Remedies

Contemptuous Damages (the court feel that the P does not have a good claim)
Contemptuous damages are awarded where the claim is technically successful but is without merit and
the claim should not have been brought. Commonly, the court will grant this damage when the court feels that
morally, plaintiff deserved what happened to him be it for libel, assault and false imprisonment, regardless of
whether the tort is actionable per se or not. The amount of damages is usually the smallest denomination of
money as the court does not in fact support the plaintiff’s claim The court has the discretion to instruct the
plaintiff to bear the cost of both parties where the judge will order the plaintiff to pay his own costs, and may
even order him to pay defendant’s costs as well. In Reynolds v Times Newspapers, the House of Lords
declined to recognize such a category of general qualified privilege for political information as such a privilege
would fail to provide adequate protection for reputation. The flexibility of the existing common law allows
courts to consider individual cases and give appropriate weight to competing factors including the importance
of freedom of expression by the media as a “watchdog” on matters of public interest. Nevertheless, where the
information is in the political domain, the court should be slow to conclude that publication is not in the public
interest.

Nominal Damages
Generally, nominal damages are granted for torts which are actionable per se. It will be awarded when
the plaintiff proves that the defendant has committed a tort, although the plaintiff himself does not suffered any
actual loss. Hence, it is a recognition of the plaintiff’s legal right. Nominal damages are also awarded in cases
where damages are shown but its amount is not sufficiently proved. The differences between contemptuous
damages and nominal damages is that in the latter, there is no moral connotation and both parties may be
ordered to bear their own costs.

In Guan Soon Tin Mining Co v Wong Fook Kum, the court held that if the liability of the defendant is
established without the plaintiff having suffered any damage, he will only receive nominal damages. Besides,
in Tay Tuan Kiat v Pritam Singh Bar, the defendant built a retaining wall on the plaintiff’s land. The plaintiff
sued the defendant for trespass to land. The court held that there was trespass to land, but the trespass did not
result in any injury to the plaintiff. Furthermore, if the wall had not been built the plaintiff would not have used
that particular section of his land. Nevertheless, in recognition of the fact that the plaintiff’s right had been
infringed, nominal damages of RM 500 was awarded.

Exemplary Damages
Exemplary damages or also known as punitive damages are damages which intended to punish the
defendant and seek to effect retribution. It used to convey the disapproval of the jury or court and deter the
defendant from repeating the outrageously wrongful conduct as well as preventing others from acting similarly.
Hence, it can be said that the main purpose of awarding exemplary damages is to deter the defendant from
repeating his act in the future since it is not compensatory in nature.

In Rookes v Barnard, the plaintiff was an employee of BOAC and member of its trade union. The
plaintiff was not satisfied with the trade union and wanted to terminate his membership. The defendants who
were the union officials met the employer and threatened to go on strike unless BOAC forced the plaintiff to
resign. The plaintiff’s employment was subsequently terminated, and he claimed against several of the trade
union members. The court held that exemplary damages could not be awarded in this case as unconstitutional
acts of defendant cannot be proven. The court then laid down several situations where exemplary damages
could be awarded. First, the case of oppressive, arbitrary or unconstitutional acts by government servants. Then
the case where the defendant’s conduct had been calculated by him to make a profit for himself which might
well exceed the compensation payable to the plaintiff. Lastly, the case where expressly authorized in statute.

In Khaw Cheng Poon & Ors v Khaw Cheng Bok & Ors and Anor, the court stated that exemplary damages
only awarded in very special circumstances. No new categories admissible to the Devlin list has now been
settled in the decision of Cassell & Co Ltd v Broome.

In Cassell & Co Ltd v Broome, the defendant, who is a publisher and writer of a book, wrote that the plaintiff
who was retired but once a well-known naval officer, committed a wrong which led to a wartime disaster The
court found that the defendant realized that the profits which he would obtain from the sale of the book would
more than compensate for the amount of damages that he would have to pay to the plaintiff. The defendant was
ordered to pay 15,000 pound for general damages and 25,000 pound for exemplary damages

While in Sin Heap Lee Marubeni v Yip Shou Shan, the court found that the continued acts of trespass were
calculated to result in some profits to the descendants and exemplary damages of RM 900,000 which is 25% of
the sum of compensatory damages) were awarded over and above compensatory damages. (Private nuisance as
they are neighbor)

In Alfred Templeton & Ors v Low Yat Holdings Sdn Bhd & Anor, plaintiff and defendant were neighbors.
The plaintiff claimed for trespass and nuisance as the construction work which was being carried out on the
defendant’s land obstructed the way out from the plaintiff’s land. There was also earth and debris in the plaitiff
compound. The court allowed the plaintiff claim for trespass of nuisance with aggravated and exemplary
damages as the defendant’s act fell under the second category enunciated in Rookes v Barnard.

In Chin Choon v Chua Jui Meng, exemplary damages are not limited to cases of monetary profits.

In AB v South West Water Services Ltd, the court denied the claim of exemplary damages as it had never
been awarded for public nuisance cases. There are three additional factors that must be considered by the court.
First, plaintiff cannot recover such damages unless he himself is a victim of such “punishable behaviour” . Such
damages must be used with restraint as it is against liberty and a form of punishment without the safeguard of
the criminal law, the size of awards must be moderate but reflect the gravity of the wrongdoing that is sufficient
to punish the wrongdoer. The financial means and conduct of the parties (including apology) are relevant in
assessing an award of exemplary damages

In Ronald Beadle v Hamzah HM Saman, the court awarded RM 2million in general damages and RM 1
million in exemplary damages as the plaintiff passport was wrongly detained for 16 years due to arbitrary
exercise of the department. RM 1 million was to show the abhorrence of the court of the gross abuse of power
under the ISA 1960.

In Kerajaan Negeri Selangor v Sagong bin Tasi, the COA stated that the highway authority is not liable to
pay aggravated or exemplary damages as the highhanded tactics were employed to dispossess the plaintiffs and
the circumstances justified the award of exemplary damages.

In Thompson v Metropolitan Police Commissioner, the case concerned two conjoined actions by claimants
who had been manhandled, assaulted, and abused by police officers employed by the defendant. Both brought
claims for a combination of assault, personal injury, malicious persecution, and wrongful imprisonment. At first
instance, both were awarded aggravated damages. The defendant appealed against the award of aggravated
damages in each case, arguing that the judge had improperly directed the jury on the issue of aggravated
damages and that the awards were excessive. The issue concerned the appropriate directions which should be
given to the jury in a claim for compensatory and aggravated damages. The court emphasized the need to give
the jury stronger guidance in determining the quantum of damages in claims for false imprisonment or
malicious persecution, on account of the need for consistency. In this regard, a separate award should be made
for each category of damages in order to ensure transparency. With respect of compensatory damages, the judge
should indicate to the jury appropriate upper and lower limits. Where an award of exemplary damages was
appropriate, the judge should direct that this should not be punitive although it may contain a penal element. He
should propose a starting figure and direct that the award should generally be less than twice the basic award.In
this case, the lack of such direction had led the jury to award excessive damages. The court therefore substituted
the awards for lower sums.

Aggravated damages
Aggravated damages are compensatory in nature. It will be awarded when the plaintiff has suffered
injury or loss other than pecuniary loss, such as smear on his reputation, feeling of shame, mental pain or so
forth. In other word, aggravated damage will be awarded when the plaintiff suffers non-pecuniary loss. It may
also be awarded for malicious falsehood and defamation. Besides, it must be noted that aggravated damages do
not intend to punish the defendant, but is serves to compensate the plaintiff for the mental distress he has
suffered arising from the tort.

In Roshairee Abdul Wahab v Mejar Mustafa Omar & Ors, the plaintiff was awarded 250 pounds for
aggravated damages as the act of the defendant who parked his trailer in front of the plaintiff’s coffee shop
caused the plaintiff’s business to be adversely affected. In Chin Choon v Chua Jin Meng, aggravated
damages are granted as the defendant was arrogant in his defamatory words regarding the plaintiff. While in
Abd Malaek Hussiin v Borhan Hj Daud & Ors case, the plaintiff claimed that he was arrested without a
warrant of arrest by a group of Special Branch officers and suffered physical as well as mental torture
overnight. The court found that it was unlawful arrest. The aggravating factors including denied the visit of
family and breach of fundamental rights, assaults and others. Therefore, an award of RM 1 million aggravated
damages and Rm 1 million of exemplary damages were awarded.

Injunction
An injunction is an additional remedy to general damages where damages alone are not an appropriate
or sufficient remedy. It is an order made by the court to one or more of the parties to stop or refrain a person
acts ultra vires. The plaintiff cannot claim for an injunction as his right, but it is at the discretion of the court. It
is usually not granted where the monetary compensation is adequate, the plaintiff only suffers a slight damage,
the injury to the plaintiff is temporary, the plaintiff himself consents or allow his right to be encroached upon,
and the circumstances provided for under Section 54 of the Specific Relief Act 1950. For instances, in the case
of the torts of nuisance and repeated or continuing trespass to land, and in special circumstances to prevent the
publication of a defamatory matter.

There are two types of injunction, namely prohibitory injunction and mandatory injection. Prohibitory
injunction requires the defendant to cease his activities and is normally in cases of nuisance and repeated
trespass. While for mandatory injunction, it requires the defendant to do a positive act. For instances,
demolish a wall which is a source of trespass.
Grant of injunction at different times
Injunction may be granted at any of the three different times. Firstly, Quia timet injunction. It is
granted before the tort occurs on the condition that the plaintiff can prove that he will suffer substantial damage
if the tort in fact occurs. Next, Perpetual injunction which usually, but not necessarily, granted at the end of
trial after the hearing of an action. Then interlocutory injunction. It is granted after or during the commission
of the act alleged to be a tort and is issued as a temporary measure before the case is brought to court. There
must be a serious issue to be tried and the balance of convenience and the justice of the case must be in the
plaintiff’s favour. The plaintiff must agree to pay damages if, after the trial, the injunction is retracted.

In American Cyanamid Co v Ethicon Ltd, the appellant was a company that held a patent for artificial
absorbable surgical sutures. The respondent was a company that intended to launch a suture to the British
market which the appellant claimed was in breach of its patent. At first instance, the appellant was granted an
injunction preventing the respondent’s use of the type of suture at issue until the trial of the patent infringement.
On appeal, the Court of Appeal discharged the injunction on the basis that the case for patent infringement was
not made out. The appellant appealed to the House of Lords. The issue arises here as to whether it is necessary
for the grant of an interim injunction. It was held that (a) it was not the courts’ role to consider conflicting
evidence in respect of an interim application. This was a matter for trial. (b) All that was necessary at this stage
was that the claimant should show that there was a real issue to be tried. (c) The court should consider whether
damages were an adequate remedy for a claimant if an injunction was not granted. If so, an injunction would
not be available. (d) If damages were not an adequate remedy, the court should then ask whether the claimant
would be able to give an undertaking in damages to the defendant. (e) If it was considered that there was any
difficulty regarding the availability of damages on either side, the court should consider the balance of
convenience between the parties. (f) If these factors were evenly balanced, the court should consider
maintaining the status quo. On the facts of this case, the balance of convenience lay with the appellant and the
appeal was allowed.

Specific Restitution of property

The remedy of specific restitution of property would arise in the torts of conversion or detinue, or
trespass to land by virtue of S 9 and 7 of Specific Relief Act, 1950. The court will not normally order a specific
restitution of property if damages would be an adequate remedy as stated in Whiteley v Hilt

Extinction of liability
In the extinction of a liability, the circumstances are such that the liability exists but its remedy does not.
The meaning of discharge of tort or liability is reaching an end of the tort. It is a process by which tort stops to
exist and the wrongdoer is no longer liable. There are several factors which will extinguish the liability of the
defendant.

(i) Waiver
Firstly, waiver. A waiver in the context of the law of torts means the plaintiff “releasing his right to
claim for damages from the defendant. The plaintiff chooses the way to institute an action for restitution, where
he is in essence demanding the defendant to pay him for the price of the goods and profit received from the
result of disposing of his property instead of claiming for damages. In the case of United Australia Ltd v
Barclays Bank Ltd, Lord Atkiin stated that if a person had two inconsistent rights it is lifting when with full
knowledge he has done an unequivocal act showing that he has chosen the one he cannot afterwards pursue the
other, which after the first choice is by reason of the inconsistency no longer his to choose. Choosing one of two
inconsistent rights constitutes a waiver but choosing one of two alternative remedies is not.

(ii) Accord and satisfaction

Next, accord and satisfaction. Liability may also be extinguished through an agreement made between
the parties. For examples, if A negligently hit B while B was crossing the road. Both parties may have an
agreement (accord) whereby B consent not to sue A If A agrees to pay B RM 200 on the spot, or within a
period.

(iii) Release
Thirdly, release. There is a difference between release and accord, whereby release is the declaration by
the plaintiff is embodied in a deed and does not require valuable consideration as with accord and satisfaction. It
refers to the plaintiff’s agreement to either not institute proceedings against the defendant, or where proceedings
have commenced to discharge the defendant against any tortious liability. A release may therefore be given
either before or after the commencement of the action.

(iv) Judgment
Next, judgement. there are two effects of Final judgement by a court. First, it terminates the original
cause of action, which means that the plaintiff cannot bring a new action against the defendant, either for the
same tort or for restitution. Secondly, no other claims may be made by either party against one another as to the
correctness of the decision of the court.

(v) Limitation
Fifthly, limitation. An action for tort must be brought to the court before the expiration of six years from
the date on which the cause of action accrues. The defendant may plead limitation as a defence if the date
expired. The limitation can be extended if the plaintiff is under disability or postponed in cases of fraud or
mistake, where time only begins to run when the fraud or mistake is discovered or could with reasonable
diligence, be discovered. ss 7(1) and 7(2) of Civil Law Act 1956 provides that the executor of a deceased
person’s estate may bring an action for damages for the benefits of the deceased's spouse, parent or child within
three years after the death of the person deceased.

(vi) Death of a party

Lastly, death of a party. All causes of action subsisting against or vested in the deceased shall survive
against, or for the benefit of his estate on the death of any person. However, except of the defamation, all the
proceedings against the estate of the deceased person are maintainable only if they were pending at the date of
his death or the proceedings are taken not later than 6 months after his personal representative has taken out
representation. Exemplary damages, any damages for bereavement, damages for loss of expectation of life and
any damages for loss of earnings for any period after that person’s death shall not be included in the recoverable
damages. Funeral expenses may be included in the award of damages