SECTION 6A OF LIMITATION (AMENDMENT) ACT 2018 [ACT A1566]

Under the Limitation Act 1953 [Act 254], Section 6 (1) provides that an action founded on a contract or tort shall not be brought after the expiration of six (6) years from the date on which the cause of action accrued.

In April 2018, a new insertion of Section 6A was passed by Parliament and which came into force in September 2019. Section 6A provides as follows:

“6A. Limitation of actions to claim damages for negligence not involving personal injuries

1. Notwithstanding subsection 6(1), this section shall apply to any action for damages for negligence not involving personal injuries, where the starting date for calculating the period of limitation under subsection (2) falls after the date on which the cause of action accrued.
2. An action to which this section applies shall not be brought after the expiration of three years from the starting date if the period of three years expires later than the period of limitation prescribed in subsection 6(1).

ILLUSTRATIONS

(a) C bought a house from D in 2000. In 2010, 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 2010 to file an action in court against D for damages.

(b) C bought a house from D in 2000. In 2006, 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 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.

3. Notwithstanding subsection (2), no action shall be brought after the expiration of fifteen years from the date on which the cause of action accrued.

ILLUSTRATION

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.

4. For the purposes of this section—

(a) “starting date” means the earliest date on which the plaintiff or any person in whom the cause of action was vested before him first had both the knowledge required for bringing an action for damages in respect of the relevant damage and a right to bring such action;

(b) “knowledge required for bringing an action for damages in respect of the relevant damage” means knowledge of—

(i) the material facts about the damage in respect of which damages are claimed;

(ii) other facts relevant to the current action:

(A) that the damage was attributable in whole or in part to that act or omission which is alleged to constitute negligence;

(B) the identity of the defendant; and

(C) if it is alleged that 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, and

(iii) includes the knowledge which the plaintiff or any person in whom the cause of action was vested before him might reasonably have been expected to acquire—

(A) from facts observable or ascertainable by him; or

(B) from facts ascertainable by him with the help of appropriate expert advice which is reasonable for him to seek,

but the plaintiff or the person in whom the cause of action was vested before him shall not be limited under this subparagraph to knowledge of a fact ascertainable only with the help of expert advice so long as he has taken all reasonable steps to obtain and, where appropriate, to act on that advice.

5. Knowledge that any act or omission did or did not, as a matter of law, involve negligence is irrelevant for the purposes of subsection (4).”

This principles from Section 6A was applied by the High Court in the case of Cekap Mesra Development Sdn Bhd v Che Seman Bin Abdullah [2021] 1 LNS 1817. Justice Choo Kah Sing ruled that:

“Section 6A (2) of the LA allows an action to claim damages for negligence not involving personal injuries to be brought within three years from the time the plaintiff could have acquired the knowledge for bring the action and the right to bring such action (“the starting date”) if the period of three years expires later than the period of limitation prescribed in subsection 6 (1) of the LA. Section 6A (1) provides that the section is only applicable where the starting date for calculating the period of limitation under subsection (2) falls after the date on which the cause of action accrued.

Thirdly, s. 6A (3) states that “Notwithstanding subsection (2), no action shall be brought after the expiration of fifteen years from the date on which the cause of action accrued”. Although s. 6A of LA allows deferment of the limitation period to bring an action after the expiry of six years limitation, it imposes a maximum cap for the period that an action could be brought under s. 6A(2) of the LA, which is, within 15 years from the time the cause of action accrued.”

CONCLUSION

With this new insertion of section 6A, the Act provides an alternative limitation period for actions in the tort of negligence not involving personal injuries which is now within three (3) years from the starting date. The starting date has been defined in subsection (4) which is the earliest date on which the plaintiff first had both the knowledge required for him to bring an action for damages. In short, given that the limitation of six (6) years under the general rule has expired, the plaintiff still has an extended period of three (3) years from the starting date to initiate a legal action. However, the plaintiff must remember that the maximum period for him to initiate a legal action shall not be more than fifteen (15) years from the time the cause of action accrued.

The new amendment in Section 6A illustrates particularly issues in regards claims of latent defects involving construction buildings and which allows house owners to protect their interests. The purpose of Section 6A is also to safeguard the construction company in preventing a claim after the expiration of 15 years. However, we need to bear in mind that Section 6A also applies to any negligence claims not involving personal injuries and thus is not restricted to just defects in buildings.