Meaning of “installation operator” for purposes of Part
For the purposes of this Part, “installation operator” means— (a) a person licensed under this Act by the appropriate authority as the operator of a nuclear installation; or (b) a person who but for the cancellation or suspension of a licence issued under this Act would be the holder of such a licence.
Liability of installation operator
(1) The installation operator shall be liable for nuclear damage upon proof that such damage has been caused by a nuclear incident— (a) in his nuclear installation; or (b) involving nuclear material coming from or originating in his nuclear installation, and occurring— (i) before liability with regard to the nuclear incident involving the nuclear material has been assumed, pursuant to the express terms of a contract in writing, by another installation operator; or (ii) in the absence of such express terms, before another installation operator has taken charge of the nuclear material; or (c) involving nuclear material sent to his nuclear installation, and occurring— (i) after liability with regard to a nuclear incident involving the nuclear material has been assumed by him, pursuant to the express terms of a contract in writing, from another installation operator; or (ii) in the absence of such express terms, after he has taken charge of the nuclear material: Provided that if nuclear damage is caused by a nuclear incident occurring in a nuclear installation and involving nuclear material stored therein incidental to the carriage of such material, paragraph (a) shall not apply where another installation operator or any other person is solely liable as provided in paragraph (b) or (c). (2) The installation operator shall be liable for such nuclear damage upon proof that the damage has been caused by a nuclear incident involving nuclear material in the course of carriage— (a) to his nuclear installation from a place outside Malaysia from the time that the conveyance in which the nuclear material is carried enters Malaysia; or (b) from his nuclear installation to a place outside Malaysia up to the time that the conveyance in which the nuclear material is carried leaves Malaysia. (3) Subsection (2) shall not apply where— (a) there is any bilateral or multilateral arrangement to the contrary between the Government of Malaysia and the government of the country from which or to which the nuclear material is carried; or (b) there is any applicable provision in force to the contrary in an international convention to which the Government of Malaysia and the government of the country from which or to which the nuclear material is carried are parties; and where there is such arrangement or convention to the contrary in force, the liability of the installation operator and all other persons shall be determined in accordance therewith.
Liability for nuclear damage from nuclear material in transit
(1) Where nuclear material is being carried through Malaysia in transit on its way to its intended destination outside Malaysia and a nuclear incident occurs in Malaysia, the person licensed to transport the nuclear material by the competent authority in the country from which the nuclear material is being carried out of shall be liable for any nuclear damage caused. (2) No person shall carry any nuclear material in transit through Malaysia to its intended destination outside Malaysia unless such person— (a) furnishes such financial security as may be required by the Board; and (b) furnishes proof to the satisfaction of the Board that he is authorized by the country from which the nuclear material is being carried out of so to do.
Absolute and exclusive liability
(1) The liability of the installation operator for any nuclear damage shall be absolute. (2) Except as otherwise provided in this Part, no person other than the installation operator shall be liable for nuclear damage.
Exceptions to liability
(1) Notwithstanding any provision to the contrary in this Act, no person shall be liable for any nuclear damage caused by a nuclear incident directly due to an act of armed conflict, hostilities, civil war, insurrection or a grave natural disaster of an exceptional character. (2) The installation operator shall not be liable under this Act for nuclear damage— (a) to the nuclear installation itself or to any property on the site of that nuclear installation which is used or to be used in connection with that nuclear installation; or (b) to the conveyance in which the nuclear material involved was carried at the time of the nuclear incident.
Recourse action
(1) Where nuclear damage has been caused by a nuclear incident, the installation operator concerned shall have a right of recourse only— (a) if there is such a right pursuant to the express terms of a contract in writing with another installation operator or any other person; (b) if the nuclear incident results from an act or omission with intent to cause damage, against the person who has acted or omitted to act with such intent; or (c) if the nuclear incident results from stolen nuclear material, against the person who stole or unlawfully received the nuclear material causing the incident. (2) The right of recourse of the installation operator concerned under this section shall not in any way affect his liability under section 45 to persons other than those referred to in this section.
Governments to claim compensation for nuclear damage to environment
Where there is any nuclear damage to the environment, a claim for compensation shall be made by the Government of Malaysia, the Government of a State in Malaysia or by both, as the case may be, according to whether the segment of the environment that is damaged is within the jurisdiction of the Government of Malaysia, of a State in Malaysia or of both.
Gross negligence or intentional act of claimant
If the installation operator proves that the nuclear damage resulted wholly or partly either from the gross negligence of the person suffering the damage or from an act or omission of such person with intent to cause damage, the court may relieve the installation operator from paying compensation in respect of the damage suffered by such person.
Liability not affected by Act
Nothing in this Act shall affect the liability outside this Act of the installation operator for nuclear damage for which, by virtue of paragraph 46(2)(b), he is not liable under this Act.
Carrier of nuclear material or person handling radioactive waste designated as installation operator
The appropriate authority may, subject to such terms and conditions as may be prescribed, designate a carrier of nuclear material or a person handling radioactive waste, at the request of the carrier or such person and with the consent of the installation operator concerned, as installation operator in place of the installation operator concerned in respect of such nuclear material or radioactive waste respectively. Upon such designation such carrier or such person shall be considered as an installation operator for the purposes of this Part.
Several installation operators liable
(1) Where nuclear damage engages the liability of more than one installation operator, all the installation operators involved shall, in so far as the damage attributable to each operator is not reasonably separable, be jointly and severally liable. (2) Where a nuclear incident occurs in the course of carriage within Malaysia of nuclear material, either in one and the same conveyance or, in the case of storage incidental to carriage, in one and the same nuclear installation, and causes nuclear damage which engages the liability of more than one installation operator, the total liability shall not exceed the amount established under section 59. (3) Subject to subsection 61(2), in neither of the cases referred to in subsections (1) and (2) shall the liability of any one installation operator exceed the amount established under section 59.
Liability of single operator of several nuclear installations involved in one nuclear incident
Subject to section 43, where several nuclear installations of one and the same installation operator are involved in one nuclear incident, such installation operator shall be liable in respect of each nuclear installation involved up to the amount established under section 59.
Non-nuclear damage deemed nuclear damage
Whenever both nuclear damage and damage other than nuclear damage have been caused by a nuclear incident or jointly by a nuclear incident and one or more other occurrences, such damage shall, to the extent that it is not reasonably separable from the nuclear damage, be deemed for the purposes of this Part to be nuclear damage caused by that nuclear incident. Where, however, damage is caused jointly by a nuclear incident for which provision is made under this Part and by an emission of ionizing radiation for which provision is not made under this Part, nothing in this Act shall limit or otherwise affect liability, either as regards any person suffering nuclear damage, or by way of recourse or contribution, or of any person who may be held liable in connection with that emission of ionizing radiation.
Certificate to carrier
(1) The installation operator shall provide a carrier of nuclear material with a certificate issued by or on behalf of the insurer or other financial guarantor furnishing the financial security required under section 60. (2) The certificate shall state the name and address of the installation operator and the amount, type and duration of the financial security and these particulars shall not be disputed by the person for whom or on whose behalf the certificate was issued. (3) The certificate shall also indicate the nuclear material in respect of which the financial security applies and shall include a statement by the appropriate authority that the person designated is an installation operator within the meaning of this Part.
Several nuclear installations on same site
The appropriate authority may determine that several nuclear installations of one installation operator which are located at the same site shall be considered as a single nuclear installation for the purposes of this Part.
Investigation of nuclear incidents
(1) Any nuclear incident involving the application of this Act shall be forthwith reported to the Board. The installation operator concerned shall provide the Board with all information which it requires with a view to evaluating the extent of nuclear damage involved. (2) The Board shall make an investigation of the cause and the extent of the nuclear damage of the nuclear incident, and to the extent that the Board deems it to be in the public interest, the Board’s findings may be made available to the public and to the parties involved, for the purposes of this Part.
Compulsory examination and treatment
(1) After the occurrence of a nuclear incident, the Board may adopt such measures as are appropriate to determine the persons who were or might have been exposed to ionizing radiation resulting from such nuclear incident. (2) Notwithstanding any law to the contrary and for the purposes of carrying into effect the measures referred to in subsection (1), the Board may— (a) require any person suspected or likely to be affected by exposure to ionizing radiation to be medically examined by a competent authority or body appointed by the Minister; (b) cause any such person to be removed to a hospital or other place specially designated for the treatment, detection or observation of any nuclear damage to such person, and to detain such person until he can be discharged without danger to himself or others; or (c) cause a post-mortem examination to be made on any corpse where the death is suspected to have been caused by a nuclear incident or exposure to ionizing radiation. (3) Any person who refuses, fails or neglects to submit for examination, treatment, detection or observation under this section or refuses or obstructs the post-mortem examination of a corpse under this section commits an offence and is, on conviction, liable to imprisonment for a term not exceeding one month or a fine not exceeding two hundred ringgit or both.
Limit of liability
(1) Notwithstanding any law to the contrary but subject to this Part, the liability of an installation operator for nuclear damage under this Act shall be limited to an amount equivalent at the commencement of this Act to fifty million ringgit for any one nuclear incident. (2) The Board may, taking into account the size and nature of the nuclear installation, the extent of the damage involved or any other circumstances, prescribe a different limit of liability from that provided under subsection (1) but such different limit of liability shall in no event be less than an amount equivalent at the commencement of this Act to twelve million ringgit for any one nuclear incident. (3) The amounts referred to in subsections (1) and (2) shall not include any interest or costs awarded by the court in actions for compensation for nuclear damage.
Financial security
(1) No licence to operate a nuclear installation or to import or export nuclear material into or from Malaysia shall be issued under this Act by the appropriate authority to an installation operator or any other person unless the installation operator or other person secures and maintains insurance or other financial security covering his liability for nuclear damage under this Act. (2) The Board shall prescribe the type and terms of the insurance or other financial security which shall be secured and maintained by the installation operator or any other person, and such insurance or other financial security may include private insurance, private contractual indemnity, self-insurance or a combination thereof or other evidence of financial ability to pay compensation under this Act. (3) Notwithstanding any law to the contrary, no insurer or other financial guarantor may suspend, cancel or vary the type and terms of the insurance or other financial security provided under this section without giving notice in writing of at least two months to the Board of its intention so to do or, in so far as such insurance or other financial security relates to the carriage of nuclear material, during the period of the carriage in question.
Government indemnity
(1) The Government of Malaysia may, where it considers it necessary so to do, indemnify the installation operator liable and provide the necessary funds for the payment of claims for compensation for nuclear damage which have been established against the operator to the extent that the yield of insurance or other financial security is inadequate to satisfy such claims: Provided that the indemnity so provided by the Government of Malaysia, together with the yield of insurance or other financial security, shall not in the aggregate exceed the maximum amount established under section 59 for any one nuclear incident. (2) Notwithstanding subsection (1), where it appears that claims for compensation for nuclear damage caused by a nuclear incident may exceed the limit of liability established under section 59, the Board shall furnish a report to the Minister with its recommendations for the appropriation of additional funds for the payment of claims for such compensation and the Minister shall cause the report to be laid forthwith before the Dewan Rakyat. (3) Upon such report being laid before it, the Dewan Rakyat may by resolution appropriate additional funds for such purpose if it considers it necessary in the interests of the nation that the limit of liability established under section 59 should be exceeded but not otherwise.
Intervention in court proceedings
When, after the occurrence of a nuclear incident, the Government of Malaysia intends to indemnify the installation operator pursuant to section 61, the court adjudicating any claim for compensation arising from the nuclear incident shall allow the Government of Malaysia to intervene in the proceedings at any time before final judgment.
Prescription of rights and actions
(1) Subject to subsection (2), rights to compensation under this Act shall cease after twenty years from the date of the nuclear incident. (2) Actions for compensation under this Act shall be barred unless brought within twenty years from the date on which the person suffering nuclear damage had knowledge or should reasonably have had knowledge of such damage: Provided that— (a) any person who claims to have suffered nuclear damage and who has brought an action for compensation within the period applicable pursuant to this subsection may amend his claim to take into account any aggravation of the damage, even after the expiry of that period; and (b) final judgment has not been entered in the case.
Prescription with respect to nuclear material stolen, lost, jettisoned or abandoned
(1) Where nuclear damage is caused by a nuclear incident involving nuclear material which had at any time been stolen, lost, jettisoned or abandoned, the period within which to bring actions for compensation pursuant to section 63 shall be computed from the date of that nuclear incident and not from the date such nuclear material had been stolen, lost, jettisoned or abandoned. (2) For the avoidance of doubt, the actions for compensation in the circumstances referred to in subsection (1) shall lie against the installation operator by virtue of section 45 but without prejudice, however, to his right of recourse under section 47, and any person against whom the installation operator has a right of recourse under section 47 shall not be entitled to bring any claim for compensation against the installation operator.
When claims exceed maximum limit
When it appears that the nuclear damage from a nuclear incident may exceed the limit of liability established under section 59, and upon application by the Government of Malaysia where it intends to act pursuant to section 61, the court having jurisdiction in the matter shall issue such orders as may be necessary to assure the equitable distribution of compensation, including orders apportioning the payments to be made to claimants and orders permitting partial payment to be made before final determination of the total claims.
Exclusions
Without prejudice to rights of compensation under any other law, the Minister may, if he determines that the small extent of the risks involved so warrants, exclude any prescribed small quantities of any radioactive material, nuclear material or prescribed substance from the application of this Part.
Provisions on this page are reproduced verbatim from official open data. See the attribution line.
Text as at 1 January 2006 (LOM reprint); amendments made after that date may not be incorporated. Read the official text ↗
Source: Laws of Malaysia, Attorney General's Chambers of Malaysia (lom.agc.gov.my). Not a copy of the Gazette printed by the Government Printer (Interpretation Acts 1948 and 1967, s 61).