No room for delay: The Strict Limitation for Dependency Claims
Legal actions hinge on timing – limitation periods can make or break a claim. The Limitation Act 1953 typically governs the timeframe for filing claims, but not all causes of action fall under its scope. For instance, dependency claims are exempt.
Dependency claim refers to a claim under s. 7 of the Civil Law Act 1956. Clause (1) and (2) reads:
“(1) Whenever the death of a person is caused by wrongful act, neglect or default, and the act, neglect or default is such as would, if death had not ensued, have entitled the party injured to maintain an action and recover damages in respect thereof, the party who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured, and although the death has been caused under such circumstances as amount in law to an offence under the Penal Code [Act 574].
(2) Every such action shall be for the benefit of the wife, husband, parent, child and any person with disabilities under the care, if any, of the person whose death has been so caused and shall be brought by and in the name of the executor of the person deceased.” [emphasis added]
Generally, for actions founded in contract or tort (e.g. negligence, defamation, nuisance), the limitation period is 6 years from the date of the breach or default.1 However, if the action is premised on a dependency claim, the limitation period is shorter. Section 7 (5) of the Civil Law Act 1956 reads:
“Not more than one action shall be brought for and in respect of the same subject matter of complaint, and every such action shall be brought within three years after the death of the person deceased.” [emphasis added]
In Kuan Hip Peng [1965],2 the Plaintiff brought a dependency claim against the Defendants just four days after the three-year limitation period. Despite not filing a defence, the Defendants successfully applied to strike out the action as it was time-barred. The Plaintiff appealed, arguing that the striking-out application was premature as no defence was filed. Thompson LP, delivering the judgment in the Federal Court, held:
“Now, it is clear from the general course of reasoning upon which it is based and from the reference to the Real Property Limitation Acts that the case of Dismore v Milton supra, has no application in relation to a Staute of Limitations which is absolute and without exceptions.
Where there are exceptions which would affect the operation of the statute it is clear that a plaintiff need not plead them until the defence of limitation has been raised on the pleadings by the defendant (see Dawkins v Penrhyn (Lord) supraBusch v Stevens [1963] 1 QB 1.
But that is not the position in the present case. The terms of section 7(5) of the Civil Law Ordinance are absolute and contain no exceptions. They are that “such action shall be brought within three years after the death of the deceased person”. It is true that, as Goddard L.J. said with reference to the corresponding section of the English Act, the section “merely prescribes a period of limitation” (Lubovsky v Shelling [1944] 1 KB 44 47) and that it does not contain a condition precedent or anything of the sort. Nevertheless the period is absolute. There is no room for doubt as to when it begins to run. It runs from the death of the person of whose support the plaintiff has been deprived. The cause of action arises on death (see Seward v “Vera Cruz” (1884–5) 10 App Cas 59 67 70).” [emphasis added]
In Lee Cheng Yee [2004],3 the Plaintiff brought a dependency claim against the Defendants some 5 years after the latter had caused the death of the deceased. At the trial, the Defendants had conceded to total liability, but argued that since it was a dependency claim, it would be caught by s. 7 (5) of the Civil Law Act 1956. In response, the Plaintiff argued that the Defendants did not specifically plead the issue of limitation in their defence. The Court of Appeal held:
“In this case, we find that s 7(5) of the Civil Law Act 1956, and equally s 7(5) Civil Law Act (as amended in 1984) are absolute in nature. Hence, there is no necessity to plead limitation.”
The Federal Court in Tasja Sdn Bhd [2011] remarked:4
“After scrutinizing the authorities above we agree with the submission of the plaintiff that in an application for striking out under Order 18 rule 19 (1) RHC on the ground of limitation to bring an action, a distinction must be made as to which provision of the law is used to ground such application. If it is based on s 2 (a) of PAPA or s 7 (5) of the Civil Law Act, where the period of limitation is absolute then in a clear and obvious case such application should be granted without having to plead such a defence.” [emphasis added]
If the defence of limitation under s. 7 (5) is available, a defendant must raise it at the earliest opportunity – either in the defence or by applying to strike out the claim. In Tengku Ismail [2006],5 the plaintiff filed a dependency claim more than four years after the accident. The defence of limitation was not pleaded in the defence and it was raised in the written submissions after trial. The Court of Appeal in distinguishing Kuan Hip Peng held:
“[17] The pleading point raised in this appeal is certainly of some importance. A plea of limitation raised at submissions stage after the court has gone through the whole process of full trial clearly no longer serves its purpose as a procedural bar when the case can, if raised at an earlier, be struck out based on a technical defence. By reason of the failure to plead the issue of limitation, the plaintiffs clearly have been lulled into a sense of security that the case would be met on the merits. If it was still open for a defendant to raise limitation at such a late stage, there would clearly have been a wastage of precious judicial time. The court notes that, in the circumstances of the present case, limitation was raised at a stage when the evidence at trial indicated 100% liability on the part of the defendants. To permit the defendants to raise limitation, would effectively be giving the defendants an opportunity to renew the fight on an entirely different defence.
[18] On the case law referred to us, after careful examination of the cases of Kuan Hip Peng and Lee Cheng Yee, we have come to the conclusion that we are not bound to follow them for the following reasons.
[19] The case of Kuan Hip Peng can clearly be distinguished. It was not a case about the requirement of pleading of defence of limitation as the point was taken by way of a striking out application. The decision was delivered without reference to an express provision on pleading. Limitation was raised at a very early stage. The plaintiff in that case was not taken by surprise. The plaintiff had the opportunity to meet them. The issue on non-compliance of the rules relating to pleading was not an issue in such a situation.
[20] Had the defendant in this case taken a similar course of action and applied to strike out the statement of claim on the basis of a time bar, only then would the decision in Kuan Hip Peng be a complete answer. We are therefore in agreement with counsel for the appellant that Kuan Hip Peng’s case is therefore not an authority on non-pleading of limitation.
[21] As for the decision of a court of co-ordinate jurisdiction, that of the Court of Appeal in Lee Cheng Yee which extended the principle in Kuan Hip Peng further to the pleading question, there was clearly no consideration of O 14 r 14(1) of the SCR and O 18 r 8(1) of the RHC which have statutory force. That decision in that respect was per incuriam. This court is not bound by the decisions of courts of co-ordinate jurisdiction which clearly is made per incuriam. Having arrived at the conclusions that we have arrived at, we consider that we are entitled and our duty to depart from it.” [emphasis added]
On the requirement to plead any defence on limitation, Order 18 r. 8 (1), Rules of Court 2012 states:
“(1) A party shall in any pleading subsequent to a statement of claim plead specifically any matter, for example, performance, release, any relevant statute of limitation, fraud or any fact showing illegality−
(a) which he alleges makes any claim or defence of the opposite party not maintainable;
(b) which, if not specifically pleaded, might take the opposite party by surprise; or
(c) which raises issues of fact not arising out of the preceding pleading.” [emphasis added]
In conclusion, the limitation period for dependency claims is strictly enforced by the courts, even if exceeded by only a few days. However, defendants must exercise caution and ensure the issue is raised at the earliest stage of proceedings to avoid procedural pitfalls.
Authors: SM Shanmugam and Hafiiz Rashid
References
- See: Section 6 (1), Limitation Act 1953. ↩︎
- Kuan Hip Peng v Yap Yin & Anor [1965] 1 MLJ 252. ↩︎
- Lee Cheng Yee (suing as administrator of the estate of Chia Miew Hien) v Tiu Soon Siang t/a Tiyor Soon Tiok & Sons Company & Anor [2004] 1 MLJ 670. ↩︎
- Tasja Sdn Bhd v Golden Approach Sdn Bhd [2011] MLJU 067. ↩︎
- Tengku Ismail bin Tengku Sulaiman (suing as father of Tengku Iskandar Shah bin Tengku Ismail, deceased) & Ors v Sia Cheng Soon & Anor [2006] 5 MLJ 228. ↩︎
The views and opinions attributable to the author(s) of this publication are not to be imputed to the firm, Shan Chambers. The contents of this publication are intended for purposes of general information and academic discussion only. It should not be construed as legal advice or legal opinion on any fact or circumstance.