Pang Yeow Chow (practising at Messrs YC Pang, Chong & Gordon) v Advance Specialist Treatment Engineering Sdn Bhd [2015] 1 MLJ 490

 

Pang Yeow Chow (practising at Messrs YC Pang, Chong & Gordon) v Advance Specialist Treatment Engineering Sdn Bhd [2015] 1 MLJ 490

Court of Appeal (Putrajaya)

Limitation Period in Professional Negligence

Facts 1.     The Respondent hired a solicitor to commence an action against a purported debtor for works carried out by the Respondent.  The suit was filed on 18 December 2000 (“Previous Suit”).

2.     The solicitor for the Previous Suit was later changed to the Appellant as that solicitor failed to obtain summary judgment for that Previous Suit.

3.     The matter was then fixed for hearing on 29 May 2006 but was struck out due to the failure of the Appellant to attend the matter in court.

4.     The present suit applied by the Respondent was filed on 4 October 2012 against the Appellant for professional negligence in which is for the Appellant’s failure to attend court for the hearing at the Previous Suit.

5.     The Appellant contended that the cause of action for the present suit arose on 29 May 2006, the date where the Appellant had failed to attend the court as the matter was fixed for trial and that the limitation period sets in 29 May 2012.

6.     The learned judicial commissioner having the opportunity dealing with the issue regarding the cause of action for the present suit occurred only on 12 November 2006 (by taking into account the cause of action for the Previous Suit arose on 12 November 2000 and time-barred only on 12 November 2006 accordingly) held as follows:

“[23] In a claim for negligence, the cause of action accrues when the plaintiff suffers damage.”

[26] According to the statement of claim in the suit, the cause of action against SK Styrofoam arose on 12 November 2000; and that means, that action would become statute barred on 12 November 2006. Therefore, there was a window of slightly more than five months from the date the suit was struck out, for the defendant to file a fresh suit against SK Styrofoam. However, the defendant failed to do this; nor did the defendant advise the plaintiff of the possible options available to keep alive the action against SK Styrofoam. Once limitation set in on 12 November 2006, the plaintiff has suffered damage, as that is the date on which the plaintiff has completely lost its cause of action to recover the sum owed by SK Styrofoam.

[27] Therefore, I am of the view that based on the peculiar facts and circumstance of this case, the plaintiff’s cause of action in negligence against the defendant accrued on 12 November 2006 and would have expired on 12 November 2012. This action was filed on 4 October 2012, thus well within the six years limitation period prescribed in s 6 of the Limitation Act 1953.”

Issue Whether the Appellant may rely on the defence of limitation for cause of action relating to professional negligence.
Ratios 1.     Section 6 of the Limitation Act (“Act 254”) provides as follows:

“Save as hereinafter provided the following actions shall not be brought after the expiration of six years from the date on which the cause of action accrued, that is to say—

(a)  actions founded on a contract or on tort”

2.     The Court meticulously pointed out the importance of reference to a number of dates in the prayer.

3.     To note, the disputed dates as per the prayers of the parties are as follows:

(a)  The Appellant contended that the cause of action arose on 29 May 2006 and that it shall lapse on 29 May 2012.  This makes the present suit against the Appellant lapsed as the suit was commenced on 4 October 2012.

(b)  The Respondent admitted that the breach took place on 29 May 2006 and had mentioned nowhere in its pleaded case the date od 12 November 2006, being the date the Respondent had suffered damages as held by the judicial commissioner.

4.     The Court held that it is trite law that judgement must reflect the pleadings, particularly when ‘limitation’ is an issue.

5.     The Court have perused the pleadings but failed to find the date of 12 November 2006 in the Respondent’s statement of claim.

6.     The Court is of the view that such omission is fatal to the Respondent’s case as it failed to enable the Respondent to prove the cause of action falls within the limitation period.

7.     Therefore, the Court was unable to endorse the claim and allow damages.

Decision 1.    The Court of Appeal allowed the appeal.
Key Take Away 1.    Any individual shall have the freedom to commence suit against anyone with purported cause of action, nevertheless, the issue on limitation then may arise.  In other words, one action may be statute-barred in the event that there has been a lapse of time in applying it to the court.

2.    In Malaysia, there are two statutes that dealt with limitation to action –

(a)  Limitation Act 1953

(b)  Public Authorities Protection Act 1948

 

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