INGENIEUR
Limitation of Liability of
Engineers
By Ir. Lai Sze Ching
T
he liability of an engineer has been a thorny
issue as there is always a fear of “life
guaranteed” liability for all the design work
carried out by the engineers. This issue has finally
been resolved when the Limitation Act 1953
(“Limitation Act”) was amended recently.
The Limitation (Amendment) Act 2018
(“Amended Act”) was passed by the Malaysian
Parliament on April 4, 2018. The Act was
subsequently granted Royal Assent by the Yang di-
Pertuan Agong and gazetted on April 27, 2018 and
May 4, 2018 respectively, and will come into force
on a date to be appointed by the Minister.
The objectives of the Amended Act are to:
1. postpone the commencement of the
limitation period when a person is under
a disability at the time the cause of action
accrued;
2. extend the limitation period in cases of
negligence not involving personal injury and
the damage was not discoverable prior to
the expiry of the statutory limitation period;
and
3. provide an overriding 15-year longstop
from the act of negligence giving rise to the
damage.
This article will discuss the amended new
Section 6A of the Amended Act which addresses
the last two issues.
It must be noted that as Sarawak and Sabah
have their own legislation on limitation, therefore
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the Amended Act is not applicable in those
States.
Extension of Limitation Periods in the
Limitation Act 1953
Section 6(1)(a) of the Limitation Act provides that
any legal action must be brought within six years
from the date that a cause of action accrued.
What is a cause of action? The Court in Lim
Kean v Choo Khoon (1970) 1 MLJ 158 said, “a
cause of action normally accrues when there is
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 entitle the plaintiff
to succeed.” In the law of contract, the cause of
action normally arises when terms of a contract
are breached; for example, when the project fails
to complete on time, or the contractor refuses to
comply with the instructions issued by the contract
administrator.
For claims initiated under the law of tort,
the limitation period is six years when a plaintiff
suffers damage due to the tortious act such
as negligence by the defendant. The six year
limitation period applies regardless of when the
plaintiff discovers such damage.
However strict interpretation of the said
provision may cause an injustice when the damage
was discovered only after six years. In Pirelli Cable