ZAKIAH BINTI MOHAMAD v 1. ) KETUA POLIS DAERAH KOTA BAHRU, KELANTAN 2. ) KETUA POLIS NEGARA, MALAYSIA 3. ) Pengarah Hospital Raja Perempuan Zainab II 4. ) KEMENTERIAN KESIHATAN MALAYSIA 5. ) Kerajaan Malaysia

Case Significance

Illustrates the pleading requirements for suing the Government in tort under the Government Proceedings Act 1956: a claim that fails to identify the individual tortfeasor whose wrong founds the Government's vicarious liability, and is brought without locus standi, will be struck out.

This decision of the High Court of Malaya at Kota Bharu concerns an application by the defendants to strike out the plaintiff's writ and statement of claim under Order 18 Rule 19(1)(a), (b) and/or (d) of the Rules of Court 2012. The plaintiff had sued a group of public defendants — a District Chief of Police, the Inspector-General of Police, the Director of a government hospital, the Ministry of Health and the Government of Malaysia. The defendants applied to strike the claim out on the grounds that it disclosed no reasonable cause of action, that the plaintiff lacked locus standi to bring the action, and that the action was an abuse of the process of the court.

The court allowed the application. A central defect was the plaintiff's failure to satisfy the requirements of sections 5 and 6 of the Government Proceedings Act 1956 in the way she had framed her suit against the public authorities — in particular, the requirement, where the Government is sued for the tort of its servant or agent, that the individual tortfeasor be identified, so that the Government's vicarious liability is anchored in an identified wrongdoer. The claim as pleaded did not properly name the tortfeasor, and the court found that the plaintiff also lacked the locus standi to maintain the action. In the course of its reasoning the court referred to the procedural mechanism under Order 15 Rule 6A for suing where there is no living person who can be named as a party — for instance, citing the personal representative of a deceased so that the matter may be treated as brought against the estate — to illustrate how the rules cater for the naming of a proper party, a discipline the plaintiff's pleading had not observed. Finding the claim to disclose no reasonable cause of action, to be brought without locus standi, and to be an abuse of process, the court struck out the writ and statement of claim. The judgment illustrates the pleading requirements for suing the Government in tort under the Government Proceedings Act 1956.