1.

0 INTRODUCTION

Remedies define as a cure1 and as a redress for a wrong. Different remedies are
available to give right to different wrongs suffered by a plaintiff, which these remedies may
be used alone or together with other remedies.2 Remedies functions to redress a wrong
inflicted to plaintiff by granting the compensation, specific relief to compel performance and
to prevent wrongful acts and restitution.

2.0 JUDICIAL REMEDIES

There are two classifications of remedies which have been classified under two main
heads, namely judicial remedies and extra-judicial remedies. The principal of judicial
remedies are those for which the injured party must go to a court of justice in the forms to
apply the damages or the injunction or specific restitution of property.3 Whereas the extra-
judicial remedies is where the parties may take action in the presence of the tort i.e where
those available without the parties coming to the court4 which would otherwise be unlawful,
but it is limited in the circumstances of false imprisonment, assault, to expel any trespasser5
and abatement of the nuisance.

2.1 DAMAGES

Damages are one of the legal remedy. It defines as something that you had been
suffered and the court will grants you an award for these damages. In order to claim for
damages, plaintiff must prove that a tort has occurred and suffered damage. 6 Usually, the
claimant is seeking compensation for personal injuries or damage to property, which arise out
of accidents. 7

1
The Concise Oxford English Dictionary, 2002. Oxford: Oxford University Press.10th Ed.

2
Cheong May Fong. 2007. Civil Remedies in Malaysia. Malaysia: Sweet & Maxwell Asia. p.1.

3
R.L Anand & L.S.Sastri`s. 1990. Law of Torts. India: The Law Book Company (P). 5th Ed. p.373.

4
Cheong May Fong. 2007. Civil Remedies in Malaysia. p.2.
5
RR Sethu. 1993. “DEMISE OF SELF-HELP AS A REMEDY”. Vol 11 MLJA 25. LexisNexis Asia : The
Malayan Law Journal Articles. p. 3.

6
Norchaya Talib. 2010. Law of Torts in Malaysia. Selangor: Sweet & Maxwell Asia. 3rd Ed. p. 443.

7
Vivienne Harpwood. 2002. Principles of Tort Law. London &Sydney: Ravendish Publishing Limited. 4th Ed. p.
409.

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Plaintiff needs to prove loss and damage for recover the damages. He does not have to
consider the amount of his loss but it is sufficient to prove it’s existence. However, it has a
limitation for the damages to be award, such as pure economic loss in negligence. In the case
of Junior books Ltd v Veitchi & Co Ltd8, courts held that the pure economic loss is not
recover. Besides, in the cases of negligence, pure economic loss cannot be recovered as
happened in the case of D & F Estates Ltd v Church Commissioners9, where it was held that
damage which is deemed to be pure economic loss is damage at the earliest view of damage
property. Furthermore, the exception is the pure economic loss that cause from negligent
misstatement and negligence specialized advice.10

Thus, it can be concluded that the economic loss can also be recoverable. The example cases
of damage for economic loss is misrepresentation, breach of contract, slander of goods and
title, breach of copyright, conversion and others.11

There are different types of damages that can be awarded in tort and it is applies as follows;

2.1.1 General and special damages.

General damages are considered as the consequence of a tort. Normally the amounts of
damages are not fixed, which mean there is possibility to change. The award for general
damages such as damages for pain, suffering, tort of liable and slander.

In the case of Ong Ah Long v Dr S Underwood, the court held that general damages are
simply compensation that will give the injured party reparation for the wrongful act and for all
the natural and direct consequences of the wrongful act so far as money can compensate.12

Meanwhile, special damages is not arise from the consequences of a tort. In claiming for
special damages, plaintiff must give full details and notice in his pleadings. Plaintiff also
needs to prove for damages like in the circumstances tort of negligence, nuisance, and slander.
The amount of damages is fixed or in another word is liquidated, which means that amount

8
[1983] 1 AC 520

9
[1989] AC 177

10
n.a. n.d. Inns of Court School of Law. 2005. Remedies. New York: Oxford Universities. p. 35.

11
ibid.

12
(1983) 2 MLJ 324

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already calculated. In the case of Rylands v Fletcher it was stated that special damages are
calculated from the date the tort occurred until the time the case is brought to court. 13 They
consist of liquidated damages or an amount which may be compute or determined financially.

2.1.2 Contemptuous damages

Contemptuous damages are considered when court fells to award the damages towards
plaintiff when plaintiff do not have a good claim. It is normally happen when courts do not
support the plaintiff claims and the amount of awards will usually be the smallest. It is also
based on morally of the courts to award the damages when they consider that plaintiff
deserved the damages in liable, assault, trespass and false imprisonment.14

2.1.3 Nominal damages

Nominal damages were granted when plaintiff do not suffered any loss or damages but
he can proves that defendant had committed tortious offences. It also happen when the
amount is not sufficient to prove but the damages had shown. Nominal damages are only
applied in tort of actionable per se, which is does not need to prove any damages.

The court in the case of Guan Soon Tin Mining Co v Wong Fook Kum stated that when
plaintiff having suffered any damage, liability of the defendant is established then plaintiff
only receive the nominal damages.15

The court will award nominal damages when the plaintiff has suffered no loss. However, the
awards need to be reasonable. The reason is for the court, so that can order the defendant pay
the plaintiff’s court costs. In this case, usually claimant would get a very small amount of
money and to prove that he had won the case.

2.1.4 Exemplary damages

Exemplary damages also known as punitive damages. It can be considered as damages

that the court will awards when there is unreasonable behaviour in the part of the defendant.
An award of exemplary damages would be recovered on the part of plaintiff. 16

13
(1868) LR 3 HL 330

14
Norchaya Talib. 2010. Law of Torts in Malaysia. p. 443

15
(1969) 1 MLJ 100 at 103

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This damage may be differentiating from aggravated damages. In this damage, the intention
of the courts is to give a lesson and punish the wrongdoer. Besides, it can deter others that
who might be do the same thing. The award will be double in the kind of the award
compensatory damage. In the case of Rookes v Barnard 1964 it was stated that damages of
this type have a limitation. It will only be awarded in specific cases and on exceptionally. 17

Therefore, three classes of cases were considered. First, where there have been servants of the
government behave in an oppressive, arbitrary or unconstitutional way. Police misconduct and
racial discrimination fall into this category.

The second category is where the conduct of the defendant was calculated to make a profit in
the matters of compensation payable would be exceed. It not strictly in financial profit but
also includes other benefits.

The third category is where the payment of exemplary damages had expressly permitted by
statutes, such as in s 17(3) of the Copyright Act 1956.

These three categories are strict and the only category that allow for expansion in the future is
second category. It is rarely awarded with the exemplary damages. It is may because to award
such damages would be take the function of the criminal law and to stray from the boundaries
of tort itself.

In the case of involving misconduct by police officer, the high award of exemplary damages
is possible to find such as in the case of George v The Metropolitan Commissioner of Police
The fact of the case is the claimant was the mother of a young woman. The police needed to
question the young women. Some officers forced their way into her house and searched it for
a long period. Furthermore, they kicked claimant and make a false statement to deceive the
court. She was awarded for trespass, assault and for exemplary damages, which is 6000 dollar
for trespass and assault and 2000 dollar for exemplary damages.18

16
Abdul Majid bin Nabi Baksh & Krishnan Arjunan. 2007. “EXEMPLARY DAMAGES FOR TORT AND
BREACH OF CONTRACT IN SELECTED COMMON LAW JURISDICTIONS”. Vol 3. LexisNexis Asia : The
Malayan Law Journal Articles. see also; Cheong May Fong. 2007. Civil Remedies in Malaysia. p. 142.

17
(1964) AC 1129

18
Vivienne Harpwood. 2002. Principles of Tort Law. p. 414-415.

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 2.1.5 Aggravated damages

If the court wishes to express disapproval of the defendant’s behavior, the aggravated
damages can be awarded. The consequence is the claimant has suffered more than reasonably
be expected in the situation.19 It can be awarded in the case of malicious falsehood.

2.2 INJUNCTION

Injunction is an order by the court enjoining a person to do or continues to do an act or

restraining the commission of some wrongful omission.20 The injunction is an additional
remedy where it may be obtain if the damages alone is not sufficient remedy and normally
apply or been use in torts of nuisance. There are several classification of injunctions which are
perpetual and interlocutory injunction, Mandatory and prohibitive injunction and Quia timet
injunction.21

There are injunctions which granted either before trial or the end of the trial. Perpetual or
permanent injunctions granted by the court after the termination of the trial when the rights of
the parties have been determined provide under section 51(2) Specific Relief Act. These
injunctions are final in nature. There are also cases where injustice may be caused to the
plaintiff if he has to await the trial of the case. Hence, by the virtue of section 51(1) states that
the court has authority to grant the plaintiff with interlocutory injunction also known as
temporary injunction continue until a specific time or hearing of the case further order as was
held in the case of Nicholas & Ors v Gan Realty Sdn Bhd.22However, an application for
interlocutory injunction must first have the cause of action.23

In the point of view of substance, the injunction may be classified into mandatory and
prohibitive injunctions. A prohibitive injunction granted by the court which the defendant is
forbidden to commit or continue the commission a tort, while a mandatory injunction is where
the defendant is ordered to undo the mischief act that he had done. The next classification of
injunction is Quia timet injunction where an injunction is granted to prevent a threatened.

19
ibid.

20
R.L Anand & L.S.Sastri`s. 1990. Law of Torts. p.387.

21
ibid. p.388; Cheong May Fong. 2007. Civil Remedies in Malaysia. Malaysia: Sweet & Maxwell Asia. p. 221

22
[1970] 2 MLJ 89

23
Sarkawi bin Sadijo v BMG Music(M) Sdn Bhd,[1996] 4 MLJ 515

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Injunction may be sought or granted in respect of the trespass, nuisance, infringement of
copyright, or any publication of a defamatory matter. Almost certainly an injunction is
applicable for every tort except assault and battery, false imprisonment and malicious
prosecution.

2.3 SPECIFIC RESTITUTION OF PROPERTY

Specific restitution of property is falls under equitable remedies24 under judicial

remedies. Specific restitution of property will be granted in the situations which money would
be an insufficient relief in order to be just

The remedy of specific restitution of property is to recover the plaintiff’s property before his
right’s was violated. It normally involves of conversion which is an act of a person who use
the benefit of the property of the real owner and deprive the owner’s rights from enjoying the
property without the owner’s consent25 or trespass to land. It is under the court’s power to
order for specific restitution of property. The court will order the wrongdoer to return the
property to the owner of the property if his property has been taken away by the wrongdoer
wrongly.26 Section 7 (1) of Specific Relief Act 1950 (Act 137) provides that a person entitled
to the possession of property and may recover it.27 However, if the damages would be
sufficient and adequate remedy, the court will not order for specific restitution of property.

In the case of trespass to land in Martin v Porter, stated that if the defendant knew he had
trespassed onto the plaintiff’s land and mined for coal, he is required to count and pay for the
full price of the coal once sold as he is a trespasser.28 However, in the case of Livingstone v
Raywards Coal Co, the court stated that the defendant is innocently mined the coal on the
plaintiff’s land, the plaintiff’s only may recover the value of the coal under the ground instead
of the total value once the coal had been mined.29

24
http://en.wikipedia.org/wiki/Restitution
25
Norchaya Talib. 2010. Law of Torts in Malaysia. p. 467.

26
http://www.boddunan.com/education/21-law-a-legal/1696-remedies-and-damages.html

27
Specific Relief Act 1950 (Act 137). s. 7(1)

28
(1839) 5 M & W 351, 151 ER 149

29
(1880) LR 5 App Cas 25 (HL), see also; Robert Stevens. 2007. Torts and Rights. United States:Oxford
University Press Inc p.82.

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According to Section 7 (2) of Specific Relief Act 1950 (Act 137), the person who entitled to
the possession of the property should not enforce his right to recover it when the property has
been let under tenancy and the occupier still occupy the property even though the period of
the tenancy has been expired.30

In the case of Ministry of Defence v Ashman31, the officers in the armed services got a house
with lowest rent which is below of market value by The Ministry of Defence. The defendant’s
husband was a tenant and already died. The ministry claimed for mesne profits which is a
claim for profits that made by the defendant from the property as the defendant does not have
legal ownership32 on the house and the defendant refused to leave the house. Thus, the claim
represents the market value of the use of the property.33 Hoffman LJ said, a person entitled to
the land may claim for the remedy of specific restitution of property against the occupier who
occupies the property without his consent on two grounds. Firstly, for the loss suffered due to
the defendant’s trespass and secondly is the value of the benefit that had been received by the
occupier.34

3.0 EXTINCTION OF LIABILITY

When there is a possible liability for a tortious action, it may be extinguished in any
following ways e.g by death, limitation, waiver, accord and satisfaction, judgment and
voluntary termination. Some of these by act of the parties, others by the operation of law.

The first way is by the death of the party. The general of common law states that the death of
one of the parties extinguished any existing cause of action in tort by one against another i.e
the deceased party will bring together the cause of action and all the liabilities of that person.
However, under section 8(1) of Law Reforms Act 1934 provides that the death of the plaintiff
or the defendant extinguishes his liability in the case of defamation only while the other cause

30
Specific Relief Act 1950 (Act 137). s. 7(2)

31
[1993] 32 EGLR 102 (CA)

32
http://legal-dictionary.thefreedictionary.com/Mesne+profits

33
Robert Stevens. 2007. Torts and Rights. p.81.

34
Wan Azlan Ahmad & Mohsin Hingun. 1998. Principles of the Law of Tort in Malaysia. Kuala Lumpur:
Malayan Law Journal Sdn Bhd. p. 239.

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of action for the benefit of and against the estate of the deaceased will remain survive to the
legal representatives of the deceased.35

The next extinction of liability is by the operation of law which is the limitation. The principle
of limitation is that by the lapse of time, then the right to commence any action becomes no
longer enforceable36 i.e he will loss his remedy if he fall asleep before or upon it on the basis
that law will not help inactive persons .37

Any action founded on tort shall be brought before the court within the limitation period
prescribed by law. Section 6(1)(a) of the Limitation Act 1953 provides that the general
limitation period for the party to commence his action in tort is six years. 38 However, in the
situation where the party being sued is the government of Malaysia, the abovementioned
period is not applies. It is limit to the period of three years fixed under section 2(a) of the
Public Authorities Protection Act 1948.

The question on where the limitation period is calculated in obtaining a remedy in tort differs
based on the requirement to prove the tortious action itself. If the tort is actionable per se, the
time runs from the date of defendant`s act39, if the tort only on proof of damage, its runs from
the moment the victim of particular tort suffer damage as a result of tort being committed or
inflicted upon him40 whereas in the continuing nature such as nuisance, its calculated each
time the tort inflicted.41

Waiver is the other form that may extinguish the tortious liability.42 A man may have more
than one remedy under law which is open to him in respect of the wrong action to him.
However, the law allows his as an election to pursue one of them with the condition that, once

35
C. David Baker. 1996. Tort. 6th Ed. London: Sweet & Maxwell. p.452, see also: Wan Azlan Ahmad & Mohsin
Hingun. 1998. Principles of the Law of Tort in Malaysia. p. 242

36
C. David Baker. p. 325.

37
W.V.H Rogers. 1981. Winfield & Jolowicz of Tort. 3rd Ed. London: Sweet & Maxwell. p. 647.

38
Robert Stevens. 2007. Torts and Rights. p. 241.
39
Nitrigan Eireann Teoranta v Inco Alloys [1992] 1 ER 854

40
Nicholas R. Mcbride & Roderick Bagshaw. 2005. Tort Law. London: Pearson Education . Limited.2nd Ed. p. 9.

41
John Looke. 2005. Law of Tort. 7th Ed. London: Pearson Education Ltd Bhd. p. 443.
42
United Australia v Barclays Bank Ltd [1941] AC 1

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he selects one remedy and leaves the others, he must stand or fall by his election. It means
that he is said; the election of one of the possible remedies waived the other remedies.43 He is
no longer permitted to pursue these remedies which he had given up before.

This waiver only waived the right to recover remedies for tort and not the whole of tort. Mere
commencement of an action will not amount to waiver other remedies.44 Not every tort can
simply be waived such in the case of default or defamation.

The cause of extinction of liability on the waiver basis can only applies in conversion,
trespass to landor good, deceit, some instances of action upon the case and the action for
extorting money by unlawful threats.

In some situation, any man who has a cause of action against another person may agree with
him to accept in substitution for his legal remedy any consideration. If the plantiff and the
defendant agree to settle the liability by valuable consideration,the tort is discharged. The
agreement is called an accord while the consideration is called satisfaction. Accord and
satisfaction is the other way that extinguishes liability.

The original right of action is extinguished only when the satisfaction(consideration) that has
been agreed upon has been accepted and performed by the other party. If any party breach the
agreement or does not fulfill the term of agreement, the party can claim for damages or sue
him upon it. However, in the situation where it can be shown that the original cause of action
is said to be discharged by the defendant`s promise not by its performance, the cause of action
will extinguished from the date the promise was made.45

In the fifth situations, the liability will be extinguished by the judgment of the court. If an
action is brought before the court seeking redress for the tort committed and the judgement is
given by the judge,the liability for that particular tort comes to an end. If the plantiff fails in
this proceeding, he cannot go in for another legal proceedings in the same court.

43
R.L Anand & L.S.Sastri`s. 1990. Law of Torts. p. 439.

44
ibid. p.440.

45
Clerk & Lindsell on Tort. 2003.. London: Sweet & Maxwell. 18th Ed. p. 1691.

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The last possible factors that discharged the liability is voluntary termination where the
plaintiff giving up or discharging of the right to take an action against another person. In the
case of Ford v Beech46stated that an absolute covenant or agreement to abstain from suing is
equivalent to a release and accord which then can be a good defense to any action in tort.
However, in the other cases, Duck v Mayen47 it was held that the agreement not to sue one of
the joint tortfeasers will not function to discharged the rest.

The different between this category with the accord and satisfaction above in term of the
agreement to discharge the liability, under voluntary termination, there is no requirement of
consideration while in accord and satisfaction go otherwise. It must have a good consideration
before the party discharged his right.

This voluntary termination is effective whether it is given before or after the initiation of an
action made against the tortfeasor.48

4.0 CONCLUSION

As for conclusion, a remedy in tort is given in order to seek compensation and to allow a
plaintiff to seek a legal right. It can be classified into two principles, which are extra judicial
remedies and judicial remedies. Judicial remedies may be classified into several types, which
are damages, injunction and specific restitution of property. All these liabilities can be
extinguished by the act of parties or by the operation of law. These remedies are only applied
as a remedy for a certain tortious liability.

46
(1848) 11 QB 852

47
(1982) 2 QB 511

48
Wan Azlan Ahmad & Mohsin Hingun. 1998. Principles of the Law of Tort in Malaysia. p.443.

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BIBLIOGRAPHY

Books

Andrew Burrows. 1994. Remedies for Torts and Breach of Contract. London: Sweet &
Maxwell

Cheong May Fong. 2007. Civil Remedies in Malaysia. Malaysia: Sweet & Maxwell Asia.

Baker, C. 1996. Tort. London: Sweet & Maxwel. 3rd Ed.

C. David Baker. 1996. Tort. London: Sweet & Maxwell6th Ed.

n.a. 2003. Clerk & Lindsell on Tort. London: Sweet & Maxwell. 18th Ed.

n.a. n.d. Inns of Court School of Law. 2005. Remedies. New York: Oxford Universities.

John Looke. 2005. Law of Tort. London: Pearson Education Ltd Bhd. 7th Ed.

Nicholas R. Mcbride & Roderick Bagshaw. 2005. Tort Law. London: Pearson Education Ltd.
2nd Ed.

Norchaya Talib. 2010. Law of Torts in Malaysia. Selangor: Sweet & Maxwell Asia. 3rd Ed.

Robert Stevens. 2007. Torts and Rights. United States:Oxford University Press Inc

R.L Anand & L.S.Sastri`s. 1990. Law of Torts. India: The Law Book Company (P) 5th Ed.

R.P Balkin & J L R Davis. 1991. Law of Torts. n.pl; n.pb

Vivienne Harpwood. 2002. Principles of Tort Law. London &Sydney: Ravendish Publishing Limited
4th Ed.

W.V.H Rogers. 1981. Winfield & Jolowicz of Tort. London: Sweet & Maxwell. 3rd Ed

Wan Azlan Ahmad & Mohsin Hingun. 1998. Principles of the Law of Tort in Malaysia. Kuala
Lumpur: Malayan Law Journal Sdn Bhd.

[11]
Acts

Copyright Act 1956

Law Reforms Act 1934

Malaysia. 1953. Limitation Act 1953

Malaysia. 1948. Public Authorities Protection Act 1948.

Specific Relief Act 1950

Publication

The Concise Oxford English Dictionary, 2002. Oxford: Oxford University Press.10th Ed

Articles

Abdul Majid bin Nabi Baksh & Krishnan Arjunan. 2007. “EXEMPLARY DAMAGES FOR
TORT AND BREACH OF CONTRACT IN SELECTED COMMON LAW JURISDICTIONS”.
Vol 3. LexisNexis Asia : The Malayan Law Journal Articles

RR Sethu. 1993. “DEMISE OF SELF-HELP AS A REMEDY”. Vol 11 MLJA 25.

LexisNexis Asia : The Malayan Law Journal Articles

Online

http://en.wikipedia.org/wiki/Restitution
http://legal-dictionary.thefreedictionary.com/remedy
http://legal-dictionary.thefreedictionary.com/conversion
http://www.boddunan.com/education/21-law-a-legal/1696-remedies-and-damages.html

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