VIJAYAKUMAR A/L RAJENDRAM v JOHNSON & JOHNSON SDN. BHD. PIHAK TERKILAN Universiti Malaya (UM)

Case Significance

A bid to try limitation and fraudulent concealment as preliminary issues in a hip-implant product-liability claim, dismissed as misconceived because those issues were entangled with disputed facts and expert evidence.

This High Court decision concerns an application under Order 33 rule 2 of the Rules of Court 2012 to have certain issues determined as preliminary issues, in a medical-negligence and product-liability action arising from a hip implant. The plaintiff had undergone a right hip replacement in 2008 and alleged that the implant caused metallosis — a reaction to metal debris — which later became the subject of a global recall. The application sought to determine, in advance of trial, questions of limitation under sections 6(1)(a) and 29 of the Limitation Act 1953, together with the related issues of fraudulent concealment and the date of injury.

Order 33 rule 2 allows a court to try an issue separately where doing so may dispose of the case or save time and cost, but it is appropriate only where the issue is a discrete, largely legal one that can be determined cleanly on its own. The Court examined whether the proposed issues met that description. It concluded that they did not: limitation here could not be disentangled from disputed questions of fact and expert medical evidence — when the injury manifested, when the plaintiff had the requisite knowledge, and whether there had been fraudulent concealment under section 29 that postponed the running of time — all of which were bound up with the merits of the negligence and defect allegations and required full ventilation at trial. To hive them off would risk piecemeal adjudication rather than avoid it.

The Court held that the application was misconceived and dismissed it, awarding the plaintiff costs of RM5,000. The judgment is a useful illustration of the limits of the preliminary-issue procedure under Order 33 rule 2, and in particular of why limitation intertwined with fraudulent concealment and expert evidence in a medical-product case is unsuitable for separate determination and must be resolved at trial with the full factual matrix before the court.