Hashim Yeop A. Sani CJ (Malaya):

There was a motor accident along the 77th milestone Ipoh/Kuala Lumpur main road on 18 June 1979 between motor vehicle taxi No. H5887 and another motor vehicle, a bus No. JAB 980. The respondent was injured in the accident. On 16 June 1984 the respondent, as driver of the taxi, took out a writ claiming for special and general damages.

There was also another civil suit filed in Kuala Lumpur, Kuala Lumpur Civil Suit C38/82 in respect of the same accident. On 5 March 1984 the former solicitors for the respondent received a letter from the solicitors acting for the driver and owner of the said bus in the Kuala Lumpur civil suit who are now solicitors for the appellant.

In fact a number of letters were sent by the solicitors for the appellant to the former solicitors for the respondent but for the purpose of this judgment only one is really relevant. The letter appears at p. 21 in appeal record dated 15 August 1984 and reads as follows:

Skrine & Co.,

Advocates & Solicitors,

Straits Trading Building,

No. 4, Leboh Pasar Besar,

50050 Kuala Lumpur

TT/m/90713.T/84 GS/GAP.A.1648/80

15 August 1984

M/s. Gurdial Singh & Co.

29, 1st Floor

Station Road

Ipoh,

Perak

Dear Sirs,

Re: Kuala Lumpur High Court. Civil Suit No. C38 of 1982

We refer to your letter dated 8 August 1984.

We have no instructions to act for the 1st defendant whom your client allege in the statement of claim is the owner of motor vehicle JAB 980. When we wrote to you on 3 August 1984 stating that we have instructions to accept service of process we had in mind the 2nd defendant and Credit Corporation (M) Bhd, who are the owners of the vehicle which was let out by them on hire purchase at the time of the accident.

We hope to serve you with the notice of appearance on behalf on the 2nd defendant shortly.

Yours faithfully,

c.c. client

It is clear in that letter that on 3 August 1984 the solicitors for the appellant had instructions to accept service of process in respect of the appellant being the owners of the vehicle let out on hire purchase at the time of the accident.

The respondent's previous solicitor passed away on 22 November 1988.

The present solicitors for the respondent filed a summons-in-chambers dated 20 February 1989 to apply for the following orders:

(a) leave to amend the writ of summons and statement of claim as set out in the draft amended writ of summons;

(b) liberty to add appellant as third defendant in the civil suit; and

(c) the respondent be granted 30 days from the date of the order to file third party proceedings.

When the application went before the learned Judge there was no dispute as to the primary facts. The learned Judge found that the only issue before him was an issue of law whether the respondent's application was out of time, that is to say, barred by limitation.

Before the learned Judge it was argued on behalf of the appellant that the six years period of limitation had already lapsed as the accident occurred on 18 June 1979. The learned Judge was of the opinion however as stated in his grounds of judgment that since the respondent became aware that the appellant was the registered owner of the vehicle on 15 August 1984, that is the date of the letter reproduced earlier, and not before that, time did not run from the date of the accident but only from the date that the respondent became aware of the "involvement of the third defendant" that is on 15 August 1984.

Section 6(1)(a) of our Limitation Act 1953 (Revised 1981) provides inter alia that:

Save as hereinafter provided actions founded on a contract or on tort shall not be brought after the expiration of six years from the date on which the cause of action accrued. (Note emphasis)

That provision invites the question as to what is the date on which the cause of action accrued. In Cooke v. Gill [1873] LR 8 CP 107 Brett J defined "a cause of action" to mean "every fact which is material to be proved to entitle the plaintiff to succeed." This definitio