XXXX v XXXX

Case Significance

Restates the principle from Tan Sri Khoo Teck Puat v Plenitude Holdings that an appellate court will not disturb a reassessment of damages absent a wrong principle or an entirely erroneous figure, and upholds awards for loss of use and aggravated damages in a negligence claim over property damage.

This Court of Appeal decision concerns the appellate approach to a reassessment of damages in a negligence claim arising from damage to a bungalow caused by demolition and construction works. The respondents' bungalow in Kuala Lumpur had been damaged in 2009 by works carried out on the neighbouring property, and they had sued their neighbours together with the architect, contractor and consulting engineer engaged for those works. The appeal was brought by the consulting engineer alone against a decision of the High Court in a reassessment-of-damages exercise, in which the judge had awarded the respondents RM2,171,570.00 for loss of rental and loss of use of the bungalow, RM1,171,012.00 for repair and rectification, and RM300,000.00 in aggravated and exemplary damages, while declining certain other heads of claim. The Court set out the governing principle, drawn from the Federal Court in Tan Sri Khoo Teck Puat v Plenitude Holdings Sdn Bhd, that an appellate court should not interfere with an award of damages unless the court below acted on a wrong principle of law or the amount was so high or so low as to be an entirely erroneous estimate. A particular question was whether damages for loss of use of the property were special damages that had to be specifically pleaded or general damages, and whether the awards of aggravated and exemplary damages were justified. The Court found that the respondents had given early warnings of the damage that went unheeded and that there had been a contumelious disregard of their rights, which supported the award of aggravated and exemplary damages. Concluding that the High Court had not acted on any wrong principle and that the awards were not so excessive as to warrant intervention, it unanimously dismissed the appeal with costs and affirmed the awards. The judgment is a useful statement of the limited scope for appellate interference with a reassessment of damages, and of the treatment of loss-of-use and aggravated damages in a negligence claim.