remedies in tort law
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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
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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.
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Types of Damages
Contemptuous/DerisoryDamages Parasitic
Damages
Aggravated Damages
Exemplary Damages(Punitive/Vindictive/Retr
ibutory)
NominalDamages
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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.
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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
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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)
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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.
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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.
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DATO' ABDULLAH HISHAN BIN
HAJI MOHD HASHIM vSHARMA KUMARI SHUKLA
(NO 3)
[1999] 6 MLJ 589
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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.
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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.
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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.
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• 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.
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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
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• 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.
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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.
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OTHER CASES
ON
EXEMPLARY DAMAGES&
AGGRAVATING DAMAGES
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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
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• 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.
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• 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.
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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
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• 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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