Pajan Singh Gill JCA:

[1] The matters that confront us in this appeal are basically on the issue of limitation, whether in not pleading it in certain instances, a party is disentitled to raise the defence of limitation, and whether a claim on behalf of the estate of a deceased person for loss of earnings for the 'lost years' of a deceased, is allowable, if the deceased was unemployed at the time of death.

[2] The administrator of the estate of Chia Miew Hien, one Lee Cheng Yee, brought a suit for negligence against the 1st and 2nd defendants, owner and driver of motor lorry bearing registration number TD 9278. As a result of the alleged negligence of the 2nd defendant, the deceased Chia Miew Hien suffered massive injuries in a motor accident and died instantly.

[3] On pursuing the notes of evidence and the grounds of judgment we note that at the trial learned counsel for the respondent/defendant had conceded to total liability.

[4] It was the contention of the respondent/defendant before the trial judge, and even before us, that the appellant/plaintiff's reliefs were crafted under s. 7 of the Civil law Act 1956. We wish to interpose at this stage to say that, the accident took place on 13 March 1983, and therefore the Civil Law (amendment) Act 1984 which came into effect on 1 October 1984, does not apply to this case.

Not more than one action shall be brought for and in respect of the same subject matter of complaint if, and every such action shall be brought within three years after the death of such deceased person.

[Emphasis Added]

[6] In connection with the present case it was the submission of the respondent/defendant's counsel that the suit was only filed on 13 January 1989, some five years after the death of the deceased in question.

[7] In his riposte, the appellant/plaintiff's counsel submitted that the issue of limitation was not specifically pleaded in the defence of the respondent, and neither was a request made that the matter be set down as a preliminary issue. As such, it was his submission that the respondent is not entitled to rely on the limitation to defeat the claim.

[8] We would in principle have been persuaded by this submission, but for the timely intervention of the respondent's counsel who drew our attention to the case of Kuan Hip Peng v. Yap Yin & Anor, [1965] 1 MLJ 252. The brief facts of the case were that the plaintiff who in fact was suing by his next friend was claiming compensation under s. 7 of the Civil Law Ordinance for loss arising from the death of his father as a result of the alleged negligent driving of a motor vehicle owned by the first defendant and driven by the second defendant. The alleged negligent driving occurred on 22 November 1960 and the plaintiff's father died on 23 November 1960.

[9] A writ was issued on 27 November 1963, ie, four days after the expiry of the period of three years in contravention of s. 7(5) of the Civil Law Ordinance. No defence was filed by the defendants, but on 27 January 1964, the defendants took out a summons under O. 25 r. 4 for an order that all proceedings in the action be stayed on the ground that it was frivolous, vexatious, and an abuse of court process. The application was supported by an affidavit stating, "The action commenced by the writ of summons herein must necessarily fall because it was not brought within three years after the death of the deceased person in question."

[10] The application came before Hashim J (as he then was) who adjourned it into open court for hearing, and in the event, made an order that the plaintiff's suit be dismissed.

[11] On appeal to the Federal court, Thompson LP in dismissing the appeal had this to say:

Now it is clear from the general course of reas