Click On Proposed s24A, B, C Limitation Act
Taking from where I left off the last time on 11th June and before the whole episode drifted out from my mind, here are some real concerns in respect of the proposed amendment – insertion of S24A (1), (2), (3), (4) (5) and (6), S24B (1), (2) and (3), and S24C (1), (2) and (3). But for today, suffice to deal with S24A.
While everyone seem to be talking about their concerns (…due to various representatives coming from the Bar Council, FOMCA, Board of Engineers, CIDB, ACEM, etc) from their own industry perspectives during the AGC’s conducted meeting, I would prefer to focus on those phrases used, namely, “cause of action accrued” and “knowledge required” used in the proposed amendment.
CAUSE OF ACTION ACCRUES – The usual period mentioned in the Act begins to run from the date on which the cause of action accrued. We can look at this phrase from both contract and tort. In contract, cause of action accrues on the date of the breach of contract. For tort related cases, a cause of action accrues when an actual claim is made and a quantifiable or ascertainable loss is suffered, thus any contingent liability is not sufficient to start time running.
Why is this “cause of action accrued” important? Conceptually, it is important for Section 24A (2)(a) if read in relation to Section 6(1)(a) of the same Act, where action is concerning “personal injury”. Section 6(1)(a) is in respect of non-latent injury, thus the aggrieved party has a 6 years time period to pursue an action. If this time bar period is exhausted, then the aggrieved party can still file a claim under S24A(2)(b) citing latent injury. He /She will have 15 years as from the date of the act or ommission causing the injury. Of course, the party must prove the definition “knowledge required” applies in his / her favour. Anyway, we will not concern ourselves here on this “long-stop” of 15 years….we will talk about this in the next story! Hope this is no bedtime story??
It surely felt dizzy here; if action under S6(1)(a) is time-barred, the aggrieved party claimed “latent” injury relied on S24A(2)(b)… Of course he/she would have to prove this “knowledge required”….with the “relevant date” such knowledge was acquired. This said “relevant date” is so important; if proved provides the licence for the party to commence proceeding within 3 years therefrom. As for non-injury cases, this is more straight forward than those relating to injury but as stated above, the meaning of cause of action must be fully understood.
This leads us to “knowledge required” of S24A(4).
KNOWLEDGE REQUIRED – S24A(4) – Constructive and actual knowledge are both relevant in its interpretation. There must be a knowledge of material facts about the damage or injury, and knows that there is a real possibility that the damage / injury was caused by the acts or omissions alleged to have constitute negligence – claimant must know factual essence of the act or omission to which his damage / injury is attributable, the substance of what ultimately comes to be pleaded as his case in negligence. The claimants only need to have had sufficient information to make it reasonable to commence investigations into the potential claim against the defendant. However, the clause did not place any weightage on knowledge concerning whether acts and ommission should involve negligence, nuisance or breach of duty – these are not important….S24A(5). The aggrieved party needs only to take all reasonable steps to obtain necessary advices and to take action as they are deemed appropriate within the realm of reasonableness.
Let’s stop here…everyone is getting tired; tired of my explanation, I supposed! Next part, we shall discuss about the proposed S24B which is very much on the topic of “long-stop” which drags the period for action to a max of 15 years.