Remedy PDF

Remedy About us What are the Remedies Available in the Law of Torts? 2  A party is said to be ‘aggrieved’ when something that they may have been enjoying has been taken away from them by another party. This is an infringement of a pa...

Remedy About us What are the Remedies Available in the Law of Torts? 2  A party is said to be ‘aggrieved’ when something that they may have been enjoying has been taken away from them by another party. This is an infringement of a party’s rights, and it is treatable by law. A remedy is one such treatment.  Lim Poh Choo v Camden and Islington Area Health Authority AC 174 -Lord Scarman: 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. 4 An Overview There are two broad types of remedies in Tort Law. Judicial Remedies Extra-Judicial Remedies 5 Judicial Remedies Damages Injunction Specific Restitution of Property 6  Extra-judicial Remedies On the other hand, if the injured party takes the law into their hand, the remedies are called extra- judicial remedies. There are five main types: Expulsion of trespasser Re-entry on land Re-caption of goods Abatement (eg: remove the object causing a nuisance) Distress Damage Feasant (eg: owner of the property to take possession of the beasts until he is compensated for the loss suffered by him. 7  Damages Damages, or legal damages is the amount of money paid to the aggrieved party to bring them back to the position in which they were, before the tort had occurred. “Damages” is one of the remedies in a cause of action for torts. 8 Damages 1. Ganti rugi menghina / contemptous damages 2. Ganti rugi nominal / nominal damages 3. Ganti rugi meruncing / aggravated damages 4. Ganti rugi tauladan / exemplary damages 9  1. GANTI RUGI MENGHINA / CONTEMPTOUS DAMAGES Contemptuous damages are also called ignominious damages. The amount of money awarded by the court, in this case, is very low, as to show the court’s disapproval, that is when the plaintiff himself is at some fault and cannot wholly be said to be ‘aggrieved’. This compensation is given when the court thinks that the plaintiff does have the right to sue the defendant but the suit does not actually have any merit. This type of damages is usually awarded in defamation cases where the court admits that the plaintiff has proven his case, however, the case should not have been brought to court. Example: the defendant says that the plaintiff likes to lure men through her seductive voice and style. Contemptuous damages can be seen in Reynolds v Times Newspapers 3 WLR 862 - the first two courts awarded the claimant 1 penny of damages (and the third ultimately found for the defendants). It should be noted that the issue of costs can mean the defendants still have to pay more than the single penny, but at the same time a court that believes a claim to be frivolous is likely to be equally harsh on the claimant when making their costs decision.  2. GANTI RUGI NOMINAL / NOMINAL DAMAGES The compensation awarded is a recognition by the court that the plaintiff’s rights have been violated. This compensation is usually given when the plaintiff has not suffered any injury or damage as a result of the defendant's actions such as in the case of trespassing on land that does not involve any damage. The amount of damages is only small. Heuston & Buckley on Salmond and Heuston on the Law of Tort (Book): “So, if a man gives another a cuff on the ear, though it costs him nothing,….., yet he shall have his action, for it is a personal injury. So, a man shall have an action against another for riding over his ground, though it did him no damage: for it is an invasion of his property and another has no right to come there”. Constantine v Imperial Hotels Ltd (1944) KB 693 - Court: the defendant committed a breach of duty as innkeeper because the defendant’s refusal to provide accommodation to the plaintiff was considered inappropriate. The plaintiff was awarded damages of 5 guineas (+RM2). GANTI RUGI NOMINAL / NOMINAL DAMAGES Guan Soon Tin Mining Co v Wong Fook Kum 1 MLJ 199 - The defendant is liable even if the plaintiff has not suffered any damage. Tay Tuan Kiat v Pritam Singh 1 MLJ 276 - Thean J: On the Q of damages, there is no evidence that the plaintiffs have suffered any damage or loss as a result of the trespass…I therefore award to the plaintiffs only nominal damages in a sum of RM500.  GUAN SOON TIN MINING CO v WONG FOOK KUM 1 MLJ 199 Defendan bertanggungan walaupun plaintif tidak mengalami apa-apa kerosakan. 13  TAY TUAN KIAT v PRITAM SINGH 1 MLJ 276 Thean J : On the Q of damages, there is no evidence that the plaintiffs have suffered any damage or loss as a result of the trespass…I therefore award to the plaintiffs only nominal damages in a sum of RM500. 14  3. GANTI RUGI MERUNCING / AGGRAVATED DAMAGES (keterukan) This compensation is awarded when the court finds that the plaintiff suffered not only physical injury or financial loss such as loss of job, loss of contract but the plaintiff also felt shame, emotional pain as a result of the defendant's actions. In awarding this compensation, the court will take into account the defendant’s actions and intentions. Much awarded in defamation cases. These damages are awarded in addition to general damages. M.G.G Pillai v Tan Sri Dato' Vincent Tan Chee Yioun - The Court of Appeal has awarded damages amounting to RM10 million to the respondent/plaintiff. Gopal Sri Ram HMR: Damage to a person’s reputation, compared to physical injury, may cause him just as much, if not more, harm. As such, this Court must record its strong disapproval of any judicial policy that tends towards giving small damages for defamation. And no one, especially a journalist, should be relieved to think that a person's reputation can be arbitrarily damaged for the sake of only paying a few thousand ringgit in damages. The time has come for this Court to send a strong and clear signal that defamation is not a cheap act. 4. GANTI RUGI TAULADAN / EXEMPLARY DAMAGES These are the highest in amount. Punitive damages are awarded when the defendant has excessively been ignorant of the plaintiff’s rights and great damage has been caused to the defendant. The objective here is to create a public example and make people cautious of not repeating something similar. The purpose of damages is awarded not only to compensate the plaintiff but also to punish the defendant. This compensation is given in situations where the defendant is aware of the wrong done without regard to the rights of another person.  Ganti rugi tauladan / exemplary damages Rookes v Barnard (1964) AC 1129 - Lord Devlin: Exemplary damages can be awarded in three categories as follows: (i) Oppressive, arbitrary, unconstitutional actions done by servants of the government. “…in the case of the government it is different, for the servants of the government are also the servants of the people and the use of their power must always be subordinate to their duty of service”. (ii) The defendant’s act has been done ‘with guilty knowledge, for the motive to the chances of economic advantage outweigh or exceed the chance of economic or perhaps physical penalty’. -apabila perbuatan defendan membawa keuntungan kewangan kepadanya melebihi daripada pampasan yang akan dibayar kepada plaintiff. (iii) Statute allowed. Apabila statut membenarkan pemberian ganti rugi tauladan. Quantum Petroleum (M) Sdn Bhd & Anor v Manimaran Periasamy & Ors - The court may exercise its discretion to award aggravated damages in defamation cases as explained in Sistem Televisyen Malaysia, at pg 33, as follows: “In most defamation cases, aggravated damages are often claimed together with exemplary damages. But then it is not the same and must be differentiated from the punitive purpose of exemplary damages; in that aggravated damages is still compensatory in nature. Thus, the court awarded the aggravated damages (ganti rugi meruncing) based on the following facts: The Plaintiffs did not plead in this case that the Counterclaimants had stolen the 1st Plaintiff’s “technology” and yet, the 2nd Plaintiff testified regarding such an averment during his cross-examination; (2) the publication of the Defamatory Imputations was moved by the 2nd Plaintiff’s hatred for the 1st Defendant; etc. Two (2) Categories General Special Damages Damages 18 A. General Damages (Ganti rugi Am) Damages assumed (presumed) by law as a result of tort. Unliquidated amount. Eg: pain and suffering; loss of future income; loss of earning capacity. B. Special Damages (Ganti rugi Khusus/Khas) Damage or loss not assumed by law as a result of tort. The plaintiff needs to give notice in the pleading that he is claiming special damages. Can be assessed in financial form (liquidated). Need to present a bill or receipt. Eg: hospital bills; loss of income until the hearing date, repair or replacement of lost or damaged goods/property. Injunction Injunction is an equitable remedy available in torts, granted at the discretion of the court. An equitable remedy is one in which the court, instead of compensating the aggrieved party, asks the other party to perform his part of the promises. So, when a court asks a person to not continue to do something, or to do something positive so as to recover the damage of the aggrieved party, the court is granting an injunction. A very simple example is that of a court ordering a company of builders to build on a land near a hospital, for the construction sounds may be creating a nuisance to the hospital. In Malaysia, the power of the court to issue injunctions is outlined within the Specific Relief Act of 1950.  Types of injunctions There are various injunctions, depending on their length, command (whether they ask a person to do or not do an act), and nature (whether they are special or not). Some of the types of injunctions are as follows: Interim injunction: An interim injunction is a temporary order of the court directing a party to do any act or abstain from those acts. The purpose of an interim injunction is to secure quick relief from the court, pending a fuller inquiry into the situation. As a result, only one party usually asks for an interim injunction in the absence of another (on an ex parte basis) and only when the need is urgent. Interlocutory injunction: Interlocutory injunctions aim to preserve the status quo in a lawsuit by ordering a party to do something or stop doing something pending the end of the matter. A party that requests an interlocutory injunction must give the other party a chance to respond to their allegations. Permanent injunction: The court orders a permanent injunction as part of its judgment after deciding a case. The injunction orders a person or entity to carry out an act or desist from those acts in perpetuity (forever) or until a named period. Mandatory injunction: Injunctions of this nature compel an action. The court issues them when a party wants another to do something that they believe will cause them harm or loss if it doesn’t get done. Eg: to compel to move the wall or fence etc. Prohibitory injunction: These are the opposite of mandatory injunctions. The court issues them to command a party to stop doing acts, usually to arrest continuing harm to the applicant. For instance, if the police wrongly detained you, a prohibitory injunction can stop the police from ever detaining you again over the same issue. Eg: the defendants’ crane regularly trespassed. Mareva injunction: This is one of the special injunctions. A party may ask for a Mareva injunction when they believe the defendant wants to preempt the court’s decision and frustrate any potential order by moving their assets out of jurisdiction. The order stops the defendant from transferring or selling assets until the case is concluded and the applicant can enforce judgment. Anton Piller injunction: Anton Piller injunctions are also special injunctions. They apply where an applicant alleges that someone has violated their right and remains in possession of the evidence. The injunction gives the applicant power to enter any premises under the defendant's control and seize any related evidence or infringing material there, then bring it before the court.  Injunction But remember that injunctions are not granted by courts for any cause at all. Courts need to adhere to strict rules when evaluating and accepting applications for injunctions. In general, for an application to be accepted, you have to demonstrate that: There are serious issues to be tried The matter before the court is urgent (in cases of interim injunctions) Damages alone are not a sufficient remedy The balance of convenience lies in favour of granting an injunction You undertake to pay damages if the court finds that your application is frivolous Based on the above matter and the stringent rules, you must approach applications for injunctions with care and only request them in deserving circumstances. If you are unsure when and how to ask for an injunction, an experienced Malaysia trial lawyer can help. Source: https://www.akmylaw.com/services/ Mandatory Injunctions Redland Bricks Ltd v Morris AC 652 Syarat-syarat pemberian tegahan mandatori (mandatory injunction): Kemungkinan besar yang plaintif akan alami adalah kerosakan yang serius Ganti rugi sahaja tidak mencukupi Perbuatan defendan adalah tidak munasabah Perintah tegahan mestilah menyatakan dengan jelas apa yang defendan perlu lakukan. Redland Bricks Ltd v Morris AC 652 The claimants (Morris) and defendants (Redland Bricks) were neighbouring landowners. The defendants ran a quarry, and their activities caused subsidence in the claimants’ land, which was used for market gardening. It was predicted that this subsidence would continue, making the claimant’s land unsuitable for gardening. The trial judge granted a mandatory injunction against the defendants, ordering them to take action to remedy the subsidence problem. The defendant then appealed this injunction. The court allowed the appeal against the injunction - the cost of dealing with the subsidence was £35,000, and part of the claimant’s land that required protection was only worth £1500. Damages were applied instead. The court identified four criteria which should be satisfied before a mandatory injunction would be granted. 24 Mandatory Injunctions TAY TUAN KIAT v PRITAM SINGH 1 MLJ 276 Plaintif meminta agar mahkamah memberikan tegahan mandatori (mandatory injunction) supaya defendan meruntuhkan dan memindahkan tembok penahan dan membina tembok yang baru dalam kawasan defendan Held : Mahkamah mengarahkan defendan agar memindahkan pagar chain-link yang terletak di atas tembok penahan dan membinanya di sepanjang sempadan bersama tanpa memasuki kawasan plainitif. Defendan juga perlu mengalihkan struktur yang termasuk dalam kawasan plaintif. 25  Prohibitory Injunctions Prohibitory injunctions are useful to prevent interference with a claimant’s rights: so an order that a newspaper cannot publish confidential information or one that states that a building site cannot operate at night, for the benefit of local residents. The tendency is to grant an injunction where there is a good chance of the tortious behaviour being repeated. Thus, in Wollerton and Wilson Ltd v Costain Ltd 1 WLR 411, the defendants’ crane regularly trespassed onto the claimant’s land. There was little actual harm, and so an award of damages would be so low that the defendant could pay them and then carry on with their trespass behaviour. Instead, an injunction was used to prevent the behaviour from reoccurring. The courts won’t always grant an injunction if the tortious behaviour is trivial, or if the defendant is not at fault. This can be seen in Armstrong v Sheppard and Short Ltd. Armstrong v Sheppard and Short Ltd 1 QB 384, the defendant came to the claimant and asked his permission to build a sewer and manhole cover at the rear of the claimant’s property. The claimant thought the land belonged to the defendant, and granted permission. When he discovered that he actually owned the land, he came to the court for an injunction prohibiting the trespass onto his land, despite it causing no inconvenience to him. The court rejected the application for an injunction. The interference was trivial (useless), and the claimant had effectively consented to the trespass, meaning that the defendant could not be described as being at fault. 26  Further Injunction Subtypes Injunctions can also be divided up into three groups, depending on when a tortious event is likely to occur: quia timet injunctions, final injunctions and interim injunctions. Quia timet (‘because he fears’) injunctions are used when the claimant fears a tortious action will occur, but it has not yet taken place. They are often seen in situations in which the tortious action will do irredeemable damage if it occurs, such as defamation and privacy cases (once the information is out there, the genie cannot be put back into the bottle.) The prerequisites which must be fulfilled before they are granted were also mentioned in Redland Bricks: there must be evidence that the defendant is intending to take an act; that act must be one which will cause significant irreparable damage to the claimant; and there must be evidence that the defendant will not desist unless a quia timet injunction is granted. Final injunctions are simply those which are granted after a tort has been committed, but where it is likely that the tort will reoccur. This might be an order to stop holding noisy warehouse parties, or an order to stop a series of threating phone-calls. Interim (or interlocutory) injunctions apply whilst the tortious activity is ongoing (or else where there is a high chance of it reoccurring in the near future). They are used primarily as a means of stopping a defendant from acting in a certain way whilst the matter is resolved by the courts, especially where the behaviour would we highly detrimental if it were allowed to go ahead (see privacy, defamation). By definition, they are temporary. Their use is particularly restrained, since they are essentially a remedy which is applied before a case has been properly heard. The criteria for an interim injunction are found in American Cyanamid v Ethicon. 27 American Cyanamid v Ethicon AC 396 American Cyanamid claimed that this surgical suture was in breach of their patent. At the first instance, American Cyanamid was granted an interim injunction against Ethicon, preventing Ethicon from using the type of surgical suture at issue until the trial of the patent infringement. Both the claimant and defendant companies manufactured surgical sutures. The claimants alleged that the defendants were breaching a patent that they held, and thus came to the court for an interim injunction whilst the patent dispute was resolved. The court laid down a two-part test to be met before an interim injunction could be granted. [i] The first part of the test involved the claimant showing that the issue at hand was serious enough to warrant an interim injunction - so interim injunctions will not be granted in trivial (useless) situations. [ii] The second part of the test involves the claimant demonstrating that, on the ‘balance of convenience’, it would essentially be more sensible for the court to grant the interim injunction. The claimant will be arguing that the damage they will incur whilst waiting for the proper trial to be completed cannot be easily remedied with damages if their case is successful. The defendant will be arguing that this is not the case, and that the court shouldn’t risk applying an injunction to the behaviour of a possibly innocent party. If the court regards both sides’ arguments as being balanced, they will opt in favour of the status quo (i.e. the defendant will be able to carry on). 28 Specific Restitution of Property The third judicial remedy available in the Law of Torts is that of Specific Restitution of Property. Restitution means restoration of goods back to the owner of the goods. When a person is wrongfully dispossessed of his property or goods, he is entitled to the restoration of his property. 29  Extra-Judicial Remedies When a person can lawfully avoid or remedy himself without the intervention of courts, the remedies are called extra-judicial remedies. In this, the parties take the law in their own hands. Some examples are: 1. EXPULSION OF TRESPASSER A person can use a reasonable amount of force to expel a trespasser from his property. The two requirements are: The person should be entitled to immediate possession of his property. The force used by the owner should be reasonable according to the circumstances. Illustration: A trespasses into B’s property. B has the right to use reasonable force to remove him from his property and re-enter himself. 2. RE-ENTRY ON LAND The owner of a property can remove the trespasser and re-enter his property, again by using a reasonable amount of force only. 3. RE-CAPTION OF GOODS The owner of goods is entitled to recapture his/her goods from any person whose unlawful possession they are in. Re-caption of goods is different from specific restitution in that it is an extra-judicial remedy, in which the person need not ask the court for assistance, instead, takes the law in his own hands. Illustration: If A wrongfully acquires the possession of B’s goods, B is entitled to use reasonable force to get them back from A. 4. ABATEMENT In case of nuisance, be it private or public, a person (the injured party) is entitled to remove the object causing nuisance. Illustration: A and B are neighbours. Branches of a tree growing on A’s plot enter B’s apartment from over the wall. After giving due notice to A, B can himself cut or remove the branches if they’re causing him a nuisance. 5. DISTRESS DAMAGE FEASANT Where a person’s cattle/other beasts move to another’s property and spoil his crops, the owner of the property is entitled to take possession of the beasts until he is compensated for the loss suffered by him. Conclusion In torts, the object behind remedying a party is to take the aggrieved party back to the status or position that they were enjoying before the occurrence of tort. It is not to punish the defendant, as in crime. Remedies can be judicial and extrajudicial. When due process of law is required for a party to gain remedy, and the courts are involved, the remedies are called judicial remedies. When the law is taken into his/her own hands by the parties, they are called extra-judicial remedies.  Tutorial on Remedy Questions (Tort II) 1. What do you understand about remedy? 2. Why remedy is so important? 3. Explain “injunction” as a remedy. 4. Discuss the case of Tay Tuan Kiat v Pritam Singh 1 MLJ 276. 5. Discuss nominal damages, contemptuous damages, aggravated damages, and exemplary damages. 6. Discuss the case of Quantum Petroleum (M) Sdn Bhd & Anor v Manimaran Periasamy & Ors MLJU 72. 7. Please discuss the current cases relating to remedy. Thank You.