Ingenieur Vol 78 ingenieur 2019 apr (2) | Page 20

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 6 18 VOL 2019 VOL 78 55 APRIL-JUNE JUNE 2013 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