Case study #1: striking out application was allowed

Case Name:

Gregory Steven Jenkins (suing in his personal capacity and on behalf of estates of the deceased, the late Jenkins Annapuranee) v. Kew Kee Seng & Others 

Types of claim:

Interlocutory application (made under enclosure 18)

Court:

High Court, KL

Brief Fact:

The Plaintiff is the son of the deceased. The 2nd and the 3rd Defendants had applied to strike out the claims against them. The 2nd D was alleged to have been negligent and acted with criminal intent by failing to lodge police report immediately after being informed by the 1st D about the discovery of the bones and personal belongings. Similarly, the 3rd D was alleged to have been negligent and acted with criminal intent by failing to take action to discover the deceased’s bones and personal belongings.

Decision:

The 2nd and the 3rd Defendants’ application (encl 18) was allowed with costs of RM10,000.00 to be paid to them respectively.

Reasons:

1️⃣The P’s claim premised on the 2nd and the 3rd D’s breach of duty of care was unsustainable. It is because the P had failed to plead sufficiently that the 2nd D and the 3rd D had breached a duty of care owed to the P and/or the deceased which eventually caused the P to have suffered losses. Moreover, there was a contradiction in the pleadings. And, no fact was pleaded that the 2nd and the 3rd Ds had prevented the investigation upon discovery.

2️⃣The P’s claim premised on vicarious liability against 2nd and the 3rd D was unsustainable. It is because the fact pleaded by the P that the 1st D was an agent or representative or a servant or employee of the 2nd and 3rd D was suspicious. And, the P’s pleaded facts were inconsistent with the undisputed and contemporary documents. 

Posted on April 21, 2024

By Fong Fooong Lan

Disclaimer: The materials on FL Fong & Partners's website are intended to be for general information purposes only. Nothing on this website shall constitute legal or professional advice. Readers or visitors to this website are advised to consult their own lawyer for advice on any specific legal matters. No reader, user or browser of this site should act or refrain from acting based on the information on this site without first seeking legal advice from qualified professionals in the relevant jurisdiction. FL Fong & Partners and the author shall not be held liable for any liabilities, losses and/or damages incurred, suffered and/or arising from the articles posted on this site.