showing that the false representation has been made knowingly or without belief in its truth or recklessly without caring whether it is true or false .. It extends to equitable or constructive fraud in which the concealment does not involve any dishonesty and no degree of moral turpitude is necessary to establish fraud within the section. The phrase covers conduct which having regard to some special relationship between the parties concerned, is an unconscionable thing for the one to do towards the other.”
In Applegate v Moss [1971] 1 QB 406 the facts are these. By contracts made in 1957, the defendant agreed to build two houses for the plaintiffs. The contracts provided that they should be built in accordance with the plans and specifications. The plaintiffs moved into the houses in 1957. In 1965, one of the plaintiffs wished to sell his house and experts for the intended purchasers discovered that the foundation of the house was so defective that the house was unsafe to live in. the plaintiffs brought an action outside the 6 year limitation period. The plaintiffs claimed that their rights of action were concealed by the fraud of the defendant or his agent within the meaning of section 26 (b) of the English Limitation Act 1939 so that time did not begin to run until the date in 1965 when they discovered the fraud. The court held in favour of the plaintiffs.
The defendant however argues that the plaintiff cannot rely on section 18 of the SLO as it is not pleaded. The plaintiff’s answer is that she has filed an application for amendment of the pleadings to include the particulars of fraud committed by the defendant.
In Lim Koon Ee v Mohd Saad [1962] 28 MLJ 242 Suffian J (as he then was) even allowed an amendment of the statement of defence to include a counter claim before delivery of judgment and after completion of the hearing.
In any event it is trite law that an amendment of the pleadings should always be allowed provided:
(a) there is bona fide on the part of the applicant;
(b) they cause no prejudice to the other side which cannot be compensated with costs; and
(c) they are not such as to turn a suit of one character into a suit of another and inconsistent character.
Thus although the application for amendment was made after the striking out application was filed it does not bar the plaintiff from raising the issue of fraud. To accede to the defendant’s argument would be to shut out the plaintiff’s claim even before she could prove her case.
Having regard to the facts as disclosed in the pleadings and the affidavit evidence I am of the view that this is not a fit and proper case for summary disposal under Order 18 rule 19 (1) of the Rules.
In the circumstances the application (Enclosure 15) is dismissed with costs, to be taxed unless agreed.
(DATO’ ABDUL RAHMAN SEBLI)
Judicial Commissioner High Court Kota Kinabalu
Dated: 4th September 2009.
For the Defendant: Eva Lo of Messrs Wong & Shim.
For the Plaintiff: Rizwan Borhan of Messrs Rahim
Abdullah & Co.
