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REMEDIES IN TORT LAW

LAW549
FIRM 1
NUR ELISSA BAHARUDIN NOR 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 a wrongful wrong to pay the successful plaintiff. Besides the aim to compensate the plaintiff, damages are also awarded to achieve some other objective for non-compensatory damages.

Nominal Damages

Contemptuous/ Derisory Damages

Parasitic Damages

Types of Damages
Exemplary Damages (Punitive/Vindictive/Retr ibutory)
Aggravated Damages

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 pfs 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 pfs 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 dfs 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 pfs 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 the defendant or to make an example of him. It is also to demonstrate the courts disapproval of the defendants 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 plaintiffs proper feelings of dignity and 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 v SHARMA 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 used by 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 plaintiffs 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 dismantle plaintiffs 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 wasnt a witness who testify to the court.

The court had considered the fact that the plaintiff was subjected to prolonged and lengthy cross-examination for more than 14 days without let up by two experienced counsel on matters that remained unrebutted. Besides, the court also considered the callous manner of such questioning and by putting suggestions which the defendant knew she could not establish.

Thus, the court decided that the plaintiff had satisfied the requirement for the aggravated damages to be granted. The court granted RM 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 no longer 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 the 2nd heading under Rookes v Barnard. (conduct calculated to result in profit) The extension of the meaning given to 'profit' envisages the desires and aspirations of the defendant to be called Datin or Mrs Abdullah and to reap the benefits that go with such prefix. (all expenses paid to Rome, London, Milan and RM25,000 birthday ring)

Moreover, the defendant spewed wild allegations about 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 the heading 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 it must be shown that the plaintiff suffered uncalled for treatment based on case-to-case basis, where the court is satisfied, only then aggravated 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 v Sharma 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 through the father and his attorney Sudirmin bin Selamat) & Ors v Abdul Rahman bin Bukit & Anor [2010] 8 MLJ 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 million five-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 dfs 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 pfs property suffered structural damage as a result of the df in carrying out construction work at the adjacent 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 the conduct 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 a group 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 motorcycle causing 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 a wartime 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 and assaulted 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 dfs normal course of duty. Court awarded aggravated damages to the ragging victim, for instead of being protected by his seniors, he was made to suffer humiliation, loss of pride and selfesteem. 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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