Hashim Yeop Sani Acting CJ (Malaya):

There was a road accident on 14 July 1981 involving a motorcycle and a motorcar. The motorcyclist and his pillion rider sustained injuries. On 16 July 1981 the motor cyclist died at the Taiping General Hospital of septicaemia and gasgangrene, secondary to multiple fractures.

On 19 July 1983 the administrator of the estate of the motor cyclist together with the pillion rider took out a writ against the defendant claiming damages on the grounds of negligence of the defendant in driving his motor vehicle. The defendant then filed his statement of defence and counter claim.

On 4 January 1985 pursuant to leave of the Court given on 22 January 1984 under O. 73 r. 8 of the Rules of the High Court 1980 the defendant took out third party notices against the Superintendent, District Hospital, Taiping and the Government of Malaysia as third parties. The claims of the defendant against the third parties were for contribution and/or indemnity under s. 10(1) of the Civil Law Act 1956.

The third parties denied that the defendant is entitled to contribution or be indemnified by them. Pursuant to the leave of the Court on 6 March 1981 the third parties amended their defence by pleading that the defendant's action against the third parties was statute barred by reason of s. 2(a) of the Public Authorities Protection Act 1948.

It is convenient at this juncture to set out the relevant statutory provisions.

Section 2(a) of the Public Authorities Protection Act 1948 provides for the protection of persons acting in the execution of statutory or public duty against any suit, action, prosecution or proceeding and such suit, action, prosecution or proceeding shall not lie or be instituted unless it is commenced within thirty-six months next after the act, neglect or default complained of or, in the case of a continuance of injury or damage, within thirty-six months next after the ceasing thereof.

Section 10(1)(c) of the Civil Law Act 1956 provides that where damage is suffered by any person as a result of a tort:

any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise, so, however, that no person shall be entitled to recover contribution under this section from any person entitled to be indemnified by him in respect of the liability in respect of which the contribution is sought.

When the case came up for hearing before the learned Judge in the High Court Ipoh on 3 October 1987 the Judge acceded to the request of Counsel for the third parties that the defence of limitation raised by them against the defendant be tried as a preliminary point of law. The Judge heard submissions and ruled that the defence of limitation succeeded and dismissed the defendant's claim against the third parties. Hence the appeal.

At the outset it may be observed that s. 10(1)(c) of the Civil Law Act is not an easy statutory provision to construe. The provision is more or less a direct copy of s. 6 (1)(c) of the Law Reform (Married Woman and Tortfeasors) Act 1935 of the United Kingdom. In Merlihan v. A.C. Pope, Ltd. & J.W. Hibbert [1946] KB 166 the Court examined the provisions of the 1935 Act. It was argued in that case that in so far as concerned the defendants as against the third party, the date of the accident, 15 March 1943, was irrelevant and that the date of the cause of action as between them must be taken to have been 14 June 1945 because that was the first date on which they became liable by the finding of the Court. Thus it was argued that in a third party proceeding for contribution the Limitation Act has no application. But Birkett J held that the third party was protected by the Limitation Act 1939. He was also of the opinion that when s. 6(1)(c) of the 1935 Act was drafted that particular problem was not foreseen by the draftsman.

In Hordern Richmond, Ltd. v