UNL1622CONTRACT LAW II

SPECIFIC DAMAGES

LECTURER: PROF. DR. ABDUL MOHAIMIN BIN NOORDIN AYUS

GROUP LEADER: SYAREFAH MARWAN BINTI ISMAIL 1151302687

MEMBERS : KHAIRUL NAQIB B. KHALID

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AHMAD FUAD BIN ZAILANI

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NAJIHAH BINTI NAZEER AHAMAD

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Introduction

• Damages is one of the remedy provided under the law of contract.

• Damages can be known as compensation or an awards.

• There are two types of damages which are:

1) General damages2) Special/Specific damages

General Damages&

Special/Specific Damages

What is General Damages?

Define by legal dictionary:- Monetary recovery in a lawsuit.

• Parties can obtain this type of damages due to suffer of injuries such as pain or inability to perform certain actions.

Eg: Ali cannot lift his child due to injuries in an accident.

• General damages cannot be convinced with a certificate.

• It also need not to be appealed as the law count on that such damage from the breach of a legal right.

Types of General Damagesi. Physical pain & sufferingii. Physical Disfigurementiii. Physical Disabilityiv. Mental Anguishv. Loss of Companionship

Element that may resolve a damage consists • Causing great horror of an injury• The sensitives of the legal body

Damages seems to be related to the personal injury cases

What is Special/Specific Damages?

- Produce ambiguity based on the jurisdiction in which it is appeal to

• It requires the precision of amount of loss & relevant evidence

• Also provide the defendant with notice of items in claim for a precise amount can be adduced by indication & each personal damages case will have a minor different when it related to special damages.

Categories of the Special/Specific Damagesi. Repair & replacement of damaged propertyii. Lost wages & the loss of earning capacityiii. Medical expenses (past or future)iv. Loss of irreplaceable

• Much easier & clearer than general damage• Precise amount of dollar has already been usedEg: A breaks a chair, the chair bought by B worth RM50. Therefore, A is liable for special damages of RM50.

• But, as for future cost or future loss due to injury, it will get a little complicated

• Settled through evidence or witnesses

Functions of General & Special/Specific Damages

• Compatible in TORT cases• Both terms been used in context of

liability• Construe the 1st & 2nd limb of principles

in case of Hadley v Baxendale

Nominal Damages

Nominal Damages

What is nominal damages ?• A kind of damages which reflects a

legal perception where there is a breach of duty or wrongdoing which violated the plaintiff’s right.

Nominal Damages

How to apply?• Brought to the court, and the court will

still hear the case and grant the plaintiff a nominal damages.

• Usually, it will be paid in terms of money.

Nominal Damages

Purpose ?• To allow the plaintiff to obtain punitive

damages.• Plaintiff’s constitutional rights has been

violated.• Plaintiff whose freedom of speech or

freedom of religion and others had been disregard.

Nominal DamagesIllustrations

• Plaintiff went out of the house to get something.• The defendant, which is his neighbor pretends to run over

him with his motor vehicle.• As for that, the plaintiff file a personal injury case based on

assault. • No actual damages that had been proven by the plaintiff. • Therefore, the court granted the plaintiff a nominal damages

to show that the plaintiff constitutional rights had been violated.

Nominal Damages

Cases referred to :• The Owners Of The Steamship “Medina” v

The Owners, Master And Crew Of The Lightship “Comet”

• Hilbourne v Tan Tiang Quee• Industrial & Agricultural Distribution Sdn

Bhd v Golden Sand Construction Sdn Bhd

Exemplary Damages

Exemplary Damages

• Exemplary damages can also be known as punitive damages.

• Given towards the party that went through suffered by the violent act of the defendant

• Aimed at compensating the loss suffered by the plaintiff, but it also can punish a defendant in exceptional situations.

• Example, when there is a breach of promise to marry (CASE: Dennis v Sennyah)

Exemplary Damages• Dennis v Sennyah The plaintiff and the defendant is engage but defendant

broke off the engagement and refuse to marry the plaintiff. The plaintiff felt humiliated, suffered mental torture and wasted expenses. She claimed for general damages and special damages. In this case the court held that, the court award $1500 as general damages and $620.10 as special damages. Hepworth J. stated that, “For breach of promise of marriage, the damages are not measured by any fixed standard and it is by the discretion of the court. It is not merely to repay the plaintiff for temporal loss but to punish the defendant in an exemplary manner.”

Exemplary Damages

• 3 categories where exemplary damages may be awarded:

• 1) There has been oppressive, arbitrary or unconstitutional conduct by the servants of the government.

• 2) The defendant’s conduct has been calculated as making a profit for himself which had exceed the compensation payable to the plaintiff.

• 3) When a statute has expressly authorized it.

Exemplary Damages

• Exemplary damages is to punish the one who breach the contract and to prevent them from do it again in the future as long as the innocent party can prove there is an oppressive conduct by the wrongdoer.

Exemplary Damages

Other cases:

• Rookes v Barnard• Cassel & Co Ltd v Broome• Dato’ Abdullah Hisham bin Haji Mohd

Hashim v Sharma Kumari Shukla (No.3)

Aggravated Damages

What is Aggravated Damages?

• Damages awarded by a court to reflect the exceptional harm done to a plaintiff of a tort action.

• In other words, aggravated damages is awarded when there is emotional or mental harm done when the other party to the contract breaches it.

Measure of Aggravated Damages?

• Jarvis v Swan Tours (1972)- By assessing the amount of mental or

psychological hurt caused by the other party.

• It has to be noted that the sum of aggravated damages is totally different from the normal damages received.

Benefit and Weakness of Aggravated Damages?

• Benefit -- Enables the trauma that was experienced by

the innocent party to be compensated.- Relatively easy to determine the presence of

mental or psychological hurt or anguish.• Weakness –- No exact way to calculate the amount of

damage sustained.- Has possibility of being inadequate.

Conclusion

• Different type of damages will be applied according to different type of injuries suffered by the innocent party. Therefore it is important for the court to determine which damages suit the most according to the loss suffered by the innocent party so that suitable damages will suit suitable condition of the innocent party.