From the Blog

Not Bigging Up a Claim

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We had a client with a tortious claim for negligence against a government department because they messed up his marriage from which he had children. The incident had a potentially lasting adverse societal impact on all of them. He was very angry and upset about the situation. He was stoked as well because the government agency had treated him in a cowardly and callous manner.

‘I want them to pay for what they have done, Encik Fahri. It is disgraceful how they have treated us. They messed up our marriage. Then they did not even have the courtesy of dealing with me professionally. Worse, they rudely dismissed my complaint and refused to pick up my calls after that.’

‘I can understand your frustration with them. A claim for damages would certainly accompany your claim for negligence against them.’

‘How much can we claim?’

‘First, you need to understand there are two kinds of damages. Special damages and general damages. Special damages are the actual costs and expenses you incurred arising from their carelessness. General damages are what the court awards you as compensation for the pain, suffering and embarrassment you suffered. Special damages are what you can prove. We need receipts and proof for that. General damages are what the court decides based on the facts of the case. It is not a mathematical exercise.’

‘Second, when we talk about damages, we are talking about general damages. How much can you get? For me? At best, maybe a few hundred thousand, if the judge is generous. But going by their usual conservatism, we are looking at the low end of that. Even with claims of physical injury by government authorities, the courts tend to be restrained in their award of damages. What we can achieve in this claim is the moral victory and the outcome that they are held responsible for their carelessness.’

‘I understand but I want them to feel the pain and humiliation that my family and I feel about what happened to us. They need to be taught a lesson. The only way for a government agency to feel that is by a high award of damages. Then they will start to ask questions. That’s the only language they know. If the award is only a few hundred thousand ringgit, they will not feel it. We are not somebody, Encik Fahri. We are nobody. To them, we are like a bug on their skin that they can flick off. What is a few hundred thousand to a government agency? These government departments cannot be allowed to ruin people’s lives without being responsible. Can we put a claim for RM 50 million against them? They need to be taught a lesson. If they see that we are claiming RM 50 million, they will take us seriously. It will make them scared.’

‘Ah. That. Honestly, I don’t think we can make out a claim of RM 50 million. There’s no way we can justify it.’

‘I know. I know. But we just put a figure that will scare them.’

‘I hear you. But there are two things you need to understand. Firstly, our procedural laws prohibit us from putting such amounts in our claims. We are not supposed to put a figure to it. General damages are the court’s discretion.’

‘Ha? But I see people doing that all the time. Altantuya’s family sued the government for RM 100 million. Putting a big amount will make them take us seriously.’

‘Yes. I know. Just because it was done does not make it right. That brings me to my second point. You know, for seasoned litigators, we are not impressed when someone puts a ridiculous amount as their claim. I have gone up against ‘big’ claims like these before. Usually, from what I have encountered, the bigger a claim is made out to be, the smaller it really is. I am amused by big claims for general damages. I am not scared. Putting a big amount for general damages is purely for dramatic effect. Nothing else. Putting a big amount does not necessarily mean they will take the case seriously.

‘And what happens if we cannot prove a situation that commands RM 50 million in damages? How would we look? How can we expect the court to treat us seriously when we are so unreasonable and disproportionate in our assessment of our claim? How embarrassing would it be if say we are awarded RM 300,000 or RM 100,000 out of a claim for RM 50 million? And what if the court punishes us with costs because we made our claim to be bigger than it really was?’

‘For myself, it is best we follow procedure and leave that for the court to decide. We can build a case for it but I don’t think putting RM 50 million as a claim for general damages is going to convince or scare anybody. General damages are to compensate you for pain and suffering. It is not meant to be a lottery win. Also, it is not our practice to put a sum for general damages. We prefer to keep close to the procedural rules and not introduce any issues that will distract from the claim.’

‘So we will not make a claim for RM 50 million?’

‘No. We will make an unquantified claim for general damages and leave that for the court to decide. We will certainly give greater thought to what facts or cases we can find to persuade the court to award higher damages given these facts. We understand your concern and we know where we need to focus our efforts. But ultimately, you need to understand that general damages are at the court’s discretion and that the courts are generally conservative when it comes to awarding damages; especially against a government department. So a high award of damages is going to be an uphill battle yah.’