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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
CASE: HENDERSON V
HENDERSON [1843]3 HARE
100
lawyers
negligence
Rule
in
Henderson
v
Henderson applies unless if it
falls
under
special
circumstances as stated in the
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
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
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
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
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
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
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
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
EXTINCTION OF
LIABILITY
Waiver
Accord and satisfaction
Release
Judgment
Limitation