In March this year, there is a Tik Tok video posted by a Malaysia teacher that went viral where her students kept repeating the catchphrase “EMOTIONAL DAAAAAAAMAGE” (yes, the students deliberately elongated the word ‘damage’ that’s why it is so funny and gain the attraction of the audiences on social media) during her lesson
In light of that video, I believe that one question that may have come across our mind is: “Can I claim for my emotional damage?”
Generally, anyone who suffers losses, be it pecuniary or non-pecuniary losses (monetary or non-monetary losses), is entitled to claim monetary compensation (legally known as damages) for loss or injury caused by the wrongful act of another.
TYPES OF DAMAGES
The next question to be answered is: “Which damages should we claim for emotional damage?” Overall, there are two types of damages available, ie. general and special damages.
The distinction between the two damages can be seen in HALSBURY’S Laws of England (Fifth Edition 2019) (Volume 29: Damages) at page 186:-
“The distinction between the two terms is also drawn in connection with the different types of loss. Here, general damages are those losses, usually but not exclusively non-pecuniary, which are not capable of precise quantification in monetary terms; whereas special damages, in this context, are those losses which can be calculated in financial terms … in personal injury cases it is common for parties to use ‘general damages’ to refer only to the assessment of damages for pain and suffering and loss of amenity.”
Emotional damage relating to one’s feelings is a non-pecuniary loss and clearly cannot be measured through monetary terms. Hence, emotional damage is claimable under general damages which is to be assessed by the Court.
HOW DOES THE COURT ASSESS AND AWARD GENERAL DAMAGES?
Assessing general damages for emotional damage is definitely not in a purely mathematical way, especially since one’s feelings are difficult to equate with money, it depends on the sound discretion of a judge. According to decided cases, general damages as to emotional damage have been awarded by the Court in both cases involving breach of contract and tort.
An Example of Breach of Contract Case
In Subramaniam A/L Paramasivam & Ors V Malaysian Airlines System Bhd [2002] 1 MLJ 45 the High Court referred to McGregor in his work Damages (1997 Ed) in paras 92 and 99, which was later summarised by Bingham LJ in the Court of Appeal case of Watts & Anor v Morrow [1991] 1 WLR 1421 at p 1445:-
“A contract breaker is not in general liable for any distress, frustration, anxiety, displeasure, vexation, tension or aggravation which his breach of contract may cause to the innocent party. … But the rule is not absolute. Where the very object of a contract is to provide pleasure, relaxation, peace of mind or freedom from molestation, damages will be awarded if the fruit of the contract is not provided if the contrary result is procured instead.”
In essence, the general rule is that the Court in breach of contract cases is reluctant to grant general damages for emotional damage unless the core purpose of the contract entered into by parties is for providing pleasure, relaxation, peace of mind, or freedom from molestation, then the emotional damage will be able to be compensated.
In Subramaniam’s case, the plaintiffs flew on the defendant’s plane from Madras into Kuala Lumpur. Upon arrival at the Subang International Airport, the plaintiffs were asked by the defendant’s officers to have their baggage reweighed. Due to this incident, the plaintiffs spent about two hours in the airport.
The Court acknowledged that it would be quite legitimate to assume that if the defendant in the contract of carriage, chose to re-weigh the plaintiffs’ baggage at the Subang International Airport is in breach of its contract with the plaintiffs – general damages may be awarded for non-pecuniary loss.
However, the Court opined that awarding plaintiffs on the grounds of mental distress, agony, humiliation, loss of reputation and injured feelings is too remote (in other words, too far fetched). Eventually, the High Court only granted general damages of RM300 for each plaintiff for the discomfort and inconvenience they suffered from being detained in the airport for two hours. This is because if not for that incident, they would have arrived home two hours earlier.
An Example of a Tort Case
In Mohd Ridzwan bin Abdul Razak v Asmah bt Hj Mohd Nor [2016] 4 MLJ 282, involving sexual harassment in the workplace, the Federal Court on the basis of tort of sexual harassment affirmed the High Court’s decision for awarding RM100,000.00 as general damages to the respondent in view of the appellant’s (the superior’s) conduct heavily tainted with sexual elements such as continuously making obscene verbal remarks towards the respondent. In addition, the Federal Court also took into account the psychiatrist’s report that the respondent displayed symptoms of emotional distress, annoyance, and mental depression due to the alarm, fear, and anxiety.
In short, one’s emotional damage can be claimed through general damages and the amount is for the Court to decide.
Nevertheless, general damages on emotional damage are less to be seen in breach of contract cases as compared to tort cases.
This is because parties to a contract are generally only obliged to fulfill their contractual obligations which are commercially concerned and to hold them liable for one’s feelings and emotions will be a bit far off.
Unless the contracts are meant for enjoyment, pleasure, and mental satisfaction, a person will not likely to succeed in claiming general damages as to emotional damage.
On top of that, when claiming general damages due to emotional damage, one must always remember that:-
- The Court is not a place for you to earn (you will only get compensation for the loss you have suffered, and not more than that)
- Damages sought must be adequately proven to the Court, especially when you are claiming emotional damage (bring all your evidence, ie. psychiatric report).
Disclaimer: This article is for informational purposes only and does not constitute any legal advice. If you have any questions, please contact us directly.
