LXEA 4111 Civil Procedure I

Tutorial Questions
2014/2015 Semester I
UMAR AZIZ (LEB120117)
Question 1
Explain what you understand by the term cause of action. Explain the importance of a
cause of action in the civil litigation process. Illustrate your answer by making reference
to the decided cases in your course outline.
- What is a cause of action?
A cause of action is a combination of facts giving rise to a claim or right to sue in UK law. It
provides the basis for commencing court proceedings in order to obtain an appropriate remedy
by law. In other words, a cause of action is the justification for bringing legal proceedings. There
are usually several required elements that make up a cause of action, and the facts of a case
must satisfy each of these elements for there to be a valid claim.
Elements of a cause of action
There are many different causes of action, each of which have various elements that have to be
proved by the claimant in order to win the case. All of the elements of each cause of action must
be detailed in the claim, with supporting facts and law. The application of the facts to the law
must lead to a logical conclusion and a claim for an appropriate remedy. The elements of each
cause of action must be proved on the balance of probabilities in civil litigation and beyond
reasonable doubt in criminal actions.
A cause of action can arise from an act or omission, a breach of duty, a violation of an
individuals right or a failure to carry out a legal obligation. The facts or circumstances that may
lead someone to seek a legal remedy may give rise to more than one cause of action. For
example, if someone is attacked from behind and then pushed to the ground and kicked, they
might have a cause of action for both assault and battery, along with various other offences if
the elements of all those offences can be proved.
Examples of causes of action
In order to bring a claim against a defendant for medical negligence, you will need to establish
that the facts of your case give rise to a cause of action in medical negligence. In order to do so,
you will need to consider the following elements of this particular cause of action:
Duty of care: a duty of care needs to have existed between the claimant and the defendant
(usually doctor/patient). The standard expected is that of the ordinary, competent practitioner
who professes to have that particular skill.
Breach of duty: it needs to be established that there was a breach of the above duty of care. In
this particular claim, it will need to be established whether the defendant acted in accordance
with a practice accepted as proper at that time by a responsible body of medical opinion.
Causation: the claimant must prove, on the balance of probabilities, that the defendants breach
caused the damage claimed. The claimant will succeed if he can show that the damage would
not have occurred but for the defendants negligence.
1

Although the example above is specific to a claim for medical negligence, all claims of
negligence need the requisite elements of duty of care, breach of that duty, and proximate
cause as a result of the breach.
Lim Kean v Choo Koon
A cause of action accrues when there is in existence a person who can sue and another who
can be sued, and when all the facts have happened which are material to be proved to etitled
the plaintiff to succeed.
Judge: four questions to determine whether there are cause of action?
i) Is there a plaintiff who can sue ?
ii)Is there a defendant who can be sued ?
iii) Is there a cause of action that is known to law ?
iv) If there is, has every ingredients that constitute the cause of action taken place /is the cause
of action complete ?
*If the cause of action is not complete , then the Def can option to strike out the Pf.
Taib bin Awang v Mohamed bin Abdullah
Plaintiff brought a civil claim against the defendents in the tort of malicious prosecution on the
basis that he had been wrongfully prosecuted in the Kadis Court for an offence under Syariah
law.
One factor which the defendant had left out in his claim that he had been found guilty by the
Kadis Court and had put in an appeal after that..
Was the cause of action complete ?
Ingredients:
i)The D must prosecute the P
ii) Prosecution must end in Ps favour
iii)Prosecution had no reasonable cause
iv)The D acted maliciously
Held :
The cause of action is incomplete & the Pf is not allowed to sue for malicious prosecution.
Sao Koon Lin v S B Mehra
Plaintiff brought a civil claim against the defendents in the tort of malicious prosecution on the
basis that he had been wrongfully prosecuted in the Kadis Court for an offence under Syariah
law.
One factor which the defendant had left out in his claim that he had been found guilty by the
Kadis Court and had put in an appeal after that..
The judge struck out his claim based on the fact that he had no cause of action because the
appeal has not been heard and thus it is not complete.
2

The Federal Court held that the plaintiff had no cause of action because the debt owed to him
has not been due.

Question 4
Answer the following separate and independent questions.
(i)

P entered into a contract with D in 2006 to purchase a piece of land owned by D.

D breached the contract in 2007. P intends to commerce an action for breach of
contract against D today. Will Ps action be barred by limitation?

YES
s. 6(1)(a) Limitation Act 1953
Actions founded on a contract or on tort cannot be brought after 6 years from
thedate the cause of action accrued, in this case , cause of action accrued in
2007, and passed the limitation in 2013

(ii)

P is the beneficiary of a trust. D is the trustee. P has just discovered that D had
committed a breach of trust about 10 years ago. P intends to commence an
action for breach of trust against D today. Will Ps action be barred by limitation?

NO
s. 22 (1)(b) Limitation Act 1953
No limitation period to recover from the trustee trust property or the proceeds
thereof in the possession of the trustee, or previously received by the trustee and
converted to his use.
Palaniappa Chettiar v Lakshamanan Chettiar
The Court held that there is no limitation period in action by beneficiary to
recovery of trust property.

Question 5
What is the limitation period for suits based on breach of trust?
- s. 22 (1) Limitation Act 1953
No limitation period for
i)Fraudulent BOT
3

ii)Trustee in receipt of trust property/proceeds

Palaniappa Chettiar v Lakshamanan Chettiar
The Court held that there is no limitation period in action by beneficiary to recovery of trust
property.
Sok Chu Tang v Vincent Tang Fook Lam & Anor
For limitations based on Breaches of trust other than fraudulent breach of trust
s. 22 (2) Limitation Act 1953
6 years from the date on which the right was accrued.

Question 6
Discuss whether the claims of G and E below are barred by limitation.
(ii)

In 2010 E was injured in an accident which involved a Government ambulance. E

was seventeen years old at that time. E intends to file an action claiming
damages for negligence against the Government of Malaysia next week.

BARRED
s.24 Limitation Act 1953
Limitation period is for the action concerned and starts to run when disability
ceases In this case disability is the condition where the plaintiff is a minor .
Phua Chin Chew v KM & Ors
Fact: The plaintiff was mentally unsound and resigned from his teaching
profession.
Held:The courts held that s. 24 of the Limitation Act should be read into s. 2 of
the Public Authorities Protection Act 1948 and therefore, an extension of 3 years
is allowed.
Thus,limitation period starts at 2011 when E was 18 .
Under s.2(a) of Public Authority Protection Act 1948 the suit, action, prosecution
or proceeding shall not lie or be instituted unless it is commenced within thirty-six
months next after the act, neglect or default complained of or, in the case of a
continuance of injury or damage, within thirty-six months(3 years) next after the
ceasing
thereof;
Following the Act , the limitation period ends in 2014 (after three years). The
action is barred by limitation.
4