Yew Bon Tew v Kenderaan Bas Mara
| Jurisdiction | UK Non-devolved |
| Judgment Date | 1982 |
| Date | 1982 |
| Year | 1982 |
| Court | Privy Council |
Statute - Retroactive effect - Limitation of action - 12-month period of limitation - Later enactment substituting longer limitation period - Whether affecting accrued right to plead time-bar -
On April 5, 1972, a bus belonging to the defendants, a public authority which operated a bus service in Selangor, and driven by one of their servants collided with a motor cycle ridden by the plaintiffs. The plaintiffs were injured. At the date of the accident the Public Authorities Protection Ordinance 1948 provided that an action against a public authority in respect of any neglect or default in the carrying out of its public duties had to be brought within 12 months and, accordingly, on April 5, 1973, any action by the plaintiffs in respect of the accident became statute barred. In June 1974 the Public Authorities Protection (Amendment) Act 1974 came into force. That Act substituted a period of three years for the 12 months previously provided by the Ordinance of 1948. On March 20, 1975, the plaintiffs issued a writ against the defendants claiming damages for personal injuries caused by the negligence of the bus driver. The defendants pleaded that the plaintiffs' claim was barred by virtue of the Ordinance of 1948. In the High Court the judge held that the claim was not barred. The defendants appealed. The Federal Court held that the defendants' right to plead the time-bar which had accrued on April 5, 1973, was a right protected by the Interpretation Act 1967F1 and was not affected retrospectively by the Act of 1974. The court allowed the appeal.
On the plaintiffs' appeal to the Judicial Committee: —
Held, dismissing the appeal, that where a defendant had acquired an entitlement to plead a time-bar, that entitlement constituted an accrued right which was protected by section 30 (1) (b) of the Interpretation Act 1967 and that any later legislation providing for a longer limitation period (whether or not the legislation was to be classified as procedural) was not to be construed retrospectively so as to deprive the defendant of his defence unless such a construction was unavoidable on the language used; and that, accordingly, since on April 5, 1973, the defendant had an accrued right to plead that the plaintiffs' action was barred by the Ordinance of 1948 and since the Act of 1974 could not be construed as depriving a defendant of a limitation defence which he already possessed, the Act did not operate retrospectively and the action remained barred (post, pp. 1033B–D, F–G, H–1034C, 1035D–E).
The following cases are referred to in the judgment of their Lordships:
Harris v. Quine (
Maxwell v. Murphy (
Mitchell v. Harris Engineering Co. Ltd. [
Noor Mohamed Yousoff v. Teo Kai Tee (
Rex v. Chandra Dharma [
Rodriguez v. R. J. Parker (Male) [
Whittam v. W. J. Daniel & Co. Ltd. [
Ydun, The [
The following additional cases were cited in argument:
Abbot v. Minister for Lands [
Australian Iron & Steel Ltd. v. Hoogland (
Batting v. London Passenger Transport Board [
Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg A.G. [
Carter-Fea v. Graham (
Coleman v. Shell Company of Australia Ltd. (
Director of Public Prosecutions v. Lamb [
Doro v. Victorian Railways Commissioners [
Grafton Street, London W.1, in re 14 [
International Military Services Ltd. v. Capital and Counties P.L.C. [
Ozog v. Registrar of Motor Vehicles (
Public Prosecutor v. Datuk Haji Harun bin Haji Idris [
Radivojevic v. L.R. Industries Ltd. (unreported), May 14, 1982; Court of Appeal, (Civil Division) Transcript No. 200 of 1982,
Reg. v. Deery [
Rownson, In re (
Sifam Electrical Instrument Co. Ltd. v. Sangamo Weston Ltd. [
Turnbull v. Forman (
APPEAL (No. 36 of 1980) by Yew Bon Tew alias Yong Boon Tiew and Ganesan s/o Thaver (an infant) suing by his guardian and next friend Yew Bon Tew (the plaintiffs) from a judgment (November 27, 1979) of the Federal Court of Malaysia (Appellate Jurisdiction) (Raja Azlan Shah C.J., Malaya, Chang Min Tat and Syed Othman F.JJ.) by which that court allowed the appeal by the defendants, Kenderaan Bas Mara, from a decision
(April 13, 1977) of Mohd. Azmi J. in the High Court of Malaya overruling the defendant's preliminary objection in civil suit 1975 No. 416 that the plaintiffs were out of time by virtue of the Public Authorities Protection Ordinance 1948.
The facts are stated in the judgment of their Lordships.
Nigel Murray and K.C. Cheah (of the Bar of Malaysia) for the plaintiffs.
Robert Gatehouse Q.C. and Zainur Zakaria (of the Bar of Malaysia) for the defendants.
October 7. The judgment of their Lordships was delivered by LORD BRIGHTMAN.
This appeal from the Federal Court of Malaysia raises the question whether claimants, whose cause of action became statute barred in 1973 by virtue of the Public Authorities Protection Ordinance 1948 (“the Ordinance of 1948”), can nevertheless issue a writ in 1975 in reliance upon the Public Authorities Protection (Amendment) Act 1974 (“the Act of 1974”) which substituted a limitation period of 36 months for the previous period of 12 months.
On April 5, 1972, a motor bus belonging to the defendants was being driven along a road in the State of Selangor. It collided with a motor cycle driven by the first plaintiff with the second plaintiff as pillion passenger. Both were injured.
The defendants are a statutory body and the accident occurred during the course of the defendants' public duties. Consequently the plaintiffs' cause of action was liable to become statute barred on April 5, 1973, pursuant to the Ordinance of 1948, section 2 of which reads:
“Where, after the coming into force of this Ordinance, any suit, action, prosecution or other proceeding is commenced in the Federation against any person for any act done in pursuance or execution or intended execution of any written law or of any public duty or authority or in respect of any alleged neglect or default in the execution of any such written law, duty or authority the following provisions shall have effect – (a) the suit, action, prosecution or proceeding shall not lie or be instituted unless it is commenced within 12 months next after the act, neglect or default complained of or, in the case of a continuance of injury or damage, within 12 months next after the ceasing thereof; …”
Unfortunately those advising the plaintiffs did not appreciate that the defendants were a public authority. As a result time slipped by without the institution of proceedings before the 12 month limitation expired on April 5, 1973.
On June 5, 1974, the Act of 1974 was passed. It came into force on June 13. It was expressed to amend the Ordinance of 1948 by deleting the words “12 months” wherever appearing in paragraph (a) of section 2 and substituting the words “36 months.” Immediately before the Act of 1974 came into force the plaintiffs' cause of action had been statute barred for 14 months. A further nine months went by and on March 20, 1975, the plaintiffs issued a writ claiming damages for personal injuries caused by the...
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