See

- vs -

Chua

Judgment

SK Chan J

1. This is an appeal against an order of the assistant registrar made on the hearing for further directions as follows:

   (1)	action to be stayed pending determination of the plaintiff’s capacity in accordance with the procedure laid down in the Mental Disorders and Treatment act (Cap 178, 1985 Ed);
   (2)	if the plaintiff is found to be of sound mind on 21 March 1989 this action to continue;
   (3)	if the plaintiff is found to be of unsound mind on 21 March 1989 this action to be dismissed with costs to be taxed up to the summons for directions stage and awarded to defendant;
   (4)	if plaintiff’s state of mind on 21 March 1989 cannot be determined by inquiry and (a) he is found to be of sound mind at the conclusion of the inquiry, this action to continue; (b) he is found to be of unsound mind at the conclusion of the inquiry, this action to continue but with the appropriate committee to prosecute the plaintiff’s action by amendment under O 20 r 5;
   (5)	the costs of the day’s hearing be awarded to the defendant fixed at $350.

2. The plaintiff had suffered severe injuries from a collision between his motor cycle and the pick-up van driven by the defendant. The plaintiff had, inter alia, a severe head injury (with intercranial haemorrhage) and was in a coma on being admitted to the Tan Tock Seng Hospital on the day of the accident. He was treated for this injuries and was discharged from hospital on 4 June 1988.

3. On 19 January 1989, the senior registrar of the Department of Neurosurgery of Tan Tock Seng Hospital gave a medical report on the condition of the plaintiff in which he stated, inter alia, that ‘He [the plaintiff] was last seen here on 13 June 1988. He was bedridden. He could open his eyes, could not talk, could not answer questions and bedridden’.

4. On 21 March 1989, the present action was commenced. The statement of claim filed on 20 April 1989 gave full particulars of the injuries as certified in the medical report. On 16 May 1989, the defendant filed his defence. Directions for trial were given on 22 August 1989 following which the medical report was disclosed to the defendant. A month later, the defendant’s solicitor applied for further directions for production of information pertaining to the alcoholic condition of the plaintiff on admission to hospital. The request to set down the action for trial was filed on 25 September 1989. On being told that the plaintiff was unable to give consent to the disclosure of his medical condition at the time of admission on the ground that the plaintiff was in a coma and after receipt of a copy of the medical report dated 19 January 1989, the defendant’s solicitor amended and then re-amended his application for further directions for, inter alia, the dismissal of the action on the basis of the medical report on the ground of non-compliance with O 76 r 2 of the Rules of the Supreme Court 1970.

5. It should be noted that the defendants did not seek a stay of proceedings on the ground that the plaintiff had become a disabled person since the commencement of the action. The defendant sought to dismiss the action on the ground that the plaintiff was in a coma or otherwise disabled on the date of the commencement of this action. The assistant registrar ordered a stay of proceedings on the terms as set out above.

6. The main ground of appeal is that the assistant registrar has no jurisdiction to order an inquiry under the Mental Disorders and Treatment Act (Cap 178, 1985 Ed) (‘the Act’). It is not disputed that the assistant registrar has no such jurisdiction and that only a judge may order an inquiry under s 3 thereof. The only question is whether the orders made by him amounted to the exercise of such jurisdiction. Although the assistant registrar did not in form order an inquiry but stay of proceedings pending an inquiry, the effect of the stay is that the relatives of the plaintiff must apply for an inquiry before the plaintiff may proceed further with his action. I think the assistant registrar has, in substance, exercised such jurisdiction, albeit indirectly. I do not think the assistant registrar can do indirectly what he cannot do directly. This is sufficient to dispose of this appeal.

7. As the appeal before me is by way of a hearing, I think it will be more convenient for me to deal with the application to dismiss the action rather than to send it back to the assistant registrar.

8. Counsel for the plaintiff has raised an argument relating to the scope of the Act. He contends that the Act applies to cases where the mental disorder is one of unsound mind and that a person of unsound mind is only an alternative description of a lunatic under the former Lunacy Act 1890. He suggest, by reference to the Report of the Royal Commission on the Law Relating to Mental Illness and Mental Deficiency 1954-1957 (Cmnd 169), and on which the Mental Health Act 1959 (‘the 1959 Act’) was based, that the expression ‘unsound mind’ has been discarded in favour of the expression ‘mental disorder’ which was more comprehensively defined to mean ‘mental illness, arrested or incomplete development of mind, psychopathic disorder, or any other disorder or disability of mind’. He also refers to the Report of the Committee on Mentally Abnormal Offenders (Cmnd 6244, 1975) to show that the expression ‘any other disorder or disability of mind’ used in the 1959 Act was intended to apply to disabilities arising from head injuries, etc, By this process of reasoning, he says that there is a lacuna in the Act in that it applies only to lunatics, i.e. persons suffering from abnormality of mind (i.e. insanity in law) and persons suffering from other forms of mental disorder where such mental disorder is caused by head injuries.

9. I think this is an unsound argument. Although counsel is correct in submitting that the expression ‘person of unsound mind’ had the meaning of a ‘lunatic’ in the Lunacy Act of 1890 (see Devlin LJ in Buxton v Jayne at p 697), that word meant an idiot or person of unsound mind. The word ‘lunatic’ was not confined to an ‘idiot’. According to Lord Hardwicke LC in Barnsley’s Case, ‘Unsound mind’ or insanae memoriae, which all persons must understand to be a depravity of reason or want of it. A person of unsound mind is non compos mentis in Latin. The common law recognizes four classes of non compos mentis. In Ex p Cranmer, Lord Erskine LC at pp 450-452 said:

   Lord Coke in his commentary upon Littleton states what embraces every possible case: ‘Here Littleton explaineth a man of no sound memory to be non compos mentis. Many times (as it here appeareth) the Latin word explaineth the true sense: and calleth him not amens, demens, furiosus lunaticus, fatuus, stultus, or the like; for ‘non compos mentis’ is most sure and legal. Lord Coke there considers the word ‘lunaticus’ as by no means material; only classing it with ‘amens, demens’, etc; but he says ‘non compos mentis’ is the sure term. The commentary proceeds thus: ‘Non compos mentis, is of four sorts: first, idiota; which from his nativity by ‘a perpetual infirmity is non compos mentis; secondly, he, that by sickness, grief, or other accident, wholly loseth his memory and understanding.’ Here is the very man: not born without reason; but who has lost it from sickness, grief or other accident; for you cannot enter into the mind; to know, by what means it is disorganized: but you find it disorganized; and who can say, I have not a jurisdiction? There is no doubt, the moon has no influence; and there are many persons, who never have lucid intervals that come within this second description. But they must have lost their understanding to this extent; that they are not capable of the management of themselves and their affairs. Lord Coke is so far from putting the person he describes by the term ‘lunaticus’ in the class, that I have just noticed, that he puts that person by himself; describing him to be a man, who hath sometimes his understanding, and sometimes not; and this is the ancient law of the country. This is not a man, who has sometimes understanding, and sometimes not; his understanding is defunct: he has survived the period, that providence has assigned to the stability of his mind. In the remainder of this part of the commentary Lord Coke continues to use the phrase ‘non compos mentis’.

10. It is clear from this passage that a person who loses the use of his mental faculty as a result of ‘accident’ (i.e. any unforseen event) is a person of unsound mind for the purpose of the common law. There is no reason to believe that the legislature, in using the expression ‘unsound mind’ in the Act and not defining it, intends to give it a less comprehensive meaning as suggested by counsel. The 1959 Act merely provided a more modern and socially acceptable expression, i.e. ‘mental disorder’ to describe the same medical condition. Accordingly, I am of the view that if the plaintiff’s mental condition is so impaired by his head injuries that his is unable to manage his own affairs, he would be within the scope of the Act for the purpose of an inquiry thereunder.

11. There is however a procedural difficulty in applying O 76 r 2 to the application to dismiss the action. The rule says that a person under disability may not bring an action except by his next friend. A person is under disability if he is a patient and a ‘patient’ means a mentally disordered person within the meaning of the Act. Section 2 of the Act defines a ‘mentally disordered person’ to mean any person found by due course of law to be of unsound mind and incapable of managing himself or his affairs. It is not disputed that the plaintiff is not a mentally disordered person as defined as he has not been so found by due course of the law. On this ground also, the application to dismiss the action must be dismissed. As framed, the rule makes it impossible for any party to apply to dismiss any action on the ground of disability due to mental disorder until and unless the other party has been so found by due course of law. The English O 80 made for the purpose of the 1959 Act allowed the court on hearing the application to be satisfied with the incapacity of the party alleged to be disabled without being so found by a judge of the court of protection under the 1959 Act.

12. It is not clear whether the assistant registrar did not dismiss the action because the plaintiff was not a mentally disordered person as defined in the Act or because the medical report was insufficient to show that the plaintiff was of unsound mind. the medical report refers to the plaintiff’s condition at about seven months before the issue of the writ and therefore, without further medical and more recent evidence, it might be insufficient for the purpose of the application to dismiss. All that is known is that the plaintiff was in a vegetative state and physically unable to manage himself. Presumably the assistant registrar was not entirely satisfied that this evidence was not sufficient to show that the mental condition of the plaintiff was such that he would have been unable to give any instructions whatever for the commencement of the action, and this would provide one explanation for the form of the order he made. In any case, the application to dismiss the action must fail on the ground that the plaintiff was not a person under disability for the purpose of O 76 at the time he commenced this action.

13. For the above reasons, I find that there was neither a legal nor a factual basis for an order to stay the action until the plaintiff’s mental condition be determined. The appeal is allowed with costs here and below.

Cases

Buston v Jayne [1960] 2 All ER 688; Barnsley’s Case 2 Eq Ca Abr 580; (1745) 22 ER 489; Ex p Crammer [1826] 12 Ves 4445

Legislations

Mental Disorders and Treatment Act (Cap 178, 1985 Ed): s.2, s.3

Rules of the Supreme Court: Ord.75 r 2

Mental Health Act 1959 [UK]

Representations

YH Cheong (Tommy Tan with him) for the plaintiff/appellant.

Ramasamy Karuppan for the defendant/respondent.

Notes:-

This decision is also reported at [1990] 2 MLJ 460