INTRODUCTION

The well-known legal maxim “ubi jus ibi remedium”, translated to “where there is a wrong, there is a remedy” means no wrong should be allowed to go without any compensation if it can be redressed by the court of law. The Malaysian courts have wide discretionary power in awarding legal remedies. In this article, we would discuss some of the monetary remedies that are available to parties in a legal suit.

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GENERAL DAMAGES

General Damages are intangible, non-monetary losses that are not quantifiable at the time of the trial. Some of the examples of general damages are loss of reputation in a defamation claim, pain and suffering, loss of amenities, psychological effects in car accident claims etc.

It is important to note that the Court has a wide discretion when it comes to the  assessment of the general damages or losses and may award any award which it deems fit and/or reasonable.  

In Sambaga Valli a/p KR Ponnusamy v Datuk Bandar Kuala Lumpur & Ors and another appeal [2018] 1 MLJ 784, the Court of Appeal laid down some factors to be considered in awarding general damages for personal injuries in car accident cases.

[14] It is trite that a person injured by another’s wrong is entitled to general damages for non-pecuniary such as his pain and suffering, hardship, discomfort, mental distress and loss of amenities of life. There is no standard rule to measure the damage in such cases. The courts usually determine the amount based on a fair and reasonable standard, free from sentimental or fanciful standards, and based upon evidence adduced. The court should also consider the age, health and condition of the injured party pre-injury as compared with his condition after the injury. The court also consider the need for medical, psychological or physical symptoms, and the impact on the plaintiff’s conduct and lifestyle before apportioning the amount of damages.

Based on the above guidance set out by the court, the parties seeking for compensation should adduce the necessary relevant documents to assist the court to quantify the amount of damages.

Another point to note would be, in the event a party is not satisfied with the amount of damages awarded by the court, he or she is entitled to appeal against the decision at a court with higher jurisdiction. (Yee Hup Transport & Co & Anor v Wong Kong [1967] 2 MLJ 93)

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SPECIAL DAMAGES

Unlike general damages which are not quantifiable, special damages on the other hand refers to monetary losses that have a measurable dollar amount. It is a well-established principle that special damages must be specifically pleaded  and particularised in the claim (Tan Kuan Yau v Suhindrimani [1985] 2 MLJ 22 (FC)). If a party seeking for special damages fails to plead them, then evidence in respect of those items cannot be led in court (YeahEh Farn v Alliance Bank (M) Bhd [2014] 3 CLJ 803).

Further, special damages must be proven. A party claiming for special damages must produce sufficient evidence to prove the quantum of the special damages claimed. Documents such as invoices, purchase orders, debit notes etc. would be useful in proving losses incurred or suffered.. Apart from that, a party claiming for special damages should also prove that such damages are not too remote, as covered under s74(1) of the Malaysia Contracts Act 1950. In other words, the loss or damage suffered must be directly related to the actions or behaviour of the defendant (the party being sued)

 

EXEMPLARY DAMAGES / PUNITIVE DAMAGES 

These are also known as retributory damages and are awarded in addition to actual damages to punish the outrageous conduct of the defendant which offended the morals of the society. Some examples include reckless driving, posting pornography photographs on the internet, acted with violence or cruelty etc.

Exemplary damages are considered appropriate in situations where a person’s conduct displays a blatant disregard for the rights of another and enables a court to express the position that such behaviour will not be tolerated.

It is recognised by the Court of Appeal in Tradewinds Properties Sdn Bhd v Zulhkiple bin A Bakar & Ors [2019] 1 MLJ 421 that exemplary damages/punitive damages would only be awarded in two categories of cases propounded in Rookes v Barnard [1964] AC 1129, as follow:

1. i) Oppressive, arbitrary or unconstitutional action by the servants of the government; and
2. ii) Cases where defendant’s conduct had been calculated by him to make a profit for himself which may well exceed the compensation payable to the plaintiff.

In addition, the Court of Appeal in Sambaga Valli a/p KR Ponnusamy v Datuk Bandar Kuala Lumpur & Ors and another appeal [2018] 1 MLJ 784 listed out 3 principles in assessing the quantum of exemplary damages in the case:

“… exemplary damages are not intended to compensate the plaintiff and are not recoverable as a matter of right. The amount of the exemplary damages award is left to the judge’s discretion and is determined by considering the character of the defendant’s misconduct, the nature and extension of the plaintiff’s injury and the means of the defendant. The quantum of exemplary damages to be awarded must be appropriate to the wrongdoing inflicted to the parties involved.”

Generally, an order for exemplary damages will only be granted by the court if the circumstances of the case fall within the two categories as well as fulfilling the three considerations propounded in Rookes v Barnard.

 

NOMINAL DAMAGES

Nominal damages are a small sum of money awarded by the court as damages to a party who has suffered a legal wrong but no actual financial loss. In Syarikat Kemajuan Kuari (M) Sdn Bhd v Su bin Abdullah & Anor [2003] 1 MLJ 401, the Court cited the McGregor on Damages (16th Ed, 1997) at page 281 which highlighted two circumstances that give rise to an award of nominal damages:

1. i) firstly, where there is injuria sine damno. An injuria or wrong which entitles the plaintiff to a judgment for damages in his favour, but where there is no actual loss or damage, such judgment will be for nominal damages only; or
2. ii) secondly, where damage is shown but its amount is not sufficiently proven. The inadequate or absence of evidence of such amount of loss would entitle the plaintiff to nominal damages only.

In Pancaran Prima Sdn Bhd v Iswarabena Sdn Bhd [2020] MLJU 1273, the Federal Court stated that nominal damages according to past Malaysian judicial precedents can range from RM 10 to RM 2,000.00. For example, in Hilbourne v Tan Tiang Quee [1972] 2 MLJ 94 the High Court awarded the plaintiff substantial damages for loss of opportunity to purchase a piece of land. On appeal, the Court of Appeal reduced the damages to nominal damages of RM10 primarily because the plaintiff did not suffer any pecuniary loss.

Another example would be in the case of Industrial and Agricultural Distribution Sdn Bhd v Golden Sands Construction Sdn Bhd [1993] 3 MLJ 433 concerning the plaintiff’s claim for depreciation of an excavator because the defendant had used it for more than two-months period. The High Court awarded RM100 as the plaintiff could not prove the depreciation.

 

QUANTUM MERUIT

Quantum meruit is the determination of a reasonable value of the work performed or servicesrendered. This is a typical claim where there is no formal contract  or valid agreementbetween the parties. This Latin word ‘kwahn-tuhm mare-ooh-it’ means “as much as he deserved.”

 Section 71 of the Contract Act 1950 allows a claim essentially based on quantum meruit.

“Where a person lawfully does anything for another person, or delivers anything to him, not intending to do so gratuitously, and such other person enjoys the benefit thereof, the latter is bound to make compensation to the former in respect of, or to restore, the thing so done or delivered.”

In Siow Wong Fatt v Susur Rotan Mining Ltd & Anor [1967] 2 MLJ 118, it was held by the Privy Council that 4 conditions must be satisfied to establish a claim under Section 71 of the Contract Act 1950, which are:

1. i) The act must be lawful;
2. ii) The act must be done for another person;
3. iii) The act must not be intended to be done gratuitously; and
4. iv) The act must be such that the other person enjoys the benefit of the act.

Technically speaking, if you have provided lawful services to another party and the party has willingly accepted the services knowing that those services are not free and the person has enjoyed the benefit of those services, the conditions for a quantum meruit claim would be satisfied.

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CONCLUSION

The monetary remedies discussed above are merely the tip of the iceberg. Apart from monetary remedies, the Malaysian courts also have the discretion to award equitable remedies such as specific performance, restitution, rescission etc. It is important to note that the party seeking any legal remedies from the court bears the legal burden to prove as “he who asserts must prove”, failing which he or she face the risk of being awarded only nominal damages or nothing at all.

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This article is intended to be informative and not intended to be nor should be relied upon as a substitute for legal or any other professional advice.

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About the Author

Jessica Wong Yi Sing

Associate

Harold & Lam Partnership

jessica@hlplawyers.com