MAY 9 — A well-known legal maxim is ubi jus ibi remedium. It means “where there is a wrong, there is a remedy.”
Given the maxim, no wrong should be allowed to go without any compensation if it can be redressed by the court of law.
The courts therefore have been given wide discretionary powers to award legal remedies, one of which is general damages. Some of the examples of general damages are loss of reputation in a defamation claim, pain and suffering, loss of amenities, psychological effects in car accident claims.
In layman terms, general damages are monetary compensation awarded for harm or injuries or losses suffered by a plaintiff that are not quantifiable or measurable to an exact amount at the commencement of the suit.
That was why, almost 70 years ago in the case of Tham Kwa Chin v Choong Hoong Sum [1954], when the plaintiff quantified general damages in the sum of US$15,000 in his claim, Justice Spenser Wilkinson said:
“I would point out that it is neither necessary nor in accordance with the best traditions of pleadings to claim any specified sum in a statement of claim when claiming general damages. Particulars with figures for special damages have, of course, to be given but for general damages the proper prayer is ‘The plaintiff claims damages’.”
Where general damages was quantified, for example as in the case of Raja Zam Zam v Vaithiyanathan [1965], Justice Raja Azlan Shah (as HRH then was) observed that it was a peculiar way of claiming general damages.
It was then not the practice to specify the amount of general damages. The learned judge applied the dicta of Lord Goddard in the English case of British Transport Commission v Gourley [1956]:
“In an action for personal injuries the damages are always divided into two main parts. First, there is what is referred to as special damage which has to be specifically pleaded and proved. Secondly, there is general damages which the law implies and which is not specifically pleaded.”
The issue of quantifying general damages, with particular reference to a claim founded on a defamation action, came up for consideration in the Court of Appeal in the case of Skrine & Co v MBf Capital Bhd & Anor [1998]. Judge of Court of Appeal Gopal Sri Ram (as he then was) said:
“We are unable to agree with counsel’s submission that there was once a practice of quantifying general damages but that has since fallen into disuse and it would be wrong to reinstate it. In our judgment, there is no rule of practice going either way.
“A plaintiff in a defamation action may quantify his damages, in which event he runs the risk of not receiving anything more than the amount stipulated in his writ. However, he is equally at liberty not to specify a sum in which event arguments may be addressed in the usual way at the conclusion of the trial upon that issue.”
The Court of Appeal in Dr Mohd Yusof Bin Ismail V Hj Ismail Bin Mohd Noor [2011] referred to the passage above and said that it had left the quantification of general damages very much to the parties.
Accordingly, general damages might be quantified, in which case, a ceiling was fixed for the compensation to be awarded. Parties might also keep general damages at large so that the court might subsequently embark on an exercise to assess damages.
So, it looks like it is not a peculiar way of claiming general damages.
In that case, the Court of Appeal was implored to review the ruling in Skrine & Co case. However, since both counsels for the plaintiff and the defendant concurred that general damages in a defamation action should not be quantified and should instead be left at large, the Court of Appeal ruled that the question of reviewing the passage above did not arise.
And since both counsels concurred, the appellate court ordered that the quantification for general damages in the sum of RM1 million to be deleted. The claim for general damages should read ‘general damages’ simpliciter.
The above cases must, however, be reviewed in the light of the Rules of Court 2012 (RC) which repealed the earlier rules of court (Rules of the High Court 1980 and Subordinate Courts Rules 1980) and came into force on August 1, 2012.
The RC includes a new rule 12(1A) in Order 18 that states as follows:
“No party shall quantify any claim or counterclaim for general damages.”
The rule has since been referred to by the courts in cases where the plaintiff quantified the general damages in the claim. For example, in the recent case of Tan Sri David Chiu Tat-Cheong v Seema Elizabeth Isoy [2021], in a claim for defamation the plaintiff prayed for RM1.5 million as general damages.
Judicial Commissioner Quay Chew Soon said:
“General damages should not have been quantified. Doing so is in breach of Order 18 rule 12(1A) of the Rules of Court 2012.”
In a claim for defamation, damages are “at large.” There is no fixed scale or formula. Each case is to be decided on its own merits, based on its own facts and circumstances.
According to the learned judge, the award of damages must not be exorbitant or excessive. Damages should be compensatory and not punitive. The tort of defamation exists to protect, not the person or the pocket, but the reputation of the person defamed.
In actions for defamation, damages are awarded to compensate the plaintiff for the injury to his reputation and the hurt to his feelings. They operate to vindicate the plaintiff to the public and to console him for the wrong done.
The learned judge observed:
“The trend of damages awarded shows that it is no longer in the realm of millions of ringgit. As remarked by the Court of Appeal in Syed Nadri Syed Harun & Anor v Lim Guan Eng & other appeals [2019], the days of million Ringgit award for defamation have long gone and consigned to history.
“I think that sentiment remains valid, notwithstanding that the decision of the Court of Appeal was overruled by the Federal Court by a majority decision.”
What is important, though, is the ruling that quantifying general damages breaches Order 18 rule 12(1A) RC. Even though the breach has been held in a more recent case of Tropicana Golf & Country Resort Bhd v Loke Wei Kuen & Anor And Other Cases [2022] as an irregularity that does not nullify the suit, the rule remains a rule that has to be observed and complied with.
Claims of millions of ringgit in general damages will make the news headlines, but no party shall quantify general damages in a civil claim.
* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.
