Limits in Toxic Tort Litigation in Malaysia: A Comparison of Limitation Acts

In the previous blog entry on mesothelioma and asbestos litigation, I queried as to why mesothelioma litigation in Malaysia is non-existent, despite the past and continuing use of asbestos in certain manufacturing firms in Malaysia. Lim Heng Huat opined that the absence of asbestos litigation may be attributable to ‘poor medical verification of diagnosis’[1]. However, in my view, the answer to this question may well be contained in the Limitation Act 1953[2], compounded with the lack of clinician expertise and diligence in diagnoses.

Malaysia’s Limitation Act limits actions in tort to commence not more than six years after the occurrence of the damage[3] and unlike laws in Australia and the United Kingdom, does not contain provisions for the discretionary extension or exclusion of the time limit allowed by law in relation to tort or personal injuries.

The UK Limitation Act allows for the equitable ‘discretionary exclusion of the time limit’[4] in respect of personal injuries provided that the three years limitation under s11 of the Act (governing personal injuries and death) prejudices the plaintiff or any person he represents, taking into account all circumstances of the case, including the reasons as to why there was a delay and any disability arising after the accrual of the cause of action. In addition to that, the UK Act states that the time limit under s11 is three years from the date of the accrual of the cause of action arising (i.e. when the damage occurred) or from the date of knowledge (if later) of the person injured.[5]

The Malaysian Act states that the action should accrue within six years of the damage and does not take into account the knowledge factor. As mesothelioma is a disease of uncertain aetiology, with a long latency period and the ability to result from exposure to a single fibre or multiple fibres via tortious and non-tortious exposure, it would appear that the statute is problematic. It would be impossible to determine when the damage occurs in the case of mesothelioma, where litigants are often exposed to asbestos throughout their tenure in companies manufacturing asbestos products, and sometimes (due to their residential proximity to asbestos company premises) via environmental exposure. How do we ascertain the exact point when damage occurred?

The New South Wales Act acknowledges the possibility of latency of disease in s60F Subdivision 3 which states that a discretionary extension for latent injury may be granted where the plaintiff was unaware of the fact, nature, extent or cause of the injury, disease or impairment at the relevant time.[6] Similarly, the Victorian Act allows for an extension of time taking into account date of discoverability.[7] Furthermore, the Act states that the cause of action for the purposes of the three year tort limitation accrues on the date on which the person first knows that he has suffered those personal injuries.[8] Hence, in Victoria the action accrues when the person found out that he had mesothelioma, as opposed to Malaysia where the date he discovered he had that injury is immaterial.

Based on these comparisons, it appears that in the field of toxic tort litigation, particularly in relation to mesothelioma and asbestosis where individuals are diagnosed sometimes up to fifty years after exposure to asbestos, Malaysians are unprotected.

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[1] Lim Heng Huat, ‘Occupational Safety and Health in the Asbestos Industry in Malaysia’ http://www.miosh.net/articles/Occupational%20Health/asbestos.doc (Accessed 24 November 2010)

[2] Limitation Act 1953 (Laws of Malaysia Act 254)

[3] Id, s6(1)

[4] Limitation Act 1980 (UK), s33

[5] Id, s11(4)(b)

[6] Limitation Act 1969 (NSW), s60F

[7] Limitation of Actions Act 1958 (VIC), s27L(1)(e)

[8] Id, s5(1A)