Damages Explained

DAMAGES
Introduction
Damages
Nature of Damages
Kinds/Types of damages
Extinction of Liability
Conclusion
DAMAGES
Introduction:
• The victim of a tort may avail himself of two types of remedies,
being either judicial or extra-judicial remedies. In other words,
remedies in tort fall into two categories: judicial and extra-
judicial.
• The two principal remedies available to the victim of tort are
payment of damages to compensate for the harm he has suffered
and, where appropriate, an injunction to prevent future harm.
Damages are the predominant remedy.
DAMAGES
Damages:
• The main purpose of damages in tort is to place the plaintiff
in the position as if the tort had not been committed:
‘Compensation should nearly as possible put the party who
has suffered in the same position as he would have been in if
he had not sustained the wrong’. (See the case of Lim Poh
Choo v Camden and Islington Area Health Authority
[1980] AC 174, 187).
• This remedy comprises monetary compensation and is the
main and most common form of remedy sought by a
plaintiff in a tort action. In order to successfully claim for
damages the plaintiff must prove two things: firstly, that a
tort has occurred; and secondly, that the plaintiff has
suffered some damage.
DAMAGES
Damages:
• It must be stressed that the requirement of proving
damage is a general principle as there are torts
which are actionable per se that is; these torts are
actionable without proof of damage such as
intentional torts. Damages may still be awarded by
the court as a recognition of the plaintiff’s right.
• Where actual damage is suffered by the plaintiff,

the amount of damages will differ accordingly to
reflect the loss incurred.
DAMAGES
Nature of Damages:
1) Damages recoverable only once
• The general principle is that there is only one cause of action for each
tort and damages must be recovered once and for all and must be
awarded in single lump sum.
• In other words, damages are recoverable only once. See the case of
Fetter v Beale-where the plaintiff recovered damages from the
defendant for assault and battery. Several years later he discovered his
injuries were much more serious than he had at first thought, and he
brought a second action against the defendant for additional damages.
• The court denied his second claim and stated that a person may only
claim for damages once for a single tort.
• The plaintiff may not claim again for the same tort because the injury
that he suffers is more serious than at the date judgment was given. Of
course, if the defendant commits another tortious act against the
plaintiff, albeit the same kind of tort but at a later date, the plaintiff will
have a separate cause of action in respect of the second tort.
DAMAGES
Nature of Damages: (Continuation)
• There are two exceptions to the general principle stating that
damages are recoverable only once. The two exceptions are:
i. Violation of two separate rights- Hence, where a defendant’s
single wrongful act challenges two or more different rights of the
plaintiff, or a series of the defendant’s wrongful acts challenges
several rights of the plaintiff, he may institute separate actions in
respect of each of his rights.
In Brunsden v Humphrey [1884] 14 QBD 141, the plaintiff’s taxi
collided with the defendant’s van due to the latter’s negligence.
The plaintiff had received damages for the damage to his taxi, but
subsequently brought a second claim for personal injuries
sustained in the collision. The court held that the plaintiff was
entitled to bring the second claim as two of the plaintiff’s rights
had been infringed in the collision.
DAMAGES
i. Violation of two separate rights-
However, in Talbot v Berkshire County Council [1994] QB 290- it was
held that Brunsden v Humphrey might have been wrongly decided as it
failed to apply the rule in Henderson v Henderson.
In Henderson v Henderson, applying the doctrine of res judicata, it was

held that 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 advance arguments or claims which
they failed to put forward on the first occasion- as was the situation in
Brunsden v Humphery. It is different however, if the second issue
could not have been dealt with in the first action.
DAMAGES

i. Violation of two separate rights
• Still on the issue raised above, in Talbot v Berkshire County
Council- the Court of Appeal however stated that the rule would
not apply, in that the plaintiff may make a second claim, if there
exists ‘special circumstances’ and these are:
(i) where the plaintiff was unaware of the existence of the claim, or
(ii)where there is an agreement between the parties that the action
would be held in abeyance, or
(iii)where the plaintiff had not brought his case on the (second) issue
in reliance on a representation made by the defendant.
• In Wain v F Sherwood & Sons Transport Ltd, the plaintiff was involved
in a road traffic accident. He claimed damages caused to his van but did
not bring any claim for personal injury, namely his acute back-pain as a
result of the accident.
• When he later mentioned about his back-pain to his counsel, the latter
failed to advise the plaintiff that if the pleadings were not amended to
include a claim for personal injury, such action might be barred in future.
As a result of his counsel’s negligence, when the plaintiff brought a second
action in respect of his back injury, the Court of Appeal refused him
remedy.
• The fact that the claim for the back injury was not made was due to his
counsel’s error, did not fall within ‘special circumstances’ as mentioned in
Talbot’s case.
DAMAGES

• Although the general rule in Henderson v Henderson is that two
actions will not be allowed to arise from the same facts and by the
same litigant.
• However, in Malaysia this might have been ‘literally interpreted’ in
Malbai v Nawi [1962] 28 MLJ 99- where the plaintiff and the
defendant were in a fight and X, after helping the defendant, beat the
plaintiff up. The plaintiff, who had successfully claimed from X,
subsequently claimed from the defendant. The defendant contended
that the assault was a joint assault, and since the plaintiff had claimed
from X, he could not claim from the defendant. The court held that the
attacks from X and the defendant were different in nature, and the
plaintiff’s claim against the defendant was allowed.
DAMAGES
ii. Continuing injury
• The second exception is where the damage is continuous,
such as trespass to land and continuing nuisance.
• In Tay Tuan Kiat & Anor v Pritam Singh [1987] 1 MLJ
276-where the defendant built a wall that encroached onto
the plaintiff’s land, the court held that there was continuing
trespass as long as the wall was not demolished.
• It is important to note that trespass is actionable per se and
gives rise to a fresh cause of action from day to day. In the
case of continuing nuisance, a fresh cause of action arises
upon materialisation of further or subsequent damage.
ii. Continuing injury
• In Darley Main Colliery v Mitchell- where the defendant mined
underneath the plaintiff’s land. The plaintiff land subsequently caved in,
and the defendant paid damages accordingly. Fourteen years later the
plaintiff’s land caved in again.
• The House of Lords held that the plaintiff was entitled to damages in the
second cause of action. Damages however could only be recovered for
any damage up to the day of the trial. A plaintiff cannot claim any
prospective damage, however probable the future damage may be.
• See also the case of West Leigh Colliery Co Ltd v Tunnicliffe &
Hampson Ltd [1908] AC 27- where the court held that a plaintiff cannot
recover damages for any reduction in the value of his land based on
damage that might occur in the future.
DAMAGES
Nature of Damages : (Continuation)
2) Restitutio in integrum
• The basic principle for the measure of damage in tort as well as in
contract is that there should be retitutio in integrum. In other words,
the general rule is that damages is to be assessed on a compensatory
basis, which is to restore the plaintiff to his position prior to the
commission of the tort. This is known as the principle of restitutio in
integrum.
• In Livingstone v Rawyards Coal Co, it was held that restitutio in
integrum is that sum of money which will put the party who has been
injured, or who has suffered, in the same position as he would have
been in if he had not sustained the wrong for which he is now getting
his compensation or reparation.
• It should be noted that restitutio in integrum is easily achieved if the
loss is financial, but is rather impossible with pain and suffering
incurred as a result of personal injury.
DAMAGES
• Still on the operation of the concept of damages, there are limitations to the
principle operation of restitutio in integrum. The limitations are:
i. Mitigation of damage
• The victim of a tort is obliged to mitigate his loss, that is to say, he may not
claim damages in respect of any part of his loss that would have been
avoidable by reasonable step on his part. Hence, the plaintiff will not be able
to claim as damages, any loss that he has incurred due to lack of reasonable
steps on his part. What is reasonable is a question of fact in each case. Where
however, the reasonable steps taken to minimise the consequences of the
defendant’s tort actually increases the plaintiff’s financial loss, the increased
expenses and loss would still be attributable to the defendant’s tort and may
be fully recovered from the defendant. The duty to mitigate does not however,
protect a defendant from any inflationary increases in the amount. See the
case of Lee Tai Hoo & Anor v Lee Swee Keat & Anor [1987] 1 MLJ 304
DAMAGES
ii. Final damage caused by plaintiff’s impecuniosity
• In order to understand the operation of this limitation, reference must be made
to the case of Dodd Properties (Kent) Ltd v Canterbury City Council [1980]
1 All ER 928- where it was held that if the plaintiff cannot minimise his loss
due to his impecuniosity, the defendant will be held to be fully liable, but
where the damage itself is a product of the plaintiff’s impecuniosity, then it
becomes too remote.
• It should be noted that this latter principle operates extremely unfairly
particularly to the impecunious plaintiff . From the legal standpoint, firstly, it
does not sit well with the eggshell skull principle under which the defendant
is required to take the plaintiff as the defendant finds him. Secondly, it does
not accord with the principle of restitutio in integrum itself. Thirdly, it is
irreconcilable with the principle laid down in Dodd Properties that if the
plaintiff is unable to mitigate his loss, the defendant must compensate the
plaintiff fully.
DAMAGES

2) Restitution in integrum
• Still on the issue of impecunious plaintiff, it could be argued
that from a social engineering perspective, the purpose
behind awards made to plaintiffs is to compensate them and
to fulfil the idea of wealth distribution.
• Hence, the rule which specifically precludes an impecunious
plaintiff from receiving any compensation for tortious act of
a defendant, because he is impecunious, alters one
fundamental purpose of tort law.
2) Restitution in integrum
Still on the issue of impecunious plaintiff……
• Furthermore, naturally, if it is not the fact of impecuniosity but some
other factors, such as the negligence of the plaintiff which materially
contributes to his final damage, no unfairness arises.
• See the case of The Flying Fish –where the plaintiff’s ship was
destroyed as a result of the defendant’s negligence. After the collision,
the captain of the plaintiff’s ship refused any help, as a result of which
the ship was destroyed.
• The court held that the plaintiff was entitled to compensation for the
collision but not for the consequential damage as that was due to the
negligence of the captain.
DAMAGES
Types of Damages:
a) General & Special Damages
• General damages refers to damage or loss that the law
presumes a person incurs as a consequence of a tort. In other
words, general damage is the damage that is presumed to
flow from torts which are actionable per se, and so need not
be specifically pleaded.
• General damage represent the loss to the plaintiff which
could not be calculated in the manner that special damages
can calculated: for example, those representing pain and
suffering, loss of reputation in a libel action and the loss of
amenities and future loss of earning.
Types of Damages:
a) General & special damages
General Damages …..CONT
• In Hj Ariffin Hj Ismail v Mohammad Noor Mohammad [2001]
2 CLJ 609, the Court of Appeal held that future loss of earnings
are awarded for loss that is capable of assessment at the trial date.
The loss must be substantial, not remote or speculative.
• Absent this evidence, loss of earning capacity may be awarded if
there is substantial or real risk that the plaintiff will end his
working life, loss his job or get less paid employment.
• General damages represent the loss to the plaintiff that cannot be
precisely quantified. These are losses such as pain and suffering,
loss of amenities, loss of expectation of life, etc.
DAMAGES
Types of Damages: (Continuation)

a) General & Special damages
• Special damages refers to damage or loss which the law
does not presume to arise from the tort. In other words,
special damages represent the loss to the plaintiff up to trial
which can be calculated, such as property damage, medical
cost and loss of earning until that point.
• Also, special damage refers to the damage that the plaintiff
must plead and prove as part of his cause of action in torts
where damage is the gist of the action e.g. negligence,
nuisance, slander which are not actionable per se and strict
liability under the rule in Rylands v Fletcher.
• Special damage need to be specifically pleaded. See the case of
Sam Wun Hong v Kader Ibramshah [1981] MLJ 295. See also
the case of Ong Ah Long v Dr S Underwood [1983] 2 MLJ 324-
where it was 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.
• In other words, the plaintiff must give notice in his pleadings that
he is claiming for special damages.
• Special damages represent the plaintiff’s actual pecuniary loss
between the date of the accident and the date of the judgment.
DAMAGES
• General damages are normally unliquidated damages in that the amount is
not fixed. On the other hand, special damages are calculated from the date
the tort occurred until the time the case is brought to court. They consist of
liquidated damages, or an amount which may be computed or determined
monetarily.
Example:
In practice, losses that are capable of being calculated with reasonable
accuracy are pleaded as ‘special damages’. Inexact or unliquidated losses
(although they are not presumed and therefore must be pleaded) are
compensated by an award of ‘general damages’. Take a case of personal
injuries action, accrued expenses such as damaged clothings, medical
expenses and loss of earnings to the date of trial are special damages. Pain
and sufferings and loss of amenity (prospective loss of earnings) are treated
as general damages.
DAMAGES
b) Contemptuous damages
• Contemptuous damages are awarded to a plaintiff when the court feels that the
plaintiff does not have a good claim. It is awarded when the court does not in fact
support the plaintiff’s claim and the amount of damages is the smallest
denomination of money. In other words, contemptuous damages relate to the
award of a derisory sum, whilst technically correct, the court is of the opinion that
the claim itself is meritless. Hence, the plaintiff runs the danger of being denied his
costs, or may even be ordered to pay the defendant’s costs. In other words, where
contemptuous damages are awarded, the judge has a discretion to instruct the
plaintiff to bear the cost of both parties.
• Contemptuous are common when the court feels that morally, the plaintiff
deserved what happened to him, such as libel, assault and false imprisonment. The
usual practice is that the party who loses the case pays for the cost of the trial.
• Contemptuous damages may be awarded for all types of torts, whether actionable
per se or otherwise.
DAMAGES
c) Aggravated damages
• Aggravated damages may be awarded if the court wishes to express disapproval of
the defendant’s behaviour, as a result of which the plaintiff has suffered more than
would normally be expected in the situation. In other words, aggravated damages are
awarded when the plaintiff has suffered injury or loss other than pecuniary loss, such
as a smear on his reputation, feeling of shame, pain and so forth. It may be awarded
for malicious falsehood. In the local case of Happy Motoring Co Sdn Bhd v Wong
Hee Sing @ Bibiana Wong [2017], the Brunei Court of Appeal observed that: No
award for aggravated damages can be made in the absence of a justifiable claim for
compensatory loss. Further, aggravated damages cannot be awarded for claims in
negligence and breach of contract. The Court referred to the cases of AB and Others v
South West Water Services Ltd [1993] 1 All ER 609 at 624-5 and 629 and Kralj and
Another v McGrath and Another [1986] 1 All ER 54 at 61e; “It is my view that it would be
wholly inappropriate to introduce into claims of this sort, for breach of contract and
negligence the concept of aggravated damages.” Woolf J. Aggravated damages may be
awarded in certain other torts such as defamation, false imprisonment, assault, deceit,
nuisance and the like where the tort itself may take a particularly aggravated form but not
in negligence. In the instant case there was no foundation for the award of aggravated
damages which must therefore fail.
DAMAGES
• See the case of Tan Chong & Son Motor Co Sdn Bhd v Borneo Motors (M)
Sdn Bhd [2001] 3 AMR 3789.
• In awarding aggravated damages, the court will take into account the
defendant’s act and his motive when the tort was committed. In other words,
factors such as the defendant’s behaviour, his intentions and motives, his high-
handed, malicious, or oppressive manner may be taken into account in assessing
the aggravation of injury to the plaintiff’s feelings of dignity and pride.
• Aggravated damages may be awarded in addition to general damages. Libel
cases are good examples of the award of this type of damages. In Henry Wong
v John Lee & Anor [1980] 2 MLJ 254, the court held that damages in a libel
action is made up of actual pecuniary loss and anticipated pecuniary loss or any
social disadvantages which result or may be thought likely to result, from the
wrong which has been done. See also the case of Bisney v Swanston.
DAMAGES

• Aggravated damages should not be confused with exemplary damages, although
they often are in practice. The difference between the two is that aggravated
damages are not intended to punish the defendant (i.e. not punitive in nature), as
the case with exemplary damages, but it 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 [1997] 1 CLJ supp 39, the court awarded
aggravated damages to a ragging victim, for instead of being protected by his
seniors, he was made to suffer humiliation, loss of pride and self-esteem. The
court also stated that in assessing aggravated damages, all the circumstances of
the case including the character of the plaintiff, is to be taken into account.
DAMAGES
• Still in addressing the issue of aggravated damages being compensatory in nature as
opposed to punitive, reference can also be made to the case of Bisney v Swanston-
where as a result of a disagreement with the plaintiff, the defendant who was a trailer
driver parked his trailer in front of the plaintiff’s coffee-shop in such a way that the
latter’s business was adversely affected. The court awarded £250 to the plaintiff as
aggravated damages, over and above a separate sum for general damages.
• Furthermore, it has been said that the distinction between aggravated and exemplary
damages is that aggravated damages are awarded for the conduct that shocks the
claimant (and therefore constitutes a real loss), and exemplary damages are awarded
for conduct that shocks the court. See the case of Rookes v Barnard [1964] AC
1129- where the House of Lords held that exemplary damages should be awarded
only in three circumstances: where the plaintiff has been a victim of oppressive,
arbitrary or unconstitutional acts of servants of the government; or where the
defendant’s act has been calculated by him to bring in profit which exceeds the
amount of compensation that he has to pay to the plaintiff; or where a statute allows
the award of exemplary damages.
DAMAGES
d) Exemplary damages
• Exemplary damages are awarded to deter the defendant from repeating his act in future.
Therefore its function is not compensatory, as a punishment and deterrent to the
defendant. Hence, the intention of the court is to punish the wrongdoer by an additional
award on top of the award of compensatory damages, and perhaps to deter others who
might be tempted to act in the same way as the defendant. Exemplary damages may be
awarded in addition to general or aggravated damages.
• It is important to make reference to the case of Rookes v Barnard [1964] AC 1129;
[1964] 1 All ER 367 while discussing or addressing the concept of exemplary damages.
In this case, the plaintiff was an employee of British Overseas Airways Corporation
(BOAC) and a 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. The House
of Lords held that exemplary damages could only be awarded in the following
circumstances: where the plaintiff has been a victim of oppressive, arbitrary or
unconstitutional acts of servants of the government; or where the defendant’s act has
been calculated by him to bring in profit which exceeds the amount of compensation that
he has to pay to the plaintiff; or where a statute allows the award of exemplary damages.
DAMAGES
• Apart from the three circumstances addressed above (i.e. in the case of Rookes v
Barnard), a court must also consider three additional factors before an award of
exemplary damages may be made; firstly the plaintiff cannot recover such damages
unless he himself is a victim of such ‘punishable behaviour’; secondly since
exemplary damages can be used for and against liberty and is a form of punishment
without the safeguard of the criminal law, the weapon must be used with restraint
and in this regard awards of exemplary damages should be moderate, but at the
same time reflect the gravity of the wrongdoing. Thirdly, the financial means of the
parties, though irrelevant to compensatory damages, are relevant in assessing an
award of exemplary damages.
• The application of the second category laid down in Rookes v Barnard is illustrated
in Cassell & Co Ltd v Broome [1972] 1 All ER 801- where the defendant, a
publisher and writer of a book, wrote that the plaintiff, who was a retired but once
well-known naval officer, committed a wrong which led to a wartime disaster. The
court found that the defendant realised the profits that he would obtain from the sale
of the book would more than compensate for the amount of damages that he would
have to pay the plaintiff. Thus the defendant was ordered to pay £15,000 as general
damages and £25,000 exemplary damages to the plaintiff.
DAMAGES
• In addition to the above, it would appear that the second consideration (i.e. in the
case of Rookes v Barnard) is particularly relevant in determination of damages
recoverable in a defamation action, that ‘one man should not be allowed to sell
another man’s reputation for profit’, and this is neatly illustrated by the Court of
Appeal’s decision in MG Pillai. The principle is of general application, and
applicable in all circumstances ‘necessary to teach the wrongdoer that tort does not
pay’. See also the case of Alfred Templeton & Ors v Low Yat Holdings Sdn Bhd
& Anor [1989] 2 MLJ 202- where the plaintiff and the defendant were neighbours.
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
compound. The court allowed the plaintiff’s claim for aggravated and exemplary
damages as the defendant’s act fell under the second category enunciated in Rookes
v Barnard.
• A controversy surrounding the award of exemplary damages is whether a claimant
wishing to recover such damages is required to prove that his case merely comes
within one of the Lord Devlin’s three categories in Rookes v Barnard; or if
additional to that, he may also prove that the cause of action is one in respect of
which exemplary damages was available prior to Rookes v Barnard.
DAMAGES
• Still in addressing the issue raised above, reference can be made to the case
of AB v South West Water Services Ltd [1993] 1 All ER 609- where the
court denied a claim for exemplary damages because the claim did not fall
within the ambit specified in Rookes v Barnard and because exemplary
damages had never been awarded for public nuisance cases. However, AB
was criticised for introducing irrationality into the law and was overruled in
Kuddus v Chief Constable of Leicestershire Constabulary [2001] 3 All ER
193. Hence, the position now is that an award of exemplary damages are not
conditioned on it having been recognised as justifying such an award before
Rookes v Barnard. The House of Lords in Kuddus held that adopting such
a rigid rule would limit the future development of the law. In deciding
whether the plaintiff’s case falls within one of the categories in Rookes v
Barnard, it is the features of the behaviour, rather than the cause of action,
which ought to be the focus.
DAMAGES
(e) Nominal damages
• Nominal damages are awarded when the plaintiff proves that the defendant has
committed a tort, even though the plaintiff has not suffered any actual loss.
The plaintiff is awarded damages in recognition of the fact that there has been
violation of his right.
• Nominal damages are also awarded in cases where damage is but its amount is
not sufficiently proved. Nominal damages are only granted to torts which are
actionable per se, and does not necessarily involve a small sum of money. See
the case of Syarikat Kemajuan Kuari (M) Sdn Bhd v Su bin Abdullah [2003]
1 AMR 787 where RM5000 was awarded as nominal damages.
• The difference 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
[1969] 1 MLJ 100 at 103, 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.
DAMAGES
(e)Nominal damages
• See also the case of Tay Tuan Kiat v Pritam Singh Brar [1987] 1 MLJ
276, where 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 RM500 was awarded.
DAMAGES
Extinction of Liability:
• Liability of the defendant may be extinguished in several different ways as
follows:
i. Waiver- it means that the plaintiff ‘releasing’ his right to claim for damages
from the defendant. For example, the plaintiff instead of claiming for
damages, chooses to institute an action for restitution, where he is in
essence demanding the defendant to pay him the price of the goods and any
profit that the defendant has received as a result of disposing of his
property. Torts which are capable of being waived are those in which the
defendant may acquire a pecuniary profit, such as the torts of conversion,
trespass to land where things are extracted from the land and sold, and even
trespass to goods.
ii. Accord and satisfaction- here liability is extinguished through an agreement
made between the parties. For example, if Rahman negligently hit Rahim
while he was crossing the road, Rahman and Rahim may have an agreement
(accord) whereby if Rahim agrees not to sue Rahman if he were to pay him
$500 now, or say, within a month from today (satisfaction).
DAMAGES
Extinction of Liability: (Continuation)
iii. Release- this refers to the plaintiff’s agreement to either not to institute
proceedings against the defendant, or where proceedings have
commenced, to discharge the defendant against any tortious liability.
Hence, a release may therefore be given either before or after the
commencement of the action. The difference between a release and an
accord and satisfaction is that with a release, the declaration by the
plaintiff is embodied in a deed and does not require valuable
consideration as with accord and satisfaction.
iv. Judgment- final judgment by the court has two effects. 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.
DAMAGES

v. Limitation- Actions founded on tort must be brought before
the expiration of six years from the date on which the cause
of action accrues (see sec 6(1) of the Laws of Brunei
(Chapter 14) Limitation Act) otherwise a defendant may
plead limitation as a defence to the action against him. This
limitation period may be extended if the plaintiff is under a
disability (see section 32 of the same Act) or postponed in
cases of fraud or mistake (see sec 38 of the same Act),
where time only begins to run when the fraud or mistake is
discovered or could with reasonable diligence, be
discovered.
DAMAGES
vi. Death of a party- on the death of any person all causes of action subsisting against or
vested in him shall survive against, or for the benefit of his estate. See sec 8(1) of the
Malaysian Civil Law Act 1956. Insofar as the law of tort is concerned, this rule does
not apply to a cause for defamation. Proceedings (except for defamation) against the
estate of the deceased person are maintainable only if they were pending at the dead
of his death or the proceedings are taken not later than six months after his personal
representative has taken out representation. See sec 8(3) of the Malaysian Civil Law
Act 1956. See section 5(1) of the Laws of Brunei (Chapter 160) Fatal Accidents &
Personal Injuries Act)
• It is important to note that where a cause of action survives for the benefit of the
estate of that person shall not include exemplary damages, any damages for
bereavement, damages for loss of expectation of life and any damages for any loss of
earnings for a period after that person’s death. See sec 8(2) of the Malaysian Civil
Law Act 1956 and the case of Goh Chai Huat v Lee Mui Ping (f) & 3 Ors [2000] 4
AMR 4149- where the Court of Appeal disallowed claim for loss of future earnings.
See also section 12(1)(a) of the Fatal Accidents & Personal Injuries Act.
• Furthermore, where the death of that person has been caused by the act or omission
which give rise to the cause of action, the amount of damages recoverable cannot be
made in reference to any loss or gain to his estate consequent on his death. Funeral
expenses however, may be included in the award of damages. See sec 8(2)(c) and see
also sec 7(3)(ii) of the Malaysian Civil Law Act 1956.
DAMAGES
Conclusion:
• As mentioned earlier, the two principle remedies available
to the victim of a tort are damages to compensate for the
harm he has suffered, and where appropriate, an injunction
to prevent future harm. However, damages is the
predominant remedy.

Damages Explained

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Damages Explained

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DAMAGES

• Where actual damage is suffered by the plaintiff,

In Henderson v Henderson, applying the doctrine of res judicata, it was

Nature of Damages: (Continuation)

Nature of Damages: (Continuation)

Nature of Damages: (Continuation)

Types of Damages: (Continuation)

Types of Damages: (Continuation)

Extinction of Liability: (Continuation)

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