LECTURE 3 : DAMAGES

Introduction
Objective : to look at terms and meaning of these terms.

(1) NON COMPENSATORY DAMAGES

(i) NOMINAL DAMAGES

 = damages which are awarded when a wrong has occurred, but no actual financial loss was
suffered.
 Objectives : to declare & uphold Pl’s rights

 Tay Tuan Kiat v Pritam Singh Brar (1987)- a Singaporean case.

 Held : “On the question of damages, there is no evidence that the plaintiffs have suffered any
damage or loss as a result of the trespass. Before the retaining wall was built by the defendant
there was steep slope and the plaintiffs had never had any effective enjoyment of the portion of
land on which now stands the wall. Miss Ivy Tay (PW6) testified that the plaintiffs had lost rental
from their property because of the lack of privacy to the tenants staying there.
 That surely is not because of the retaining wall but because of the fact that both the plaintiffs'
house and the defendant's house are too near to the common boundary. On this the 1st plaintiff
is partly to blame: in renovating his house in 1974 he extended it towards the common
boundary. I therefore award to the plaintiffs only nominal damages in a sum of $500.”

 K Mahunaran v Osmond Chiang [1996]1 LNS 554

(ii) CONTEMPTUOUS / DERISORY DAMAGES

 A monetary remedy in the smallest denomination/very small amount (usually the lowest coin)
to indicate that, technically, a tort has been committed but, in the opinion of the judge, the Pl
deserves only a technical acknowledgement of the infringement of his rights because of his own
conduct.

 Function is to show that, while the Def has committed a wrong, the award amounts to a
declaration of the Pl’s rights combined with an admonition of the Pl.
 Newstead v London Express Newspaper (1940)
 “Harold Newstead, thirty-year-old Camberwell man.”

Page 1 of 6
(iii) AGGRAVATED DAMAGES
 To compensate Pl for any aggravated harm done to him, eg to his feelings.
 Roshairee Abdul Wahab v Mejar Mustafa Omar & 2 Others (1996)3 MLJ 337
 “Encik Karpal Singh in his submission highlights that within the category of compensatory
damages, aggravated damages can also be awarded. This category of damages is described as:
Compensation for the injured feelings of the plaintiff where the sense of injury resulting from
wrongful physical act is justifiably heightened by the manner in which or motive for which the
defendant did it - per Lord Diplock in Broome v. Cassell & Co [1972] AC 1027 @ 1124. It is to
compensate the plaintiff for injuries affecting his feelings arising out of the tortious acts of the
defendants. In assessing this, all circumstances of the case must be taken into account, including
the character of the plaintiff -see Edmund Davis LJ in Ansell v. Thomas [1974] Crim. LR 31.
 In the opinion of this Court, the plaintiff may at the material time be weaker, less experience and
lower in rank to the lst and 2 nd defendants, but he was entitled, as all young officers do to self
respect and dignity. By the acts of the 1st and 2nd defendants he has suffered humiliation, loss of
pride and self esteem. Instead of being encouraged, advised and protected by these two seniors,
the plaintiff was insulted and assaulted by them. To compensate the plaintiff for the injury to his
feelings, this Court awards a sum of RM50,000 as aggravated damages.”

 Another example: Appleton v Garrett [1996] PIQR P1.

 Aggravated damages were awarded to the patients of a dentist for injury to feelings, mental
distress, anger and indignation upon learning that much of the dental treatments given to them
were unnecessary and to a large extent performed on healthy teeth. The dentist had deliberately
and in bad faith concealed from them the true condition of their teeth so that he could carry out
dental work for profit.

 See also Mohd Ridzwan Abdul Razak v Asmah Hj Mohd Nor [2016] 6 CLJ 346 
 FC introduced tort of sexual harassment as a valid cause of action.
 Affirmed award by HC for general (RM100,000) and aggravated damages (RM20,000) for the
emotional distress, annoyance and mental depression suffered by the victim due to the alarm,
fear and anxiety.

Page 2 of 6
(iv) EXEMPLARY / PUNITIVE DAMAGES
 Damages awarded with the objective of punishing the Def because of his outrageous/scandalous
conduct.
 Rookes v Barnard [1964] AC 1129 laid down these principles:

 (a) where there has been oppressive, arbitrary or unconstitutional acts by government
servant; (eg civil servants, politicians & police)

 (b) where the defendant's conduct had been calculated him to make a profit for himself
which might well exceed the compensation payable to the plaintiff; (not just financial
benefit) and

 (c) where the award is expressly authorised by statute.

 per Lord Devlin:

 (a) only recoverable by victims of Def’s wrongful conduct. If no victimization, then no claim.

 (b) quantum of damages must be moderate and not excessive.

 (c) the means of the parties are taken into consideration.

 (d) it is to be awarded “if but only if” compensatory damages are not sufficiently punitive.

 Broome v Cassell & Co [1972] AC 1027

 George v Metropolitan Police Commissioner (1984)

 IOI Corporation Bhd v Gemencheh Granite Sdn Bhd [2015] 10 CLJ 332  

 Held : High Court “From the evidence, the defendant showed no remorse in their action and
continued to trespass into the said land and make a profit for itself. Their lorries are still
crossing into the boundary and there are still some crusher run/stones/gravels deposited
on part of the said land. It was clear from the evidence that the attitude of the defendant is a
total disregard and disrespect of the rights and properties of the plaintiff…Despite the
defendant had the knowledge of trespass and a notice had been sent by the plaintiff since
March 2011 reminding the defendant to move out of from the said land and also to stop the
Page 3 of 6
 encroachment, the defendant deliberately and intentionally carried out the act trespass. The
defendant conduct was calculated to result in a profit by maximising it through the disposal
of quarry waste and storage of quarry stocks at the neighbouring land ie, the said land. In
this aspect the court without any hesitation finds that exemplary damages to be awarded
for reason mentioned earlier. This court is mindful that exemplary damages are punitive in
nature. The underlying policy behind a court's award for punishment, deterrence and
denunciation is to send a strong message to the defendant and potential tortfeasor. An
award of exemplary damages was also justified as the defendant obviously felt that the gain
from the deliberate trespass would outweigh any compensation it might have to pay. For
this reason, the court finds that an amount of RM50,000 is to be awarded to the plaintiff …”

(v) PARASITIC DAMAGES

 = damages for emotional distress is “parasitic”, ie the right to recover is dependent on physical
injury.
 Campbell v Paddington Corporation (1911)1 KB 869.

(vi) RESTITUTIONARY REMEDIES

 ie, remedies reversing enrichment, where the enrichment/gain in considered to be unjust
because it was acquired by a tort.

(vii)SPECULATIVE DAMAGES
 = damages which have not occurred yet, but the Pl expects them to.

(2) CLASSIFICATION OF DAMAGE & DAMAGES

(i) PECUNIARY & NON PECUNIARY LOSS / DAMAGE

 PECUNIARY LOSS / DAMAGE

 Cockburn CJ in Fair v London and North Western Rly Co (1869)
 “In assessing [the] compensation the jury should take into account two things; first, the
injury he sustains in his person, or his physical capacity of enjoying life. When they come
to the consideration of the pecuniary loss they have to take into account not only his
present loss, but his incapacity to earn a future improved income.”

 Lord Diplock in Wright v British Railway Board [1983]

Page 4 of 6
  “[Non-pecuniary] loss is not susceptible to measurement in money. Any figure at which the
assessor of damages arrives cannot be other than artificial…”

Division of Pecuniary loss

 Pecuniary loss (except consequent on personal injury, death or loss of reputation)

 Personal injury losses
 Losses on death
 Loss of reputation
 Physical inconvenience (except consequent on personal injury)
 Mental distress (except consequent on death or the plaintiff’s personal injury)

 NON PECUNIARY LOSS / DAMAGE

 Earl of Haldane LC in The Mediana [1900]:
 “You very often cannot even lay down any principle upon which you can give damages …
Take the most familiar and ordinary case: how is anybody to measure pain and suffering
in moneys counted? Nobody can suggest that you can by any arithmetical calculation
establish what is the exact sum of money which would represent such a thing as the pain
and suffering which a person has undergone by reason of an accident … But nevertheless
the law recognizes that as a topic upon which damages may be give.”

 The main heads of non-pecuniary damage.

 Pain & suffering
 Loss of amenities.
 Ichard v Frangoulis [1977]1 WLR 556 : Pl was compensated for loss/impairment of
the enjoyment of a holiday as a result of personal injuries.
 Lim Poh Choo v Camden and Islington Area Health Authority [1980]

(ii) SPECIAL & GENERAL DAMAGES

 SPECIAL DAMAGES
 Relates to Pl’s actual pecuniary loss between date of accident and date of trial
 Raja Letchumi [1971]
 Parvathy v Liew Yoke Khoon [1984]1 MLJ 183
Page 5 of 6
 GENERAL DAMAGES
 Post-trial pecuniary loss & pre-trial non pecuniary loss
 Loss after date of trial.
 Yang Salbiah v Jamil bin Harun [1981]

Page 6 of 6