CONTEMPTUOUS & EXEMPLARY DAMAGES

Does they serve the objective of Restitutio In Integrum?

Habibah Hadzim & Khadijah Abdul Rahim

Contemptuous Damages

Wasting the courts time P does not have a good claim

Amount of damages is the smallest denomination of money

Court disapproves Ps claim

Contemptuous Damages

Common in action of libel, assault and false imprisonment.

 Gurcharan Singh v Penguasa Tempat Tahanan Perlindungan Kamunting Taiping False Imprisonment Court held : The detention was unlawful, but court awarded RM 1 by way of damages. Instead of resting his good fortune, he chose to turn against the government claiming damages on technical error, such action is deplorable and to display its utmost displeasure and revulsion towards the Ps claim, this court hereby awards a sum of RM 1 as nominal damages to the P per James Foong J

Exemplary Damages

Punishment for D

Usually awarded in a very high amount

Deterrence

Exemplary Damages

Violating Ps right as well as insulting and reprehensible manner

When will court award exemplary damages? (Rookes v Barnard)

2 1
P has been a victim of oppressive, arbitrary, and unconstitutional act of a servant of the government

Ds act has been calculated by him to bring him profit (exceed the amount of compensation that he has to pay to P)

Defamation publisher had no genuine belief in the truth of what he had published

P has been a victim of oppressive, arbitrary, and unconstitutional act of a servant of the government
Foong Chee Chong v Ins Mohd Nasir Shamsuddin Breach of trust Court held : No need to award exemplary damages. The items were misappropriated by the wife of the first defendant and that could not be regarded as arbitrariness or oppressiveness on the part of the first defendant or the police department. The P therefore had failed to make out a case for exemplary damages per Ian HC Chin J

Ds act has been calculated by him to bring him profit (exceed the amount of compensation that he has to pay to P)

Sin Heap Lee-Marubeni Sdn Bhd v Yip Shou Shan Trespass to land Trial Court awarded 3.2 million for compensatory damages (exemplary damages: RM 900,000) A appealed, but appeal was dismissed. Conduct of A not only calculated to result in profit but also total disregard to their neighbour

Defamation publisher had no genuine belief in the truth of what he had published

Cassell & Co Ltd v Broome Defamation D realized that the profits which he would obtain from the sale of the book would more than compensate for the amount of damages that he would have to pay to the P. Court award 15,000 for compensatory damages and 25,000 for exemplary damages.

Restitutio In Integrum (RII)

Restoration to the original position The objective of this principle is to restore the P to his position prior to the commission of the tort. RII is the 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 sustain the wrong for which he is now getting his compensation or reparation Livingstone v Rawyards Coal Co

Opinion regarding RII

It is impossible to compensate for nonpecuniary loss in the sense of achieving RII because unlike pecuniary loss, this type of damage is not directly translatable into monetary terms - Death talk: the case against euthanasia and physician-assisted
suicide by Margaret A. Somerville

Heliliah Mohd Yusof JCA

In Bumiputera-Commerce Bank Bhd v TopA Plastic Sdn Bhd
In almost all actions for breach of contract, and in many actions for tort, the principle of restitutio in integrum is an adequate and fairly easy guide to the estimation of damage, because the damage suffered can be estimated by relation to some material lossNevertheless in all actions in which damages, purely compensatory in character, are awarded for suffering, from the purely pecuniary point of view the plaintiff may be better off. The principle of restitutio in integrum, which compels the use of money as its sole instrument for restoring the status quo, necessarily involves a factor larger than any restoring pecuniary loss.

Does contemptuous damages serve the objective of RII?

Contemptuous Damages : No, it does not serve the objective of RII. In the first place, the Ps claim was not of a good one(bad claim)-should have never been brought. Damages of this kind may imperil the claimants chances of getting his cost. As a result, P is awarded with very small and trifle sum.

Exemplary Damages?

Yes.
The compensation given to the plaintiff is high and usually more/bigger sum than what he suffers. Exemplary damages is awarded in addition to General & Special Damages. Thus, it serves the objective of RII- to restore P in the position prior to the tort/wrong committed.

THANK YOU
Any question?