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TORT 1 TEST ON REMEDIES

The two principal remedies available to the victim of a tort are damages to compensate for the harm he
has suffered and, where appropriate, an injunction to prevent future harm. Damages are the predominant
remedy. Certain forms of self-help, such as abatement of a nuisance or self-defence, can be regarded as
remedies, but the courts do not encourage this. In Livingstone v Rawyards Coal Co.1, it has been
stated that the fundamental principle applied to the assessment of an award of damages is that the
claimant should be fully compensated for his loss. He is entitled to be restored to the position that he
would have been in, had the tort not been committed, insofar as this can be done by the payment of
money.
On behalf of Karim, Karims wife can make claims for personal injury. Under this, there are two types of
claim can be made by his wife which are the claim for the pecuniary losses and claim for non-pecuniary
losses. For pecuniary losses, the claim could be for loss of future earnings. Any expected expense as a
result of the injury such as medical and nursing bills and domestic help are also recoverable. Funeral
expenses are also recoverable. For losses that are non-pecuniary in nature, the claim could be for the
injury itself, pain and suffering, and loss of amenity or enjoyment of life. Interest and inflation are taken
into account in determining the amount of compensation awarded. In Liong Theo v Sawiyah & Ors,2 it
was held that awards tended to increase in value in recent years because of the fall in the value of
money. An enhanced cost of living should be given proper weight in assessment of quantum of damages.
The award has to be a comparable amount in current monetary value. In Shearman v Folland, 3 it can be
seen that if the claimant has to live in a special institution, such as a nursing home, or receive attendance
at home he is entitled to the cost of that, provided that it is reasonably necessary.
Therefore, Karims wife can made claims on pecuniary loss on the basis that she has suffered for loss of
future earnings, as a result of his husbands death, where Karim would have received the salary of RM
1,000 per month had the tort did not happened. The claim for non-pecuniary loss can also be claimed as
the family of Karim has suffered for loss of amenity or enjoyment of life.
The people of the village can make claims for damage to property. The federal government is liable for all
the damage or loss to the villagers property as a result to the federal governments tort. Interest and
inflation are also taken into account in computing the amount awarded to the villagers. If the damage is
caused to real property, restitutio in integrum is achieved by the application of one or the other of two
different measures. One measure is to take the capital value of the property in the undamaged state and

1 (1880) 5 App Cas 25, 39


2 [1982] 1 MLJ 286
3 [1950] 2 KB 43

to compare it with its value in a damaged state. This is the diminution in value assestment. The other is
to take the cost of repair or reinstatement. The diminution in value assessment applies where the plaintiff
intends to sell the property and the reinstatement assessment applies where he intends to occupy the
premises. In the case of Milik Perusahaan Sdn Bhd v Kembang Masyur Sdn Bhd,4 it was stated that
there is no rule that the diminution in value principle must be considered first before the reinstatement
method.
In the case of Munelly v Calcon,5 the principle has been laid down by the court that the appropriate test
to use is the reasonableness of the plaintiffs desire to reinstate the property and this is judged by the
advantages that will be achieved by the plaintiff of the reinstatement in relation to the extra cost to the
defendant in having to pay damages for reinstatement rather than damages calculated by the diminution
in the value of the land. In the case of Liew Choi Hung v Shah Alam Properties Sdn Bhd 6 it was stated
that the diminution in value principle is appropriate when the owner intends to occupy the premises. In the
case of Sin Heap-Lee Marubeni v Yip Shou Shan,7 it was mentioned that assessing damages based on
the capital value of the land in its undamaged state and comparing it with its value in the damaged state
was held to be an inaccurate measure of damages and so the reinstatement would be the fairer method
to adopt. Ultimately the object of the damage is to put the villagers in the same position as he would have
been in had the tort not occurred and that damages awarded are to be reasonable as between the
villagers on the one hand and the federal government, on the other.
Another claim that can be made is for the pure economic loss. Pure economic loss is recoverable subject
to some requirements. In in the case of Steven Phoa Cheng Loon & 72 Ors v Highland Properties
Sdn Bhd & 9 Ors8 it can be seen that the loss must be caused by a negligent misstatement and if the
loss is caused by the defendants negligent act, recovery is possible provided it is forseeable.
An injunction is the order by the court which has the effect of either prohibiting the defendant from
repeating or continuing his act or it may be an order requesting the defendant to do something positive.
As an injunction is an additional remedy granted at the discretion of the court, it is usually not granted
where monetary compensation is adequate or where the plaintiff only suffers a slight damage or where

4 [2003] 1 MLJ 6
5 [1978] IR 387
6 [1997] 3 AMR 2145
7 [2005] 1 MLJ 515, CA
8 [2000] 3 AMR 3567

the injury to the plaintiff is only temporary or where the plaintiffs himself consents or allows is right to be
encroached upon. It was discussed in the case of Hotel Continental Sdn Bhd v Cheong Fatt Tze

Mansion Sdn Bhd9 that injunctions are normally granted for the torts of nuisance. In some other cases,
injunctions are granted for repeated or continuing trespass to land and in special circumstances to
prevent the publication of defamatory matter. In the case of Tenaga Nasional Bhd v Dolomite Industrial
Park Sdn Bhd10 it was illustrated that public interest is taken into account in the grant of an injunction.
There are two types of injunction, namely prohibitory injunction and mandatory injunction. A prohibitory
injunction is an order of the court requiring the defendant to cease committing a continuing tort, such as a
continuing nuisance or trespass, or restraining the repetition of tortious conduct where it is likely to be
repeated. It is negative in nature, in that requires the defendant not to do something or to cease doing
something. A mandatory injunction, on the other hand, requires the defendant to undertake some positive
act, such as removing an obstruction that he has caused to the claimant's right of way. The House of
Lords in the case of Morris v Redland Bricks Ltd11 stated that a mandatory injunction will not be granted
unless the plaintiff shows there is a very strong probability that grave damage will be incurred by the
plaintiff if the injunction is not granted and that damages will not be sufficient nor adequate remedy if such
damage does occur. In the case of Terra Damansara v Nandex Development,12 mandatory is justifiable
where the defendant has acted without regard to his neighbors rights such as a claim that a deliberate
trespass to the plaintiffs land would not cause any harm to the plaintiff or diminish his enjoyment of it
whereas it would cause the risk of substantial loss to property if the injunction were to be ordered onto the
defendant.
In the case of Morris v Redland Bricks, the defendant did some digging work on his land and the
plaintiffs land caved in. the court awarded damages to the plaintiff and issued a mandatory injunction to
the defendants to restrain them from interfering with the support of the plaintiffs land and to direct them to
take all necessary steps to restore support to the plaintiffs land within six months. Restoring support
would require the defendant to fill up the plaintiffs land so as to prevent the land from caving in any
further. The cost to fill up the plaintiffs land was 35,000 whereas the value of the land was only about

9 [2002] 3 AMR 3405, CA


10 [2000] 1 AMR 1187, CA
11 [1970] AC 652, HL
12 [2006] 6 MLJ 24

12,000. The defendants appealed against the injunction and the court allowed the appeal and the
mandatory injunction was withdrawn. The court stated that a mandatory injunction would only be granted
when damages are inadequate or if the defendant acted carelessly and or his own interest.

Therefore, the villagers may apply for mandatory injunction as the federal government has ignored the
petition to stop the construction and should be responsible for the loss that has been incurred to the
villagers.