Contract Law II Assignment on NON-PECUNIARY LOSS in Malaysia

1. TITLE : NON –
PECUNIARY LOSS
MEMBER :
KIOW SHENG FATT T7
LIM KWANG CHING T7
EUGENE KHOO YEAN SHERN T11
SUBJECT :
UNL 1622 – CONTRACT
LAW II

2. DEFINITION and PURPOSE
According to Duhaime’s Law Dictionary, it is a
type of damage which cannot be valued by
monetary and cannot be quantified.
The purpose to allow non-pecuniary loss is to
allow the claimant to obtain satisfaction for
the lost that being suffered and although
awarded in the form of monetary and
provide a solace for the claimants and to
make their life bearable.

3. ISSUE that often arise…
What amounted to appropriate damages
to be awarded and to compensate the
claimant ?
Answer :
It is difficult to verify whether the claims
are genuine. Unlike the pecuniary loss, it
can be calculated accurately based on the
documentary evidence which can be
produced by the claimant.

4. 1. POSITION of non-pecuniary loss under
Malaysia and Common Law
In Malaysia, damages mostly involve breach of
contract. However, Contract Act 1950 is silent as
to the damages regarding non-pecuniary loss.
Common Law Principles are applicable in cases
involve non-pecuniary loss in Malaysia.
Lord Steyn in the case of Farley v Skinner say
that award for non-pecuniary loss should be
specified and logical development is needed in
order to measure the awards for such loss.
HOWEVER, it can still be compensated as in the
case of Summer v Salford Corp

5. 2. TYPES of non-pecuniary loss
It has been proven that inconvenience can
actually causes loss despite the courts often
reluctant to grant damages to non-pecuniary
loss claim.
Hobbs and Wife v The London and South
Western Railway Company
Plaintiff claims against the defendant railway
company for wrongly set them down at
wrong station which caused the family to
walk five miles home in the drizzling rain
which caused them inconveniences.
A. PHYSICAL INCONVENIENCE AND
DISCOMFORT

6. B. INJURYTO FEELINGSAND MENTAL
DISTRESS
PREVIOUSLY……
Addis v Gramophone Co Ltd
The court held that generally no damages will
be awarded for injured feeling. The decision
then applies by the court in the case of CCA
Holdings Ltd v Palm Resort Bhd. The plaintiffs
claim against the defendants for wrongful
termination which plaintiffs alleged in
consequence they suffered loss of reputation
and goodwill. The court held that the
damages are irrevocable for loss of
credibility and reputation under the common
law and that the facts of the case does not fall
within the exception

7. NOW……
The court subsequently showed inclination,
injury to feelings and mental distress are
consider as exceptional circumstances. In order
for the damages to be awarded, firstly such
contract entered is to provide enjoyment and
secondly such contract is aimed to prevent
further distress.
In the case of Heywood v Wellers, the court
allowed the plaintiff claims against the
defendant-solicitor as the main aim of the
contract entered is to protect plaintiff from
further annoyance and distress which the
defendant failed when the case being bungled
and prolonged.

8. 3. DEVELOPMENT in awarding
damages
i) Qualification.
Mustapha v Culligan of Canada Ltd, the Court of
Appeal and was held that the psychological injuries
must be reasonable foreseeable. Mental injury must be
proven that it occurred in an ordinary person and
reasonable fortitude.
ii) Amount of compensation
H West & Son Ltd v Shephard, the court held that the
compensation for non-pecuniary loss should be unified
and consistent. Thus the court has finally recognized
the upper limit of it as $100,000 on 1978. However, the
maximum threshold of the amount of compensation is
set at five times of the average annual industrials
earning at last.

9. iii) In Malaysia
In the case of Tan Sri Norian Mai & Ors v Chua
Tian Chang & Ors, the Court of Appeal affirmed
the claim however, reduced the quantum of
damages. The respondents in this case were
arrested by the police and detained for more
than 40 days. Then the respondents claimed that
their detention amount to false imprisonment.
The Court of Appeal do not allow the award and
refer to the case of Penguasa Tempat Tahanan
Perlindungan Kamunting, Taiping & Ors v Badrul
Zaman PS Md Zakariah, the court held that
damages cannot be access based on the period
of the detention but take into consideration the
reason behind of the detention.

10. CONCLUSION
Generally courts are not keen to award
damages for the claim of non-pecuniary loss as
it is clear that to determine the whether the
claim is of genuine or not is difficult due to the
question of facts. The loss in a particular set of
facts may not be a loss in another set of facts.
Besides that, as there will be no documentary
evidence to determine as to the appropriate
amount to be awarded by court and is it solely
on the discretion of the judge. To a judge this
amount may be considered appropriate but to
another judge the amount might be too high or
too low. Again it is very subjective.