3 August, 2019
Pursuant to section 6 of the Limitation Act 1953, an action founded on contract or on tort must be brought within six years from the date on which the cause of action accrues.
In April last year, the Parliament of Malaysia passed a Bill known as the Limitation (Amendment) Act 2018. The Limitation Act 1953 [Act 254], referred to as the principal Act was amended by inserting after section 6, section 6A.
The new section 6A comes into force in September 2019. Section 6A applies to any action for negligence not involving personal injuries. Section 6A brings about the following effect:
- The six-year limitation period is extended by section 6A. The starting date to calculate the limitation period falls beyond the date of which the cause of action accrued. An action in negligence (not involving personal injuries) to which this section applies shall not be brought after the expiration of three years from the starting date. Starting date has been defined under the Act to mean earliest date on which the plaintiff possessed the requisite knowledge required for bringing an action for damages in respect of the relevant damage and a right to bring such action.
- This Act only applies if the three-year period expires later than the period of limitation under the Act as prescribed by section 6(1).
- A further caveat as provided by the Act is that no action shall be brought after the expiration of 15 years from the date in which the cause of action accrued.
- An example is where in 2004, P entered into a building contract with D, the contractors. P had knowledge of the defect in structure of the swimming pool only in 2010. P has three years from 2010 to bring an action under negligence for such defect. Without the insertion of section 6A, P would have been out of time to bring a civil suit and claim damages.
Knowledge is aptly and appropriately defined in the Act. The plaintiff here may have knowledge of the material facts about the damages sued for or knowledge of other facts relevant to the action. The latter has three components:
- The damage was attributable in whole or in part to that act/omission which is alleged to constitute negligence.
- The plaintiff discovered the identity of the defendant and, thirdly, where the act or omission was that of a person other than the defendant, the identity of that person and the additional facts supporting the bringing of an action against the defendant.
- It also includes the knowledge which the plaintiff might reasonably have been expected to acquire from the facts ascertainable by him or facts ascertainable with the help of expert advice which is reasonable for him to seek.
Further illustrations have been provided under the Act but it is in no way exhaustive of the application of section 6A. Section 6A is a remarkable addition as it safeguards the rights of plaintiff to bring an action under the ambit of negligence.
For further information, please contact:
Caitlin Tan Hui Yi, Shearn Delamore & Co
caitlintan@shearndelamore.com
