KUALA LUMPUR, Feb 15 – The High Court today struck out three negligence lawsuits over the deadly 2016 fire at Sultanah Aminah Johor Bahru Hospital (HSA) in Johor because they were not filed within three years.
T. Balaskanda, who is counsel for the parents of three patients — Logeswaran Krishnasamy, Choo Lin Fong, and Kaliama Muniandy — killed in the fire at the Ministry of Health (MOH) hospital, said Johor Baru High Court Judicial Commissioner Aslam Zainuddin granted the senior federal counsel’s application to strike out their claims on grounds that they were “time-barred”.
Section 2(a) of the Public Authorities Protection Act (PAPA) 1948 imposes a three-year statute of limitations on lawsuits or prosecution of individuals executing public duties.
Johor senior federal counsel Jailani A. Rahman previously argued that the last day for claims to be filed over the October 25, 2016 fire at HSA was October 24, 2019. However, the parents of Logeswaran, Choo, and Kaliama only filed their writ of summons in September 2020.
The High Court in Johor Baru also dismissed the plaintiffs’ application for discovery of documents that was said to be “redundant”.
HSA director Dr Mohtar Pungut had refused to furnish the medical records and post-mortem reports on the plaintiffs’ children, as well as the report on the independent inquiry into the fire that was headed by former Court of Appeal judge Mohd Hishamudin Yunus.
In an affidavit-in-reply in all three cases, Dr Mohtar described the independent inquiry’s report as an official secret “of the highest-level classification”, besides saying that the victims’ medical records and post-mortem reports were kept secret to avoid “misuse” by “irresponsible quarters”.
Balaskanda told CodeBlue that medical reports cannot be considered official secrets, citing the Federal Court ruling in the 1978 BA Rao v Sapuran Kaur case.
In that case, Lord President of the Federal Court Raja Azlan Shah (as the late King and Perak ruler, Sultan Azlan Shah, was then known) judged that the court has the power to call for documents.
“Unless the court is satisfied that there exists a valid basis for assertion of the privilege, the evidence must be produced. This strikes a legitimate balance between the public and private interest,” he had said in his ruling.
Balaskanda said he contended at the High Court that the government could only get protection under PAPA if they also “follow the law”, pointing out too that England repealed in 1954 the Public Authorities Protection Act 1893.
Balaskanda, who is from Zaman & Associates, said the High Court also ordered RM2,500 in costs against each of the three plaintiffs, even though their cases were heard jointly.
He added that the plaintiffs in the three cases have filed a separate lawsuit over the 2016 fire against Medivest Sdn Bhd, a concessionaire with a 10-year contract with HSA ending 2025 to provide the public hospital support services. That lawsuit is still pending in court.
When asked if his clients would appeal the High Court ruling, Balaskanda said: “I have to speak to them. Some of them are located out of Johor, some are very old.”
The High Court’s dismissal of the litigation against the government over the deadly fire at HSA paves the way for MOH to finally publish the independent inquiry’s findings into the tragedy, after previously citing concerns of sub judice. Health Minister Khairy Jamaluddin promised last November to release the report once the cases are settled in court.
The parents of Neeramaladevi Chandran, the fourth victim in the 2016 fire that left six patients dead, settled their lawsuit against the government in court in August 2020 for RM136,000 in damages, after filing suit on October 24, 2019. Neeramaladevi was aged 24 when she died in the fire, while Logeswaran was aged 20, Choo aged 37, and Kaliama aged 22.
The next-of-kin of two other patients – Yusuf Hasan (aged 53 then) and Toh Ah Wah (aged 60 then) – did not sue over the fire.
The families of Logeswaran, Choo, and Kaliama sued the government for negligence over the October 25, 2016 fire that broke out in the south intensive care unit (ICU) of HSA after reading CodeBlue’s March 2020 articles on the findings of the independent inquiry into the tragedy.
The independent investigation’s report, sighted by CodeBlue, concluded that one of the underlying causes that led to the deaths of the patients was the lack of preparedness by hospital management and staff.
According to the inquiry, none of the south ICU staff had undergone training in fire drills or emergency evacuation despite four previous fire outbreaks in the ward, including one just 11 days before the fatal fire on October 25, 2016. HSA also did not have a fire certificate then. Last October, the Johor Fire and Rescue Department did not respond to CodeBlue’s queries on whether HSA has since managed to obtain fire certification.