1.

INTRODUCTION
Remedies define as a cure1 and as a redress for a wrong. Different

remedies are available to give right to different wrongs suffered by a

plaintiff, which these remedies may be used alone or together with other
remedies.2 Remedies functions to redress a wrong inflicted to plaintiff by
granting the compensation, specific relief to compel performance and to
prevent wrongful acts and restitution.
2.0 JUDICIAL REMEDIES
There are two classifications of remedies which have been classified
under two main heads, namely judicial remedies and extra-judicial
remedies. The principal of judicial remedies are those for which the injured
party must go to a court of justice in the forms to apply the damages or
the injunction or specific restitution of property. 3 Whereas the extra-judicial
remedies is where the parties may take action in the presence of the tort
i.e where those available without the parties coming to the court4 which
would otherwise be unlawful, but it is limited in the circumstances of false
imprisonment, assault, to expel any trespasser5 and abatement of the
nuisance.
2.1DAMAGES

1 The Concise Oxford English Dictionary, 2002. Oxford: Oxford University

Press.10th Ed.
2 Cheong May Fong. 2007. Civil Remedies in Malaysia. Malaysia: Sweet & Maxwell Asia.
p.1.

3 R.L Anand & L.S.Sastri`s. 1990. Law of Torts. India: The Law Book Company (P). 5th Ed.
p.373.

4 Cheong May Fong. 2007. Civil Remedies in Malaysia. p.2.

5 RR Sethu. 1993. DEMISE OF SELF-HELP AS A REMEDY. Vol 11 MLJA 25.
LexisNexis Asia : The Malayan Law Journal Articles. p. 3.
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Damages are one of the legal remedy. It defines as something that you had been
suffered and the court will grants you an award for these damages. In order to claim for
damages, plaintiff must prove that a tort has occurred and suffered damage. 6 Usually, the
claimant is seeking compensation for personal injuries or damage to property, which arise out
of accidents. 7
Plaintiff needs to prove loss and damage for recover the damages. He does not have to
consider the amount of his loss but it is sufficient to prove its existence. However, it has a
limitation for the damages to be award, such as pure economic loss in negligence. In the case
of Junior books Ltd v Veitchi & Co Ltd8, courts held that the pure economic loss is not
recover. Besides, in the cases of negligence, pure economic loss cannot be recovered as
happened in the case of D & F Estates Ltd v Church Commissioners 9, where it was held that
damage which is deemed to be pure economic loss is damage at the earliest view of damage
property. Furthermore, the exception is the pure economic loss that cause from negligent
misstatement and negligence specialized advice.10
Thus, it can be concluded that the economic loss can also be recoverable. The example cases
of damage for economic loss is misrepresentation, breach of contract, slander of goods and
title, breach of copyright, conversion and others.11
There are different types of damages that can be awarded in tort and it is applies as follows;
2.1.1General and special damages.

6 Norchaya Talib. 2010. Law of Torts in Malaysia. Selangor: Sweet & Maxwell Asia.
3rd Ed. p. 443.
7 Vivienne Harpwood. 2002. Principles of Tort Law. London &Sydney: Ravendish
Publishing Limited. 4th Ed. p. 409.
8 [1983] 1 AC 520
9 [1989] AC 177
10 n.a. n.d. Inns of Court School of Law. 2005. Remedies. New York: Oxford
Universities. p. 35.
11 ibid.
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General damages are considered as the consequence of a tort. Normally the amounts of
damages are not fixed, which mean there is possibility to change. The award for general
damages such as damages for pain, suffering, tort of liable and slander.
In the case of Ong Ah Long v Dr S Underwood, the court held that general damages are
simply compensation that will give the injured party reparation for the wrongful act and for all
the natural and direct consequences of the wrongful act so far as money can compensate.12
Meanwhile, special damages is not arise from the consequences of a tort. In claiming for
special damages, plaintiff must give full details and notice in his pleadings. Plaintiff also
needs to prove for damages like in the circumstances tort of negligence, nuisance, and slander.
The amount of damages is fixed or in another word is liquidated, which means that amount
already calculated. In the case of Rylands v Fletcher it was stated that special damages are
calculated from the date the tort occurred until the time the case is brought to court. 13 They
consist of liquidated damages or an amount which may be compute or determined financially.
2.1.2Contemptuous damages
Contemptuous damages are considered when court fells to award the damages towards
plaintiff when plaintiff do not have a good claim. It is normally happen when courts do not
support the plaintiff claims and the amount of awards will usually be the smallest. It is also
based on morally of the courts to award the damages when they consider that plaintiff
deserved the damages in liable, assault, trespass and false imprisonment.14
2.1.3Nominal damages
Nominal damages were granted when plaintiff do not suffered any loss or damages but
he can proves that defendant had committed tortious offences. It also happen when the
amount is not sufficient to prove but the damages had shown. Nominal damages are only
applied in tort of actionable per se, which is does not need to prove any damages.

12 (1983) 2 MLJ 324

13 (1868) LR 3 HL 330
14 Norchaya Talib. 2010. Law of Torts in Malaysia. p. 443
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The court in the case of Guan Soon Tin Mining Co v Wong Fook Kum stated that when
plaintiff having suffered any damage, liability of the defendant is established then plaintiff
only receive the nominal damages.15
The court will award nominal damages when the plaintiff has suffered no loss. However, the
awards need to be reasonable. The reason is for the court, so that can order the defendant pay
the plaintiffs court costs. In this case, usually claimant would get a very small amount of
money and to prove that he had won the case.
2.1.4Exemplary damages
Exemplary damages also known as punitive damages. It can be considered as damages
that the court will awards when there is unreasonable behaviour in the part of the defendant.
An award of exemplary damages would be recovered on the part of plaintiff. 16
This damage may be differentiating from aggravated damages. In this damage, the intention
of the courts is to give a lesson and punish the wrongdoer. Besides, it can deter others that
who might be do the same thing. The award will be double in the kind of the award
compensatory damage. In the case of Rookes v Barnard 1964 it was stated that damages of
this type have a limitation. It will only be awarded in specific cases and on exceptionally.17
Therefore, three classes of cases were considered. First, where there have been servants of the
government behave in an oppressive, arbitrary or unconstitutional way. Police misconduct and
racial discrimination fall into this category.
The second category is where the conduct of the defendant was calculated to make a profit in
the matters of compensation payable would be exceed. It not strictly in financial profit but
also includes other benefits.

15 (1969) 1 MLJ 100 at 103

16 Abdul Majid bin Nabi Baksh & Krishnan Arjunan. 2007. EXEMPLARY DAMAGES
FOR TORT AND BREACH OF CONTRACT IN SELECTED COMMON LAW
JURISDICTIONS. Vol 3. LexisNexis Asia : The Malayan Law Journal Articles. see
also; Cheong May Fong. 2007. Civil Remedies in Malaysia. p. 142.
17 (1964) AC 1129
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The third category is where the payment of exemplary damages had expressly permitted by
statutes, such as in s 17(3) of the Copyright Act 1956.
These three categories are strict and the only category that allow for expansion in the future is
second category. It is rarely awarded with the exemplary damages. It is may because to award
such damages would be take the function of the criminal law and to stray from the boundaries
of tort itself.
In the case of involving misconduct by police officer, the high award of exemplary damages is
possible to find such as in the case of George v The Metropolitan Commissioner of Police The
fact of the case is the claimant was the mother of a young woman. The police needed to
question the young women. Some officers forced their way into her house and searched it for
a long period. Furthermore, they kicked claimant and make a false statement to deceive the
court. She was awarded for trespass, assault and for exemplary damages, which is 6000 dollar
for trespass and assault and 2000 dollar for exemplary damages.18

2.1.5Aggravated damages
If the court wishes to express disapproval of the defendants behavior, the aggravated
damages can be awarded. The consequence is the claimant has suffered more than reasonably
be expected in the situation.19 It can be awarded in the case of malicious falsehood.
2.2INJUNCTION
Injunction is an order by the court enjoining a person to do or
continues to do an act or restraining the commission of some wrongful
omission.20 The injunction is an additional remedy where it may be obtain
if the damages alone is not sufficient remedy and normally apply or been
use in torts of nuisance. There are several classification of injunctions

18 Vivienne Harpwood. 2002. Principles of Tort Law. p. 414-415.

19 ibid.
20 R.L Anand & L.S.Sastri`s. 1990. Law of Torts. p.387.
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which

are

perpetual

and

interlocutory

injunction,

Mandatory

and

prohibitive injunction and Quia timet injunction.21

There are injunctions which granted either before trial or the end of the
trial. Perpetual or permanent injunctions granted by the court after the
termination of the trial when the rights of the parties have been
determined provide under section 51(2) Specific Relief Act. These
injunctions are final in nature. There are also cases where injustice may be
caused to the plaintiff if he has to await the trial of the case. Hence, by the
virtue of section 51(1) states that the court has authority to grant the
plaintiff with interlocutory injunction also known as temporary injunction
continue until a specific time or hearing of the case further order as was
held in the case of Nicholas & Ors v Gan Realty Sdn Bhd.22However, an
application for interlocutory injunction must first have the cause of
action.23
In the point of view of substance, the injunction may be classified into
mandatory and prohibitive injunctions. A prohibitive injunction granted by
the court which the defendant is forbidden to commit or continue the
commission a tort, while a mandatory injunction is where the defendant is
ordered to undo the mischief act that he had done. The next classification
of injunction is Quia timet injunction where an injunction is granted to
prevent a threatened.
Injunction may be sought or granted in respect of the trespass, nuisance,
infringement of copyright, or any publication of a defamatory matter.
Almost certainly an injunction is applicable for every tort except assault
and battery, false imprisonment and malicious prosecution.
2.3SPECIFIC RESTITUTION OF PROPERTY
21 ibid. p.388; Cheong May Fong. 2007. Civil Remedies in Malaysia. Malaysia:
Sweet & Maxwell Asia. p. 221
22 [1970] 2 MLJ 89
23 Sarkawi bin Sadijo v BMG Music(M) Sdn Bhd,[1996] 4 MLJ 515
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Specific restitution of property is falls under equitable remedies24 under judicial

remedies. Specific restitution of property will be granted in the situations which money would
be an insufficient relief in order to be just
The remedy of specific restitution of property is to recover the plaintiffs property before his
rights was violated. It normally involves of conversion which is an act of a person who use
the benefit of the property of the real owner and deprive the owners rights from enjoying the
property without the owners consent25 or trespass to land. It is under the courts power to
order for specific restitution of property. The court will order the wrongdoer to return the
property to the owner of the property if his property has been taken away by the wrongdoer
wrongly.26 Section 7 (1) of Specific Relief Act 1950 (Act 137) provides that a person entitled
to the possession of property and may recover it. 27 However, if the damages would be
sufficient and adequate remedy, the court will not order for specific restitution of property.
In the case of trespass to land in Martin v Porter, stated that if the defendant knew he had
trespassed onto the plaintiffs land and mined for coal, he is required to count and pay for the
full price of the coal once sold as he is a trespasser. 28 However, in the case of Livingstone v
Raywards Coal Co, the court stated that the defendant is innocently mined the coal on the
plaintiffs land, the plaintiffs only may recover the value of the coal under the ground instead
of the total value once the coal had been mined.29
According to Section 7 (2) of Specific Relief Act 1950 (Act 137), the person who entitled to
the possession of the property should not enforce his right to recover it when the property has

24 http://en.wikipedia.org/wiki/Restitution
25 Norchaya Talib. 2010. Law of Torts in Malaysia. p. 467.
26 http://www.boddunan.com/education/21-law-a-legal/1696-remedies-anddamages.html
27 Specific Relief Act 1950 (Act 137). s. 7(1)
28 (1839) 5 M & W 351, 151 ER 149
29(1880) LR 5 App Cas 25 (HL), see also; Robert Stevens. 2007. Torts and Rights.
United States:Oxford University Press Inc p.82.
[7]

been let under tenancy and the occupier still occupy the property even though the period of
the tenancy has been expired.30
In the case of Ministry of Defence v Ashman31, the officers in the armed services got a house
with lowest rent which is below of market value by The Ministry of Defence. The defendants
husband was a tenant and already died. The ministry claimed for mesne profits which is a
claim for profits that made by the defendant from the property as the defendant does not have
legal ownership32 on the house and the defendant refused to leave the house. Thus, the claim
represents the market value of the use of the property.33 Hoffman LJ said, a person entitled to
the land may claim for the remedy of specific restitution of property against the occupier who
occupies the property without his consent on two grounds. Firstly, for the loss suffered due to
the defendants trespass and secondly is the value of the benefit that had been received by the
occupier.34

3.0 EXTINCTION OF LIABILITY

When there is a possible liability for a tortious action, it may be
extinguished in any following ways e.g by death, limitation, waiver, accord
and satisfaction, judgment and voluntary termination. Some of these by
act of the parties, others by the operation of law.
The first way is by the death of the party. The general of common law
states that the death of one of the parties extinguished any existing cause
of action in tort by one against another i.e the deceased party will bring
together the cause of action and all the liabilities of that person. However,
30 Specific Relief Act 1950 (Act 137). s. 7(2)
31 [1993] 32 EGLR 102 (CA)
32 http://legal-dictionary.thefreedictionary.com/Mesne+profits
33 Robert Stevens. 2007. Torts and Rights. p.81.
34 Wan Azlan Ahmad & Mohsin Hingun. 1998. Principles of the Law of Tort in Malaysia.
Kuala Lumpur: Malayan Law Journal Sdn Bhd. p. 239.
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under section 8(1) of Law Reforms Act 1934 provides that the death of the
plaintiff or the defendant extinguishes his liability in the case of
defamation only while the other cause of action for the benefit of and
against the estate of the deaceased will remain survive to the legal
representatives of the deceased.35
The next extinction of liability is by the operation of law which is the
limitation. The principle of limitation is that by the lapse of time, then the
right to commence any action becomes no longer enforceable 36 i.e he will
loss his remedy if he fall asleep before or upon it on the basis that law will
not help inactive persons .37
Any action founded on tort shall be brought before the court within the
limitation period prescribed by law. Section 6(1)(a) of the Limitation Act
1953 provides that the general limitation period for the party to
commence his action in tort is six years. 38 However, in the situation where
the party being sued is the government of Malaysia, the abovementioned
period is not applies. It is limit to the period of three years fixed under
section 2(a) of the Public Authorities Protection Act 1948.
The question on where the limitation period is calculated in obtaining a
remedy in tort differs based on the requirement to prove the tortious
action itself. If the tort is actionable per se, the time runs from the date of
defendant`s act39, if the tort only on proof of damage, its runs from the
moment the victim of particular tort suffer damage as a result of tort being
35 C. David Baker. 1996. Tort. 6th Ed. London: Sweet & Maxwell. p.452, see also: Wan
Azlan Ahmad & Mohsin Hingun. 1998. Principles of the Law of Tort in Malaysia. p. 242

36 C. David Baker. p. 325.

37 W.V.H Rogers. 1981. Winfield & Jolowicz of Tort. 3rd Ed. London: Sweet & Maxwell. p.
647.

38 Robert Stevens. 2007. Torts and Rights. p. 241.

39 Nitrigan Eireann Teoranta v Inco Alloys [1992] 1 ER 854
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committed or inflicted upon him40 whereas in the continuing nature such

as nuisance, its calculated each time the tort inflicted.41
Waiver is the other form that may extinguish the tortious liability. 42 A man
may have more than one remedy under law which is open to him in
respect of the wrong action to him. However, the law allows his as an
election to pursue one of them with the condition that, once he selects one
remedy and leaves the others, he must stand or fall by his election. It
means that he is said; the election of one of the possible remedies waived
the other remedies.43 He is no longer permitted to pursue these remedies
which he had given up before.
This waiver only waived the right to recover remedies for tort and not the
whole of tort. Mere commencement of an action will not amount to waiver
other remedies.44 Not every tort can simply be waived such in the case of
default or defamation.
The cause of extinction of liability on the waiver basis can only applies in
conversion, trespass to landor good, deceit, some instances of action upon
the case and the action for extorting money by unlawful threats.
In some situation, any man who has a cause of action against another
person may agree with him to accept in substitution for his legal remedy
any consideration. If the plantiff and the defendant agree to settle the
liability by valuable consideration,the tort is discharged. The agreement is

40 Nicholas R. Mcbride & Roderick Bagshaw. 2005. Tort Law. London: Pearson Education .
Limited.2nd Ed. p. 9.

41 John Looke. 2005. Law of Tort. 7th Ed. London: Pearson Education Ltd Bhd. p.
443.
42 United Australia v Barclays Bank Ltd [1941] AC 1
43 R.L Anand & L.S.Sastri`s. 1990. Law of Torts. p. 439.
44 ibid. p.440.
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called an accord while the consideration is called satisfaction. Accord and

satisfaction is the other way that extinguishes liability.
The

original

right

of

action

is

extinguished

only

when

the

satisfaction(consideration) that has been agreed upon has been accepted

and performed by the other party. If any party breach the agreement or
does not fulfill the term of agreement, the party can claim for damages or
sue him upon it. However, in the situation where it can be shown that the
original cause of action is said to be discharged by the defendant`s
promise not by its performance, the cause of action will extinguished from
the date the promise was made.45
In the fifth situations, the liability will be extinguished by the judgment of
the court. If an action is brought before the court seeking redress for the
tort committed and the judgement is given by the judge,the liability for
that particular tort comes to an end. If the plantiff fails in this proceeding,
he cannot go in for another legal proceedings in the same court.

The last possible factors that discharged the liability is voluntary

termination where the plaintiff giving up or discharging of the right to take
an action against another person. In the case of Ford v Beech46stated that
an absolute covenant or agreement to abstain from suing is equivalent to
a release and accord which then can be a good defense to any action in
tort. However, in the other cases, Duck v Mayen47 it was held that the
agreement not to sue one of the joint tortfeasers will not function to
discharged the rest.
The different between this category with the accord and satisfaction
above in term of the agreement to discharge the liability, under voluntary
45 Clerk & Lindsell on Tort. 2003.. London: Sweet & Maxwell. 18th Ed. p. 1691.
46 (1848) 11 QB 852
47 (1982) 2 QB 511
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termination, there is no requirement of consideration while in accord and

satisfaction go otherwise. It must have a good consideration before the
party discharged his right.
This voluntary termination is effective whether it is given before or after
the initiation of an action made against the tortfeasor.48
4.0CONCLUSION
As for conclusion, a remedy in tort is given in order to seek compensation and to allow a
plaintiff to seek a legal right. It can be classified into two principles, which are extra judicial
remedies and judicial remedies. Judicial remedies may be classified into several types, which
are damages, injunction and specific restitution of property. All these liabilities can be
extinguished by the act of parties or by the operation of law. These remedies are only applied
as a remedy for a certain tortious liability.

BIBLIOGRAPHY
Books
Andrew Burrows. 1994. Remedies for Torts and Breach of Contract.
London: Sweet & Maxwell
Cheong May Fong. 2007. Civil Remedies in Malaysia. Malaysia: Sweet &
Maxwell Asia.

48 Wan Azlan Ahmad & Mohsin Hingun. 1998. Principles of the Law of Tort in
Malaysia. p.443.
[12]

Baker, C. 1996. Tort. London: Sweet & Maxwel. 3rd Ed.

C. David Baker. 1996. Tort. London: Sweet & Maxwell6th Ed.
n.a. 2003. Clerk & Lindsell on Tort. London: Sweet & Maxwell. 18th Ed.
n.a. n.d. Inns of Court School of Law. 2005. Remedies. New York: Oxford
Universities.

John Looke. 2005. Law of Tort. London: Pearson Education Ltd Bhd. 7th Ed.
Nicholas R. Mcbride & Roderick Bagshaw. 2005. Tort Law. London: Pearson
Education Ltd. 2nd Ed.
Norchaya Talib. 2010. Law of Torts in Malaysia. Selangor: Sweet & Maxwell
Asia. 3rd Ed.
Robert Stevens. 2007. Torts and Rights. United States:Oxford University Press Inc

R.L Anand & L.S.Sastri`s. 1990.

Law of Torts. India: The Law Book

Company (P) 5th Ed.

R.P Balkin & J L R Davis. 1991. Law of Torts. n.pl; n.pb
Vivienne Harpwood. 2002. Principles of Tort Law. London &Sydney: Ravendish
Publishing Limited 4th Ed.

W.V.H Rogers. 1981. Winfield & Jolowicz of Tort. London: Sweet & Maxwell.
3rd Ed
Wan Azlan Ahmad & Mohsin Hingun. 1998. Principles of the Law of Tort in
Malaysia. Kuala Lumpur: Malayan Law Journal Sdn Bhd.

Acts
Copyright Act 1956
[13]

Law Reforms Act 1934

Malaysia. 1953. Limitation Act 1953
Malaysia. 1948. Public Authorities Protection Act 1948.
Specific Relief Act 1950

Publication
The Concise Oxford English Dictionary, 2002. Oxford: Oxford University Press.10 th
Ed

Articles
Abdul Majid bin Nabi Baksh & Krishnan Arjunan. 2007. EXEMPLARY
DAMAGES FOR TORT AND BREACH OF CONTRACT IN SELECTED COMMON
LAW JURISDICTIONS.

Vol 3. LexisNexis Asia : The Malayan Law Journal

Articles
RR Sethu. 1993. DEMISE OF SELF-HELP AS A REMEDY. Vol 11 MLJA 25. LexisNexis
Asia : The Malayan Law Journal Articles

Online
http://en.wikipedia.org/wiki/Restitution
http://legal-dictionary.thefreedictionary.com/remedy
http://legal-dictionary.thefreedictionary.com/conversion

http://www.boddunan.com/education/21-law-a-legal/1696-remedies-and-damages.html

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