MALAYSIA Trends and Developments Contributed by: Dhinesh Bhaskaran, Rabindra Nathan, Shanti Mogan and Lai Wai Fong, Shearn Delamore & Co
• the action of a purchaser in filing a suit against a developer could be seen as the pur- chaser seeking to be unjustly enriched; and • a claim must be filed within six years from the date of the execution of the SPA. This is a welcome clarification on the legal posi- tion in Malaysia, and eases the financial burden on developers. Malaysian Federal Court Revisits Private Hospital Liability The Malaysian Federal Court recently consid- ered the issue of a private hospital’s non-del- egable duty of care to a patient in Siow Ching Yee v Columbia Asia Sdn Bhd [2024] 3 MLJ 66. The Federal Court ruled that a private hospital remained liable for its non-delegable duty of care to its patients regardless of how responsi- bilities are delegated, rejected the argument of Columbia Asia Sdn Bhd (the “Hospital”) for an indemnity from the consultant anaesthetist and found the Hospital jointly liable with the consult- ant anaesthetist for approximately MYR2.1 mil- lion in damages. The Federal Court in applying the five-feature test propounded in Woodland v Essex County Council [2014] 1 All ER 482, held that the Hos- pital had assumed a non-delegable duty of care, which it owes personally to the appellant and remains liable regardless of whom it may have employed or engaged to carry out that duty of care. The application of the five-feature test in Woodland was as follows: (1) The patient was in a vulnerable position and was totally reliant on the Hospital for his care and treatment, more so when he was admitted to its emergency services.
(2) The negligent act took place during the care and treatment within the Hospital’s premises using its facilities and service. The intention of the Private Healthcare Facilities and Services Act 1998 read with the Private Healthcare Facili- ties and Services (Private Hospitals and Other Private Healthcare Facilities) Regulations 2006 is clear in that private hospitals remain responsible for the treatment and care of patients regardless to whom they may have employed, engaged or delegated the task or responsibility. (3) The patient had no control over how he would be treated and by whom. (4) Having assumed a positive duty of care to the patient in respect of emergency services, the Hospital had delegated to its medical officer and consultants functions to perform at the material time. (5) The consultant anaesthetist was negligent in the performance of the function of rendering proper emergency care and treatment to the appellant. Citizenship Bill Pending in the Federal Court is a crucial appeal by a Malaysian advocacy group called Asso- ciation of Family Support & Welfare Selangor & Kuala Lumpur (Family Frontiers) and six Malay- sian mothers, who are seeking a Court ruling to enable Malaysian mothers’ overseas-born children to automatically become Malaysian citizens. This suit, when filed in the High Court, sparked a lot of attention as many people found it unfair that Malaysian mothers cannot confer citizen- ship on their children if their children are born overseas.
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