LAW OF TORT II LBA 2103

Judicial remedy, damages, injunctions, specific restitution of property and extinction of liability are the remedies provided under the law of tort. Explain the application of the said remedies

LECTURER: SIR MUSTAFA `AFIFI BIN AB HALIM

STUDENTS : MUNIRATUL FARHANA BINTI AB RAHMAN (1091145) MUHAMMAD SYAHIR AZFAR BIN ROBANI (1091330) MUHAFIZA BINTI MOHD SAID (1091561) NUR `ATIQAH BT ABD SAMAD (1091578)

2010/2011 FACULTY SYARIAH AND LAW ISLAMIC SCIENCE UNIVERSITY MALAYSIA

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CONTENTS

1.0 INTRODUCTION

2.0 JUDICIAL REMEDIES 2.1 DAMAGES 2.1.1 GENERAL AND SPECIAL DAMAGES 2.1.2 CONTEMPTUOUS DAMAGES 2.1.3 NOMINAL DAMAGES 2.1.4 EXEMPLARY DAMAGES 2.1.5 AGGRAVATED DAMAGES 2.2 INJUNCTIONS 2.3 SPECIFIC RESTITUTION OF PROPERTY 3.0 EXTINCTION OF LIABILITY 4.0 CONCLUSION BIBLIOGRAPHY

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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 extrajudicial 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

The Concise Oxford English Dictionary, 2002. Oxford: Oxford University Press.10th Ed. Cheong May Fong. 2007. Civil Remedies in Malaysia. Malaysia: Sweet & Maxwell Asia. p.1. R.L Anand & L.S.Sastri`s. 1990. Law of Torts. India: The Law Book Company (P). 5th Ed. p.373. Cheong May Fong. 2007. Civil Remedies in Malaysia. p.2.

RR Sethu. 1993. DEMISE OF SELF-HELP AS A REMEDY. Vol 11 MLJA 25. LexisNexis Asia : The Malayan Law Journal Articles. p. 3.
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Norchaya Talib. 2010. Law of Torts in Malaysia. Selangor: Sweet & Maxwell Asia. 3rd Ed. p. 443.

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 its 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

[1983] 1 AC 520 [1989] AC 177 n.a. n.d. Inns of Court School of Law. 2005. Remedies. New York: Oxford Universities. p. 35. ibid. (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 plaintiffs 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

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(1868) LR 3 HL 330 Norchaya Talib. 2010. Law of Torts in Malaysia. p. 443 (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 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 defendants 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. R.L Anand & L.S.Sastri`s. 1990. Law of Torts. p.387. ibid. p.388; Cheong May Fong. 2007. Civil Remedies in Malaysia. Malaysia: Sweet & Maxwell Asia. p. 221 [1970] 2 MLJ 89 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 plaintiffs property before his rights 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 owners rights from enjoying the property without the owners consent25 or trespass to land. It is under the courts 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 plaintiffs 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 plaintiffs land, the plaintiffs only may recover the value of the coal under the ground instead of the total value once the coal had been mined.29

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http://en.wikipedia.org/wiki/Restitution Norchaya Talib. 2010. Law of Torts in Malaysia. p. 467. http://www.boddunan.com/education/21-law-a-legal/1696-remedies-and-damages.html Specific Relief Act 1950 (Act 137). s. 7(1) (1839) 5 M & W 351, 151 ER 149

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(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 defendants 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 defendants 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) [1993] 32 EGLR 102 (CA) http://legal-dictionary.thefreedictionary.com/Mesne+profits Robert Stevens. 2007. Torts and Rights. p.81. 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. W.V.H Rogers. 1981. Winfield & Jolowicz of Tort. 3rd Ed. London: Sweet & Maxwell. p. 647.

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Robert Stevens. 2007. Torts and Rights. p. 241.

Nitrigan Eireann Teoranta v Inco Alloys [1992] 1 ER 854 Nicholas R. Mcbride & Roderick Bagshaw. 2005. Tort Law. London: Pearson Education . Limited.2nd Ed. p. 9.

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John Looke. 2005. Law of Tort. 7th Ed. London: Pearson Education Ltd Bhd. p. 443.
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.

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R.L Anand & L.S.Sastri`s. 1990. Law of Torts. p. 439. ibid. p.440. 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 (1982) 2 QB 511 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.

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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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