HAMZAN BINTI HAMZAH v 1. ) DR AHMAD ZUL FIKRI B MOHAMAD 2. ) DR MARDHIAH BT MD ASHARI 3. ) DR RUHANA BT BAKRI 4. ) KERAJAAN MALAYSIA

Case Significance

Illustrates the interaction between limitation and the summary striking-out jurisdiction under Order 18 rule 19 of the Rules of Court 2012: where a claim is plainly time-barred, a defendant may have the action struck out at the threshold rather than waiting for trial, a time-barred claim disclosing no reasonable cause of action and its continuation being an abuse of process.

This High Court decision at Kota Bharu concerns the striking out of a medical-negligence claim on the ground of limitation. The plaintiff had sued three doctors and the Government of Malaysia in respect of medical negligence alleged to have occurred during a series of medical treatments she received at a public hospital in Kota Bharu. The defendants applied under Order 18 rule 19(1)(a), (b) and/or (d) of the Rules of Court 2012 to strike out the writ and statement of claim. The decisive point was limitation. A defence of limitation, once it plainly applies on the face of the claim, is a complete defence, and it entitles a defendant to apply to strike out the action as frivolous, vexatious or an abuse of the process of the court, because there is no purpose in allowing a claim that is bound to fail on limitation to proceed to trial. The court was satisfied that the plaintiff's claim was caught by limitation and that the striking-out grounds were engaged, and it allowed the defendants' application, striking out the writ and statement of claim with costs of RM5,000 payable by the plaintiff subject to the allocatur fee. The plaintiff appealed to the Court of Appeal. Delivered by Mohd Rosli bin Yusoff J, the judgment is a useful illustration of the interaction between limitation and the summary striking-out jurisdiction: where a claim is plainly time-barred, a defendant need not wait until trial to raise limitation as a defence but may invoke Order 18 rule 19 to have the action struck out at the threshold, since a time-barred claim discloses no reasonable cause of action capable of succeeding and its continuation would be an abuse of process. The decision underscores that limitation in a medical-negligence action runs from the accrual of the cause of action and is not defeated by the mere fact that the claim is arguable on its merits, so that a plaintiff who sues outside the limitation period faces summary termination regardless of the strength of the underlying negligence allegations.