CHAPTER 1:

INTRODUCTION
(REMEDIES)
PART
II
SEMESTER I 2012/2013
Faculty of Law & International
Relations

REMEDIES
Damages
The rule: Damages
recoverable once only
Kinds of damages
Measure of damages
Other remedies

A. DAMAGES
I. The general rule: Damages
recoverable once only
Damages recoverable once
and for all
Cannot bring a second action
upon the same facts on the
reason that his injury proves
to be more serious than was
thought when the judgment
was given

CASE: FETTER V
BEALE [1701] 12 MOD
542

P been awarded damages for

assault and battery. Few
years later his injuries
become more serious and
he applied for additional
damages.
Held: He can only applied
damages for once for a
single tort.

CASE: HENDERSON V
HENDERSON [1843]3 HARE
100

Applied the doctrine of res judicata

(let the matter rest) requires that
there must be an end to litigation
upon the court having pronounced
its final decision on a particular
issue
Held: the parties must bring their
whole case before the court so that
all aspects of the case may be
considered before a final decision is
made once and for all
The parties cannot return to court to

Exception 1: Where two

distinct rights are violated
E.g: personal injury & property
damage
Usually both actions must be
brought
at
the
initial
proceeding

lawyers
negligence
Rule
in
Henderson
v
Henderson applies unless if it
falls
under
special
circumstances as stated in the

CASE: TALBOT V BERKSHIRE

COUNTY COUNCIL [1994] QB
290
i. P was unaware of the
existence of the claim
ii. Where
there
is
an
agreement between the
parties that the action
would
be
set
aside
temporarily
iii. P had not brought the case
on the second issue in
reliance on a representation

CASE: WAIN V F
SHERWOOD AND SONS
TRANSPORT LTD [1999]
P in
159
Facts: P was PIQR
involved
a road accident
and claimed damages for his van but
failed to claim damages for his personal
injuries.
P mentioned about his injuries to the
counsel but the counsel failed to advise
that if the pleadings were not amended
to include claim for personal injuries, the
action might be barred in the future.
P brought the second action for personal
injury but was refused.
COA: Negligence of the counsel did not fall
in the special circumstances as stated

Exception 2:Continuing
injury
Continuing act giving rise to a
continuing
injuryseparate
action can be brought each
time the damage occurs
The claimant must await the
damage to happen first to bring
a fresh proceeding usually not
allowed to claim for prospective
damage
E.g:
nuisance,
trespass

CASE: DARLEY MAIN COLLIERY

V MITCHELL [1886] 11 APP C
Facts: Ds mined underneath Ps land
and it was subsequently caved in
and D paid damages accordingly. 14
years later, Ps land caved in again.
Held: P was entitled to damages in the
second cause of action but the
damages could only be recovered
for any damage up to the day of the
trial.
P cannot claim for any prospective
damage, however probable the
future damage may be.

II. Kinds of Damages

1-General damages
Damage or loss that the law
presumes a person incurs as a
consequence of a tort
Exact
amount
cannot
be
quantified
Examples:
pain and suffering
society prejudice as a result of libel or
slander
Loss of future earnings

Case: ONG AH LONG V DR

S UNDERWOOD [1983] 2
MLJ 324

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.

2- Special Damages
Damage or loss which the law
does not presume to arise from
the tort
P must specifically plead for
special damages- details &
particulars
Specifically plead & proved
Calculated from the date the
tort occurred until the time the
case is brought to court-

3- Contemptuous
damages
Awarded to P when the court
fells that P does not have a
good claim
The amount is small
If the court feels that morally P
deserved what happened to
him, then the court will award
CD
E.g.: the party who loss
the case pays for the cost

4- Nominal Damages
Where D had committed a tort
but P does not suffer any actual
loss
Purpose: recognition that there
has been a violation of his right
It can be awarded when there is
no actual loss or the damage is
not sufficiently proven- Usually
in small amount of money but
not necessarily so

5- Exemplary damages
Purpose: To deter D from
repeating the act in the future
Not compensatory in nature
Objective: to punish D
Could be awarded in case of
deliberate tort
False
imprisonment,
wrongful
asset, wrongful dismissal -by the
government

CASE: ROOKES V BARNARD

[1964] AC 1129
Requirements to award exemplary
damages
(i) P has been a victim of oppressive,
arbitrary or unconstitutional acts of
servants of the government
(ii) Ds act has been calculated by him
to bring in profit which exceeds the
amount of compensation that he
has to pay to P
(iii)Statutes allow for the award of
exemplary damages

Other requirements to award

exemplary damages
(a)P is a victim of punishable
behaviour
(b)Exemplary damages can be used
for and against liberty and is a
form of punishment without the
safeguards of the criminal lawTherefore it must be used with
restraint and the award should be
moderate but at the same time
reflects
the
gravity
of
the
wrongdoing

Case: RONALD BEADLE

V HAMZAH HM SAMAN
[2007] 3 MLJ 109

A public officer working with

the Jabatan Hasil Dalam Negeri
had wrongfully detained Ps
passport for 16 years- P was
not able to return to England &
making a trip to see his sick
father.
Held: Awarded RM2m in general
damages & RM1m in exemplary
damages.

CASE: CASSELL & CO LTD V

BROOME [1972] AC 1027
D, a publisher and a writer of a
book, wrote that P, who was a
retired but once well-known naval
officer, committed a wrong which
lead to a wartime disaster.
The court found out that D realized
the profits that he would obtain
from the sale of the book would be
more that compensate for the
amount
of damages that he
would have to pay to P.
Held: D was ordered to pay general

6-Aggravated damages
Compensatory in nature
Awarded when P has suffered injury or
loss other than pecuniary loss
E.g.: smear to reputation, shame, pain etc
The court takes into consideration Ds act
and motive when the tort is committed.
May be awarded in addition to
general damages
The amount may be higher but it
is not exemplary in nature
Purpose: to compensate P for the
mental distress he has suffered
from the tort

CASE: ROSHAIREE ABDUL

WAHAB V MEJAR MUSTAFA
OMAR & ORS [1976] 1 CLJ 39
P was ragged by the seniors
and suffered humiliation, loss of
pride and self-esteem.
Held:
the
court
awarded
aggravated damages, taking
into
consideration
all
circumstances of the case
including the character of P.

Case: ABD MALEK HUSSIN

B BORHAN HJ DAUD & ORS
[2008] 1 MLJ 386

P was arrested without warrant,

claimed to be under the ISA. He
was physically and mentally
tortured
overnight
where
medical
treatment
was
available 3 days later.
He was denied of legal counsel,
allowed to see his family only
2x in 57 days of detention.
Interrogation not on security

Judgment
Awarded RM500K general
damages
RM1M aggravated damages
aggravating factors: Breach
of
Ps
constitutional
&
fundamental rights, repeated
assaults, interrogation not on
security matters
RM1M- exemplary damages

CASE: BISNEY V
SWANSTON [1972] 225
ESTATES GAZETTE 2299

P and D had a disagreement

which later led to D who was a
trailer driver to park his car in
front of Ps coffee-shop in such
a way that Ps business was
adversely affected.
Held:
the
court
awarded
aggravated damages, over and
above a separate sum for
general damages.

III. Measure of Damages

Restitutio in integrum
General rule: damages are to
be assessed on a compensatory
basis, which is to restore P to
his position prior to the
commission of the tort

CASE: LIVINGSTONE V
RAWYARDS COAL CO
[1880] 5 APP CAS 25

Held:
Restitutio
in
integrum is that sum of
money which will put the
party who has been
injured
or
who
has
suffered injury in the
same position as he
would have been in if he

Limitations to the principle of

restitutio in intergrum
(i) Mitigation of damage
P has duty to minimize his loss
P might not get full damages if he
fails to take reasonable steps to
mitigate the loss
reasonable steps depend on
facts and circumstances of each
case

(ii) Final damage caused by

Ps impecuniosity
If the Ps final damage is
caused by Ps lack of money
(unable to mitigate the loss), P
may not get the damages for
the injury/damage suffered
Criticism:
Contradict with the principle of
eggshell skull rule
Does not accord with the principle
of restitutio in integrum

CASE: DODD PROPERTIES (KENT)

LTD V CANTERBURY CITY COUNCIL
[1980] 1 ALL ER 928

P owned and operated a garage

and car sales business. D
erected a multi-storey car park
next door to Ps building.
Because
of
pile-driving
operations for the foundation,
there was a serious structural
problems to Ps building. P had
not carried repair works at the
date of hearing because of

Judgment
If P cannot minimise his loss
due to his impecuniosity, D will
be held to be fully liable
Where the damage itself is a
product of Ps impecuniosity,
then it becomes too remote

Claims for damage to

property
Two measures
i) Diminution in value
) To compare the value of the
undamaged property with the
value of the same damaged
property
ii) Cost of reinstatement
- To take the cost of repair

OTHER REMEDIES

Self-help
Abatement of nuisance
Injunction
Specific restitution of
property

i. Self help
When a mishap happens to a
person,
he
must
act
accordingly to minimize the
loss/damage
E.g: request trespasser to leave
his land, find way to escape for
false imprisonment
Risk: may be too emotional and
use force more than it should

ii. Abatement of
nuisance
Remove the nuisance
Give prior notice before the act
of abatement is done
Use necessary action so that
further damage or unnecessary
damage is not cause by the act
of abatement
Statutory duty of the local
authority
under
Local
Government Act 1976

Case: BURTON V
WINTERS & ANOR
[1993]
3
ALL
ER
847
Ds predecessor built a garage

which P claimed to encroach onto

her land. She applied for mandatory
injunction but was refused. She then
built a wall in front of the garage.
An injunction was granted against P
but she persisted. She attempted to
built another wall which damaged
the garage. She was sentenced to 2
years imprisonment.
Appealed against the order.

Judgment
Issue: Whether P was entitled
to
exercise
the
right
of
abatement of nuisance
The right of abatement is
restricted to simple cases which
did not include urgent cases
which required an immediate
remedy.

iii. Injunction
(a)Prohibitory injunction
() Require D to cease activities
(b) Mandatory injunction
() Require D to do a positive act

iv. Specific restitution of

property
An order of the court to require
D to restore the property taken
from P
E.g: torts of conversion or
detinue, trespass to land
Specific restitution of property
is granted where damages is
not an adequate remedy

EXTINCTION OF
LIABILITY

Waiver
Accord and satisfaction
Release
Judgment
Limitation