REMEDIES IN TORT LAW

7/16/2019 REMEDIES IN TORT LAW

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REMEDIES IN TORT LAW

LAW549

FIRM 1

NUR ELISSA BAHARUDINNOR AKMAR YAKUB

NUR DIANA RAMLAN

MUHAMMAD RAHIMI BIN RADUAN

UMAR FAIZ BIN ABDUL KOHAR

MOHD SYAFIQ BIN AHMAD



Damages

• Damages may be defined as the term used to

describe that sum of monetary compensation

which a judge or court orders a defendant who

has been held liable or has admitted liability for awrongful wrong to pay the successful plaintiff.

• Besides the aim to compensate the plaintiff,

damages are also awarded to achieve some otherobjective for non-compensatory damages.



Types of Damages

Contemptuous/DerisoryDamages Parasitic

Damages

Aggravated Damages

Exemplary Damages(Punitive/Vindictive/Retr

ibutory)

NominalDamages



Nominal Damages

• Nominal Damages

– Torts actionable per se

– Need not prove visible damage but the amount of damages may

depend of this proof

– If there is no damage caused, a token of sum of damages may

be awarded in recognition or to compensate for the technical

liability

• Tay Tuan Kiat v Pritam Singh Brar

– Df built a wall that encroached pf’s land – Pf sued trespass to land

– Held: There was continuing tresspass, but no injury to the pf.

However, court still awarded pf nominal damages of RM500 in

recognition of the fact that pf’s right was infringed.



Contemptuous/Derisory Damages

• Applicable to all types of torts.

• The court may award a very small sum either because the court:

– Disapproves of the pf

– Feels that the action was frivolous or ought to never have been

brought

• The judge has a discretion to instruct the pf to bear the costs of

both parties

• Newstead v London Express Newspaper

– A statement in the df’s newspaper stated that “Harold

Newstead, 30 y/o, Camberwell man, was punished for bigamy.”

– There were in fact two people by the same name and the

statement was true of one man but not the other man (pf)

–Held: Df liable to pf



Parisitic Damages

• Less intangible items such as inconvenience, annoyance and embarrassment

• Pf must establish cause of action in tort and must prove visible damage

• Court can award damages for the visible damages and also for the parasitic

damages

– It latches onto the award for visible damages (e.g. physical or pecuniary injury)

• Campbell v Paddington Corporation

• The claimant owned a flat which overlooked a street. The defendants

erected a grandstand on the occasion of the funeral procession of Edward

VII. The grandstand obstructed the view from the claimant's flat. She

could not rent her flat out to spectators and and was entitled to recover

damages for loss of profits on the grounds of public nuisance. – Pf has established a course of action in tort (nuisance)

– Pf has proved visible damage (pf had suffered some special loss

because she could not rent her flat)

– Therefore, pf can claim for parasitic damage which latches onto the

visible damages (inconvenience – pf’s view was blocked)



Exemplary Damages

• Also known as punitive, vindictive, or retributory

damages.

• It is where the court goes beyond a compensatory

award by adding on an extra amount to punish thedefendant or to make an example of him.

• It is also to demonstrate the court’s disapproval of

the defendant’s bad conduct.

• Exemplary damages are awarded to teach the

defendant that tort does not pay and to deter him

and others from similar conduct in the future.



Aggravated Damages

• Usually awarded in cases of torts of defamation, false

imprisonment and malicious prosecution.

• It is where the defendant had acted maliciously and

had injured the plaintiff’s proper feelings of dignityand pride.

• Damages are compensating the plaintiff for the

greater injury he has suffered by reason of such

conduct by the defendant.



DATO' ABDULLAH HISHAN BIN

HAJI MOHD HASHIM vSHARMA KUMARI SHUKLA

(NO 3)

[1999] 6 MLJ 589



Facts of the case• The plaintiff claimed that he had loaned the defendant a

sum of RM262,350 to enable her to purchase a total of

162,000 shares in Insas Sdn Bhd ('the shares').

• The consideration moving from the defendant was that

she would convert to the personal law of the plaintiff,

Islam, and marry the plaintiff.

• It was also a condition that the defendant would transfer

50% of the shares to the plaintiff with the remaining 50%

to be held by the defendant in her name and to be usedby her in the event of the plaintiff pre-deceasing her.

• The defendant was also required to return the shares to

the plaintiff if she failed to convert and marry the

plaintiff.



Facts of the case

• The defendant denied all plaintiff’s allegations.

• However, the defendant did not take the witness stand

when it was crucial she took the witness stand as she was

the only one able to verify her allegations and dismantleplaintiff’s allegations towards herself. (adverse inference)

• The plaintiff claimed for exemplary damages and

aggravated damages on top of the claim for the return of

his shares and the profit made by the defendant thereof,relying on the fact that the defendant and her husband

had conspired to lead the plaintiff into believing that the

defendant would convert and marry him.



Aggravated damages

• In this case, for the aggravated damages, the plaintiff needs to prove

that the conduct of the defendant was so obnoxious as to warrant an

award

• The plaintiff had undergone a series of humiliation when the

defendant had fabricated the story of them having sexual relationship.• Besides that, there was also an allegation of the plaintiff had assaulted

his maid.

• The defendant put the plaintiff through the indignity of being

subjected to disparaging and contumelious questions.

• This strategy was calculated to cost the plaintiff, bestowed with the

title of a Datukship by the Sultan of Pahang, the maximum harm with

the maximum publicity by the local and foreign media

• However, the entire allegations failed because there wasn’t a witness

who testify to the court.



• The court had considered the fact that theplaintiff was subjected to prolonged and lengthy

cross-examination for more than 14 days withoutlet up by two experienced counsel on mattersthat remained unrebutted.

• Besides, the court also considered the callousmanner of such questioning and by puttingsuggestions which the defendant knew she couldnot establish.

•

Thus, the court decided that the plaintiff hadsatisfied the requirement for the aggravateddamages to be granted. The court grantedRM 500,000 for the damages.



Exemplary damages

• The plaintiff also claimed for the exemplary damages.

• The court in this case referred to Rookes v Barnard &

Ors [1964] AC 1129.

•In Rookes v Barnard, the court asserted that it is nolonger permissible to award exemplary damages.

• Exemplary damages could only be given if it falls under;

– Oppressive, arbitrary or unconstitutional conduct by

government servants

– Conduct calculated to result in profit

– Express authorisation by statute



• In this case, the conduct of the defendant falls under the2nd heading under Rookes v Barnard. (conduct calculatedto result in profit)

• The extension of the meaning given to 'profit' envisagesthe desires and aspirations of the defendant to be calledDatin or Mrs Abdullah and to reap the benefits that gowith such prefix. (all expenses paid to Rome, London,Milan and RM25,000 birthday ring)

• Moreover, the defendant spewed wild allegationsabout the plaintiff which were unsubstantiated;

– being a cheat in a share investment scheme

– favourite drink: Chivas Regal whisky

– procurer of women for VIPs

• Hence, the court awarded RM500,000 under theheading of exemplary damages to the plaintiff.



Principle

• All in all, in order for the court to award

exemplary and aggravated damages, the case

must be based strictly within the 3 headings

under Rookes v Barnard for exemplary, and itmust be shown that the plaintiff suffered

uncalled for treatment based on case-to-case

basis, where the court is satisfied, only thenaggravated damages would be awarded.



OTHER CASES

ON

EXEMPLARY DAMAGES&

AGGRAVATING DAMAGES



The cases which illustrate on

exemplary damages

• Dato Abdullah Hishan bin Haji Mohd Hashim vSharma Kumari Shukla (No 3) (1999) 6 MLJ 589

• Eu Sim Chuan @ Eu Sam Yan v Kris Angsana Sdn

Bhd (2007) 1 MLJ 734• Cheong Fatt Tze Mansion Sdn Bhd v Hotel

Continental Sdn Bhd (2011) 4 MLJ 354

• Syarizan bin Sudirmin (a child claimed throughthe father and his attorney Sudirmin bin Selamat)& Ors v Abdul Rahman bin Bukit & Anor [2010] 8MLJ 530



• Cheong Fatt Tze Mansion Sdn Bhd v

Hotel Continental Sdn Bhd

– In this case the df who owned the

hotel were building a 20-storey

extension to their hotel. – The pf who owned the adjacent land

claimed that the piling works of the

df caused severe cracks to appear in

their heritage building.

– This was about three months after

the pf had completed a RM3 millionfive-year restoration work to the

mansion to restore it to its heritage

status.

– The pf sued the df for negligence

and/or nuisance and claimed

damages. – The court awarded RM750,000 in

exemplary damages because the df’s

conduct calculated to result in a

profit.The pf had therefore proved its

claim for exemplary damages.

• Eu Sim Chuan v Kris Angsana Sdn. Bhd.

• It was an action premised on negligence

where the pf’s property suffered

structural damage as a result of the df in

carrying out construction work at theadjacent site.

• There was no action taken by the df in

the form of precautionary or preventive

steps and measures before commencing

work.

• The High Court took into account theconduct of the df by doing nothing and

waited for the pf to start the action in

court knowing it would take years to

complete and awarded RM500,000.00 in

exemplary damages to the pf.



• Syarizan bin Sudirmin (a child claimed through

the father and his attorney Sudirmin bin

Selamat) & Ors v Abdul Rahman bin Bukit &

Anor

– The first pf was riding a motorcycle with

the second pf as pillion when he noticed agroup of policemen conducting a traffic

inspection in distance.

– At the material time, both the first and

second pfs were 15 years old and the first

pf was not licensed to ride a motorcycle.

– Both pfs was not wearing a crash helmet.

– The first pf made a 'U' turn and sped away

in an attempt to escape the policemen.

– The first df (a policeman in the group) got

on to his motorcycle and chased after the

speeding first pf.

– When the first df drew alongside the first

pf, he kicked at the first pf's motorcyclecausing the first pf to lose control and

crash.

– Both the first and second df sustained

serious injuries.

– The first pf was rendered a paraplegic and

became wheel-chair bound.

– The first pf claimed that after the crash,

the first df severely assaulted and stabbed

him as he lay on the road.

– Besides general and special damages, the

first pf further claimed for exemplary

damages.

– The first pf was entitled to exemplary

damages in addition to compensatory

damages in connection with the first

defendant's act of kicking the motorcycle.

– The first df's act of kicking the first pf's

motorcycle to prevent him from escaping

for a mere breach of traffic regulations

was unjustified, unacceptable and

unlawful under the circumstances.

– It was an unauthorised, willful, wrongful

and oppressive act.

– The award of exemplary damages was

thus to mark the court's disapproval of the first df's unwarranted, willful,

oppressive and wrongful conduct and to

deter him from repeating it.

– On the facts, a sum of RM50,000 was

reasonable as exemplary damages.



The cases which illustrate on

aggravated damages

• Cassell & Co Ltd v Broome (1972) AC 1027

• Roshairee Abdul Wahab v Mejar Mustafa Omar

& Ors (1997) 1 CLJ Supp 36



• Cassell & Co Ltd v Broome

– Df (publisher and writer of a book)

wrote that pf, who was retired but

once well-known naval officer,

committed a wrong which led to awartime disaster.

– Held: Df realized the profits that he

would obtain from the sale of the

book would be more than to

compensate for the amount of

damages that he would have to

pay to pf. Df ordered to pay 15,000

pounds as general damages and

25,000 pounds exemplary

damages to pf.

• Roshairee Abdul Wahab v Mejar

Mustafa Omar & Ors

– Pf (participant in an orientation

program, joined Royal Malay

Regiment) was ragged andassaulted by both dfs which

caused him to become deaf in

both ears.

– Held: Although the ragging act was

unauthorized by the govt as the

employer of df, they were carried

out during df’s normal course of

duty. Court awarded aggravated

damages to the ragging victim, for

instead of being protected by his

seniors, he was made to sufferhumiliation, loss of pride and self-

esteem. The court also stated that

in assessing aggravated damages ,

all the circumstances of the case

including the character of pf, is to

be taken into account.

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REMEDIES IN TORT LAW