JULIAT, KAUR & ASSOCIATES

ADVOCATES AND SOLICITORS

SHARON JULIAT SELVANATHAN
RASHWINDER KAUR
LL.B (Hons) MMU Suite 04-05, Level 4, Menara Sunshine,
LL.B (Hons) MMU No. 12, Jalan Ngee Heng,
80000 Johor Bahru, Johor.
Tel: 07-2412576
Fax: 07-2219870
Email: juliatkaur@gmail.com

Our Ref. : JKA/UCV4612/TRI20202021/jka

Your Ref. : TQ2_Topic 1_Week 3
Date : 20.07.2020

RE: PROBLEM SOLVING AND CASE ANALYSIS

For Question 2, the plaintiffs’ cause of action against the defendant is based on the torts of
negligence whereby the plaintiff alleges that they have suffered losses and damages as a
result of road accident caused by the defendant on 21 May 1998. In this regard, the plaintiff
have filed a Statement of Claim on 22 May 2004. The appellant appeals to the dismissal of its
application to strike out the plaintiffs’ writ and statement of claim on the grounds that it is
time barred on 20 May 2004.

The question posed is whether the appeal of the defendants to strike out the plaintiff’s
statement of claim dated 22 May 2004 due to it being time barred can be allowed. With
regards to this, two subsequent issues should be taken into consideration.

First and primordial issue is whether there is a cause of action for the plaintiffs to bring a
claim against the defendant. ‘Cause of action’ has been defined as meaning simply a factual
situation the existence of which entitles one person to obtain from the court a remedy against
another person, according to the case of Letang v Cooper. The phrase has been held from the
earliest time to include every fact which is material to be proved to entitle the plaintiff to
succeed, and every fact which the defendant would have a right to traverse.

In the Malaysian case of Credit Corp (M) Bhd v Fong Tak Sin, it was established that the
cause of action normally accrues when there is in existence a person who can sue and another
who can be sued and when all the facts have happened which are material to be proved to
entitle the plaintiff to succeed.

Contingent upon this as to whether there is a cause of action for the second and the third
plaintiffs to bring a claim against the defendant, reference can be made to the Limitation Act.
For the purposes of the Limitation Act 1953 (LA), a person is deemed to be under a
disability while he is an infant. The same is also provided under O 76 r 1 of the Rules of
Court 2012 (ROC).

According to Section 3 of the Interpretations Acts 1948 and 1967, ‘Infant’ has the same
meaning as ‘minor’, and a ‘minor’ is a person who has not attained the age of majority
prescribed by the law applicable to him. In Malaysia, the age of majority is 18 years, in
accordance with Section 2 of the Age of Majority Act 1971. Under O 76 r 1 of the ROC,
An infant may commence an action through his next friend.

In the present case, the second and third plaintiffs were infants at the time of the accident and
also have suffered from injuries due to the negligence of the defendant. Under O 76 r 1 of
the ROC, read together with Section 3 of the Interpretation Acts and Section 2 of the Age
of Majority Act, the second and the third plaintiff may commence an action through their
next friend.

Applying the principle of Letang v Cooper and Credit Corp (M) Bhd v Fong Tak Sin to
the present case, the relevant date is 21 May 1998, when there existed the person in existence
who can sue, that is the plaintiffs, the person in existence who can be sued, the defendant, and
the facts to be proved by the plaintiffs to entitle them to succeed in the action. Hence, there is
a cause of action for the plaintiffs to bring an action against the defendant.

The second and more trivial issue in this case is whether the Statement of Claim dated 22
May 2004 and filed on the same date was time barred.

The period of limitation is six years from the date on which the cause of action accrued for
an action founded on a contract or on tort, for an action to enforce a recognisance, for an
action to enforce an award, and for an action to recover any sum recoverable by virtue of any
written law, other than a penalty or forfeiture or a sum by way of penalty or forfeiture. This is
in accordance with Section 6(1) of the LA.

In the case of Ayob bin Salleh v AmGeneral Insurance Bhd & Anor [2015] 11 MLJ 301,
in so far as the issue of limitation is concerned, the position in law is that time begins to run
from the earliest point of time when the plaintiff could commence an action. The principle in
this regard was succinctly stated by the Federal Court in Nadefinco Ltd v Kevin
Corporation Sdn Bhd [1978] 2 MLJ 59. According to the case of Parkson Corp Sdn Bhd
v Fazaruddin bin Ibrahim [2011] 2 MLJ 46, a claim that is time barred ought to be struck
out.

Applying the principle in the case of Ayob bin Salleh v AmGeneral Insurance Bhd to the
current case, the time begins to run from the instance the road accident was caused by the
defendant, which was on 21 May 1998. This date is the earliest point of time when the
plaintiffs could commence an action.

Section 6(1) of the LA clearly spells out that causes of action founded on contract and tort is
time-barred after the expiration of six(6) years from the date on which the cause of action
accrued. In calculating the 6 years in the current case, the period is from 21 May 1998 until
20 May 2004. Hence, the cause of action of the plaintiffs brought on 22 May 2004 is clearly
time-barred.

By the virtue of the principle in the case of Parkson Corp Sdn Bhd v Fazaruddin bin
Ibrahim, the claim of the plaintiffs which is time barred ought to be struck out. Hence,
allowing the appeal of the defendant, the writ and statement of claim dated 22 May 2004 can
be struck out.

Next, we are required to find the reasons of judgments on two cases. First to be discussed is
the case of Putri Ayu bt Ismail & Anor v Raulammah a/p Nooraiah (lawful wife suing as
a dependent and beneficiary of the estate of Ramesh a/l Rethinam and as representative
of all dependents of Ramesh a/l Rethinam) [2016] MLJU 298.

This was an appeal which touches on the issue of recovery of damages for loss of earnings,
which was derived from an illegal source of income. It is about the defence of illegality or
also known as the maxim of ex turpi causa non oritur actio. This case was a dependency
claim brought by the Respondent, in which the Sessions Court awarded a sum of RM61,200
to her. The Respondent’s cause of action was based on Section 7 of the Civil Law Act 1956.
However, the issue now is whether the Respondent can recover damages for loss of earnings
by her late husband when the income derived was from an illegal source, which originated
from a breach of licensing conditions.

Here, the judge stated that the maxim ex turpi causa non oritur actio is based upon policy
considerations, and that no matter what, an illegal act is illegal regardless whether it was a
minor act or not. The court has no power of discretion on deciding whether or not to allow
such claims based on illegality. The court in this case was also bound by stare decisis on the
case of Chua Kim Suan & Teoh Teik Nam (Suing as Administratric and Administrator
Respectively of the Estate of Teoh Tek Lee, Deceased) v Government of Malaysia, where it
was said that what is illegal is illegal without exception. If the court tries to make a
distinction between degrees of criminality would lead to confusion and uncertainty which is
definitely not the objectives of the legal process.

The only solution for future cases similar to this now would be the amendment of the Civil
Law Act 1956 to make the position on such recoverability clear. Thus, in the end, applying
the maxim stated above, since the income brought by the deceased’s husband was brought on
illegal grounds, it is concluded by the court that the dependency claim to be set aside and the
appeal was allowed with costs.

The second case in discussion is the case of Suzana bt Md Aris (claiming as administrator
of the estate and a dependant of Mohd Anuar bin Sharip,deceased) v DSP Ishak bin
Hussain & Ors, [2011] 1 MLJ 107. Here, the deceased, who is the Plaintiff’s husband, was
convicted on suspicion of being a drug addict. He vomited blood and complained of stomach
ache and later on passed away because of severe lung infection arising from ‘casseous
necrosis’ that is to say tuberculosis for at least 2 to 3 months before his death. This happened
while he was in police custody. The Plaintiff then brought an action, suing on behalf of the
late husband’s estate as well as being a dependant of the deceased. There were other two
dependents, who were their sons, aged 3 and 9. It was stated by the medical practitioner that
this was not a terminal disease, and if the police had acted reasonably and sent the deceased
to the hospital earlier instead of normal clinics, he could have been treated and saved.

On the issue of damages, it was stated that a judge would be slow to disturb the assessment of
damages of a registrar made unless it can be shown that the assessment was based on wrong
principles or that the award had been wrongly excessive or woefully inadequate. Here, the
calculation of damages was considered as a very careful and comprehensive calculation, but
there were some additional damages to be rewarded.

Here, an additional RM200,000 was awarded for each of the two sons as dependants of the
deceased, as it was said that a total of RM400,000 was sufficient for the sustenance, support
and education of the deceased’s two children as his dependants based on his station, stature,
and status in society for bringing up these 2 boys in Selangor. Aggravated damages of
RM500,000 were also awarded even though the plaintiff did not plead it, but instead pleaded
general damages which covered this as well. Exemplary damages were also awarded as it was
based on the oppressive, arbitrary and unconstitutional action by the servants of the
government because of the fact that the deceased was deprived of his life and liberty of not
getting treatment when he was ill in police custody.