‟
INGENIEUR
Therefore, an engineer’s liability under tort of
negligence involving injury is now limited to a longstop
of 15 years.
into the house. C has three years from
2006 to file an action in court against D for
damages.
c. C bought a house from D in 2000. In 2005,
C discovered a crack which damaged the
walls badly. A building report made by a
consultant revealed that the cracks had
occurred in 2002, two years after C moved
into the house. C has three years from
2005 to file an action in court against D for
damages.
Limited to Negligent Cases
Read on its own, section 6A of the Limitation Act
is wide enough to cover all instances of negligence
involving injury. However there are some limitations
of the new section 6A.
The explanatory statement in the Bill initially
states that the provision is intended “to enable
a person to take action founded in negligence
not involving personal injuries by allowing an
extended limitation period of three years from the
date of knowledge of the person having the cause
of action.” However, it then goes on to explain
that the provision “considers negligence cases
involving latent damage in construction cases,
where the damage was not discoverable through
general inspection ...”
It appears from the above statement that
Parliament intends for section 6A to apply only to
latent damage in construction cases. There are
two grounds to support this contention.
Firstly, according to the Minister’s statement
in the Hansard of April 4, 2018, section 6A
“would permit a plaintiff to take action based on
negligence involving latent damage in construction
cases by extending the limitation period by three
years …”
Secondly, all three illustrations provided in
section 6A(2) to describe the operation of certain
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sub-sections are premised on construction
cases.
Therefore it remains to be seen whether
the Malaysian courts will apply section 6A to
negligence cases that do not involve latent defects
in construction cases.
Limited to 15 Years
Section 6A(3) provides as follows:
“Notwithstanding subsection (2), no action
shall be brought after the expiration of fifteen
years from the date on which the cause of action
accrued.”
Therefore section 6A(3) prevents any person
from instituting court proceedings more than 15
years after the cause of action accrued even if
it results in the extended limitation period being
less than three years or even though the damage
is discovered after 15 years.
Application of Section 6A(3)
The new section 6A(3) provides an illustration to
explain the operation of this section.
C bought a house from D in 2000. In 2017, C
discovered a crack which damaged the walls badly.
A building report made by a consultant revealed
that the cracks had occurred in 2001, one year
after C moved into the house. C cannot commence
an action because he has already exceeded the
fifteen-year limitation period.
Therefore, an engineer’s liability under tort
of negligence involving injury is now limited to a
longstop of 15 years. He does not have to worry
about a stale claim brought against him 15 years
or more from the date he designed the project.
With this amendment Malaysia is now in line
with the jurisprudence in Singapore and United
Kingdom on this issue.