FACULTY OF LAW

TRI 2, 2015/2016
UNL1622 CONTRACT LAW II

GROUP ASSIGNMENT
TITLE: __Non Pecuniary Loss____
No.
1
2

ID
11513029
56
11513019
49

Name (in CAPITAL LETTER)

Signatur
e

Group

YAP WAI SHUAN

VEERANESH BABU A/L
KUMARESAN

T1

3
4
5
Date Submitted: 22nd December 2015
Lecturer: Prof. Dr. Abdul Mohaimin b Noordin Ayus
Declaration:
This is our own work. We have not previously submitted this work, in whole or
in part, for assessment. This work complies with all the governing legal and
ethical rules, including those concerning plagiarism and copyright. We have not
plagiarized and have also acknowledged ALL sources which are not our own
and have not merely cut and paste. We have retained a copy of this
assignment.
Each of us has contributed roughly equally to this assignment. If there are any
complaints about non-contribution then we will abide by the Lecturers decision
regarding the allocation of marks for the assignment.
Comments:

Marks (/20):

Assessment rubrics
N
o
1
2
3
4
5
6

Items

Marks

Introduction
Discussion on the related issues
Opinion/Criticism/Recommendation
Conclusion
Case and Journal
Online Presentation
Total
(100/5)

Receive
d

10
35
25
10
10
10
100

Holistic Rubrics
Score
17-20%

13-16%

9-12%

5-8%

Description
Demonstrate complete understanding of the problem.
Original contribution
All requirements are included.
Well organized with proper formatting.
All references are properly quoted and referred.

Demonstrate sufficient understanding of the problem

Original contribution
All requirements are included.
Well organised with proper formatting.
All references are properly quoted and referred.
5.
Demonstrate partial understanding of the problem.
6.
Some original contributions
Most requirements are included.
Unorganised and without proper formatting.
References are not properly quoted and referred.
Demonstrate little understanding of the problem

0-4%

No evidence of original contribution

Many requirements are not included.
Unorganised and without proper formatting.
References are not properly quoted and referred.

Misunderstood the problem.

No evidence of original contribution
Significant requirements are not included.
Unorganised and without proper formatting.
References are not properly quoted and referred.

CONTENTS

1.0 Introduction
2.0 Define Non-Pecuniary Loss
2.1 The Special Nature of Non-Pecuniary Loss
2.2 Physical Inconvenience and Discomfort
2.3 Injury to Feelings and Mental Distress
3.0 Opinion on the Non-Pecuniary Loss
4.0 Conclusion
5.0 Bibliography

6.0

Appendix
6.1 Case : Saleh v Nebel [2015]
6.2 Non-Pecuniary Loss Journal Article

1.0 Introduction
Damages is the ulmost frequently declared remedy premited by Court in cases of
breach of contract. It granted the legal right to the innocent parties to claim for a remedy
for every breach of contract cases, no matters the nature of the breach is genuine or not.
Damages may be categorized in two prime or major aspects. Essentially would be the
principles of assessment of damages, and further, the type of losses and damages. For
the objective of this assignment, we will be only discussing and focusing on the second
aspect which is the damages which is the type of losses.
Loss arising from a breach of contract can be overall divided into two part which is
pecuniary and non-pecuniary loss. All financial and material loss uninterrupted regards to a
breach is considered as pecuniary loss. Hence, loss of gainings, loss of profits,
expenditure of repairs and reinstatement would categorized under this section. Besides
that, non-pecuniary loss is not considered as economic or financial in nature. For
examples would be loss experienced like physical pain, injury to feelings and mental
distress.
Even the damages protect and defence both the assumption, intention and reliance
interests, the main objective is to protect and defence the parties intention and interest.
This means that the presentation of damages is to put the parties in the position,so he or
she may have been in had the contract been conducted as per the parties intention ar
expectation. This may includes a claim for loss of profit, that is, monetary gains which the

parties would have such intention to achieve or obtain if the contract had been fully
conducted by the opposite parties.

2.0 Non pecuniary loss

Non pecuniary losses can be define and identify as losses which are deteriorate or
go through by damaging goods or interests which have in themselves with no economic
value or value on a financial market. The examples are damage to goods with a chiefly
affectionate and sentimental value, such as an wedding albums, pain and suffering as a
result of physical injury, damage to personal reputation, or even the death of a person.
Regards to the inside information that these goods or interests have no serious or direct
market value, non pecuniary losses are frequently define as losses that unable to be
undone with money.1

Pecuniary damages are basically determine on the basis of computed or estimated

losses for goods such as the parties expected or prospective loss of gainings and incomes
and expenditure for future care, along with other expenses. In diversity, non-pecuniary
damages unable to arithmetically estimated because they refund and satisfy the parties for
obscured losses issuing from physical and psychological or mentally pain and suffering
along from any loss of convenienced or assumption of life. the factor of non- pecuniary
damages certainly overlap and merge or combine at the boundary and in practice,
preparing it appropriate to arrive at a composite award for all non-pecuniary losses. These
damages are alleged and putative to compensate the claimant for having to maturity and
practice symptoms caused by the accident, having a loss of expectation of life, etc.

Non-pecuniary damages, generally define as general damages, are referred to as

non-pecuniary because they include an approximate evaluation of the total amount is
applicable or proper compensate for loss of amusement of life, and are therefore not as
pecuniary damages which can be more accurately calculated:
The sheer fact is that there is no objective yardstick for translating non-pecuniary
losses, such as pain and suffering and loss of amenities, into monetary terms. 2
1
W.V.Horton Rogers, Damages for Non-Pecuniary Loss in a Comparative Prespective, December 6 2011
2 Andrew v. Grand & Toy Alberta Ltd [1978] 2 S.C.R. 229 at 261

2.1 The special nature of non-pecuniary loss

It goes without saying that non-pecuniary loss cannot be properly described without
submitting pecuniary loss to a careful examination. This distinction is considered to be
most important in the assessment of damages, since the method of computing damages
either objective calculation or subjective estimation varies for both according to the
nature of damage. The presumption is that non-pecuniary loss begins where pecuniary
damage ends. Sometimes other terms are used for the category of loss in question;
examples include non-patrimonial loss, non-material loss, immaterial loss or mental
distress. One of the scholar suggested that intangible loss to be a more correct and
accurate description than non-pecuniary loss. Moreover, the most widespread term of nonpecuniary loss shall be used for the purpose of this work.
In general terms, damage is defined as any loss that somebody suffered with
respect to his legally protected rights, goods and interests, or in broader terms, damage is
any negative modification in the injured partys legally protected sphere. The definition of
damage can vary in different legal systems. It has been stated that contract law knows no
general limitations as to types of loss or damage. 3
Instead of defining non-pecuniary loss, it is easier to define the opposite first ie
pecuniary loss. Afterwards, we can simply conclude that all other losses must be nonpecuniary. To be classified as pecuniary, the loss has to be concerned with a persons
wealth, whether money this includes loss of profit or future earnings intangible property
such as shares or copyrights, or tangible property such as land and goods. In principle,
loss to somebodys wealth can be determined by comparing the quantity before with the
quantity after the event that caused the damage.
2.2 Physical inconvenience and discomfort
Cases which included physical inconvenience and discomfort there will be a award
for damages for the parties and the award have been legally granted by the court. The
Court have the authorities to grant the awards for damages suffered by the innocent
parties or his family (victim's family).
This statement was proven in the case of Hobbs and Wife v The London and South
3 Vernon V. Palmer, The Recovery of Non -Pecuniary Loss in European Contract Law, July 2, 2015

Western Railway Company.4 Where the court held that the awards for damages was
granted due to the physical inconvenience suffred by the plaintiff and his family hereby
called the hobb's family, whom were set down in the railway company belongs to the
defendant. They was at the wrong station late at night and they had to walk five miles
home in the rain. The court considered that the plaintiff had suffered in physicallly.
The same principles was applied and executed in the case of Watts & Anor v
Morrow.5 In this case, the court held that any distress, frustration, anxiety, displeasure,
vexation, tension or aggravation caused by a breach is irrecoverable. The fact of the case
was The defendant measurer or surveyor appealed an award for damages after his
inattentive and careless of survey of a property. The plaintiff sought damages for distress,
and the total amount of making good the defects. The appellant argued that he should pay
or only the alleviation and decline in value of the house by reason of the existence of those
defects.
As per the statement of the damages on physical inconvenience and discomfort, we
can conclude that the court will legally grant the awards for any cases which are fall under
this particular ground.
2.3 Injury to feelings and mental distress
When a person is involved or get injured they will be designate to different kinds of
damages from the court. The first principle for this non-pecuniary loss for injury is basically
damages for personal pain and suffering, or what the courts call non-pecuniary damages
because they are not damages directly connected to a financial loss, but for personal pain
and suffering. It might be physical injury pain or mentally injury pain.
There are several sense and logic why people ambiance the necessary to file a
personal injury claim. It might be the person whom file the claim have been permanently
disabled, or maybe the person unable to work since the injury occur. Maybe the person or
his family members faces important medical expenses as a result of an injury.

If the person win the case, the amount of money the person are granted to receive
4 (1874-75) LR 10 QB 111
5 [1991] 1 WLR 1421 at 1445, CA

for compensation depends on the reason behind the injury. The person can be granted to
get compensation for non-pecuniary losses, the total sum of which is decided by the court
on the case.

As to conclude, in the case of Jarvis v Swans Tours Ltd6 is the landmark case
where awards had been granted by Court for damages on disappointed expectation in a
contract. In this case, the plaintiff had checked a 15 days winter sports holiday in
Switzerland conducted by the defendants. In the brochure printed by the defendants' travel
agent which described that the holiday as a house party and promised some activities.
However, the plaintiff had disappointment on the activities. The Court of Appeal held that
the awards was granted on damages to the plaintiff. Lord Denning determined that the
plaintiff in his contract on such travel with defendants did not merely contract for the travel
facilities, broad and lodging but also to have a enjoyment to himself hereby called the
plaintiif on the travel.

3.0 Opinions
Damages to recompense injured reputation and mental distress is recognized in
Malaysia. The remedies are given. Whats your opinion? Should the law give remedies?
Proved with case law.
In my opinion , remedies given for non-pecuniary loss is reasonable in Malaysia.
Malaysia should give remedies to non-pecuniary loss. I have several reasons to support
my basis.
Initially in Common Law, the customary position is that physical inconvenience and
mental distress damages are not recoverable. Somehow eventually the Common Law has
make some changes by gave remedies to non-pecuniary loss. In Malaysia, we follow the
doctrine and judicial precedent in Common Law in non-pecuniary matters. Non-pecuniary
losses is recoverable if they are within the contemplation of the parties to the contract as
not unlikely result from breach. Thereby , if as a result of breach of contract, the victim
suffered from pain, loss of amenities and expectation of life, these kind of losses are
recoverable.
6 [1973] QB 233, CA

Firstly, it is because the victim they deserved to claim legal justification from
damages that they faced. The judiciary need to provide an appropriate relief. The person
who having physical inconvenience due to the negligence of fault of one party deserved to
claim legal justification from damages that they faced. In another way, If a person or party
make us feel discomfort because of their irresponsibility we can take legal action on them.
In Common law the court allow the plaintiff to claim damages from defendant for causing
physical inconvenience to others.

In Hobbs and Wife v London and South Western

Railway Co7, the plaintiffs successfully recover for their physical inconvenience when a
railway company was in breach of contract. In this case, the defendant failed to send or
service the plaintiff to the destination that plaintiff wanted to go. As a result, the court held
that the plaintiff could claim back the price of the ticket and the price for the inconvenience
and physical discomfort of causing the plaintiff to walk home. The Court have made
distinguishes between cases of mere inconvenience and real physical inconvenience.
Secondly, everyone must be given the freedom from mental distress in a contract
that they entered to. In a situation that , if any contract the purpose of the contract was to
provide enjoyment, freedom from distress, for example (in cruises or holidays), the
particular promisor should responsible for it . Emotional distress can be treat as
psychological impact on your behaviour or daily life . Distress caused by impairment of the
enjoyment of life, a person deserved claim for compensation for the upset, distress or
anxiety that caused by the party in the contract they entered into particularly for promise
that are made. In Malaysia, there are two judicial precedence that can proved we are
defending someone who is suffered from mental distress from a breach contract. First in
the case of Abdul Karim v T & R United(Spore) Pte Ltd 8, the defendants did not fulfil to
their contractual obligation in a tour package offered to plaintiff. As a result, the plaintiff
was granted damages for disappointment and discomfort that he suffered from breach of
contract.

In the second case, case of James Yu v Raffles Hotel Ltd 9, the court also

awarded the plaintiff damages for mental distress and disappointment due to defendant
failure to prepare sufficient food for plaintiffs wedding reception. Because of defendants
breach , the plaintiff suffered serious embarrassment.
Thirdly, it is because that everyone has the right to safeguard or protect their own
7 (1875) LR10QB 111; [1874-80] All ER Rep 458.
8 [1987] Butterworths Law Digest para 949.
9 [1988] Butterworths Law Digest para 1182.

reputation.

If someones reputation was ruined, this might affect them physically and

emotionally. A bad reputation will leads public to lost their trust or credibility on you.
Especially for high profile person like Politician, Ambassador, Mayor and so on. In the
case of Subramaniam a/l Paranasivan & 2 Ors v Malaysian Airline System Bhd 1011, The
first, second, third plaintiff flew from Madras to Kuala Lumpur with the defendant airline.
When plaintiffs arrived in Kuala Lumpur, the defendants officer insisted that the plaintiffs
luggage must be reweighed and unlawfully imposed additional fee on plaintiffs. Plaintiffs
take legal action on defendant on the basis that they suffered from humiliation, physical
inconvenience and mental distress. Because of defendanrts act on reweighing and
unlawfully impose excess baggage charges upon plaintiffs and lead plaintiffs to suffer from
non-pecuniary loss. Thus, the court granted damages of RM300

to plaintiffs for the

discomfort and inconvenience caused by defendant.

Although Malaysia given remedies on non-pecuniary loss, somehow the Malaysias
Contract law Act 1950 also made some precaution and safeguard to avoid the abuse of
non-pecuniary loss rule by the public. So that the existing non-pecuniary loss rule will not
be stretch and manipulate. If the consideration about non-pecuniary loss in respect of the
obligation that was breached in a contract was unreasonable or if there was no
consideration at all, then the court may not grant the plaintiff for damages . So we can see
that actually judiciary in Malaysia is justice enough.
Malaysia court has applied the judicial precedent of Addis v Gramophone Co Ltd
12

(about damages will not be awarded for injured feelings) in the case of CCA Holdings Ltd

v Palm Resort Bhd13. In this case, Plaintiffs were managers at the defendants club under
technical assistance and managerial agreement. Eventually, the defendants terminated
the contract made between them on ground that the club does not earning any profits as
stated and require in the agreement between plaintiffs and defendants. The plaintiffs claim
that because of the termination, they have suffered serious loss of reputation and goodwill.
This will affect their future career as i manager of prestigious club internationally . The
court adopted Addiss decision that damages are irretrievable for loss of credibility and
reputation under common law.
In conclusion, Malaysia did give legal remedies for non-pecuniary loss matter. In
Malaysia, we protected victim of facing physical inconvenience or mental distress or
10 [2002] 1 MLJ 45; [2002] 1 AMR 254; [2002] 1 CLJ 230
11 [1996] 3 MLJ 64
12 [1909] AC 488, 78 LJKB 1122
13 [1998] 4 MLJ 143

reputation degradation from a breached contract. Remedies given in non-pecuniary matter,

also uphold the justice of judiciary in Malaysia. However, judiciary in Malaysia did not fully
give remedies on all matters of non-pecuniary loss matter, it will be depends on the
reasonable and legal proof from either party. The terms relating to non-pecuniary loss also
quite vague, it depends on the strong proof and wisdom of the judge.

4.0 Conclusion
In conclusion, based on the analysis of case law and fact finding, we can have a
clear view that Malaysia did give remedies to damages regarding physical inconvenience,
mental distress and reputation injured (pecuniary loss). Based on few judicial precedent in
Malaysia, example case of Abdul Karim v T & R United (Spore) Pte Ltd, James Yu v
Raffles Hotel Ltd, Subramaniam a/l Paramasivam and some other cases, we can know
that actually Malaysia has followed the judicial precedence from Common Law cases in
the judgment of most non-pecuniary damages cases. Non pecuniary damages can be said
as damages which are not readily quantified or valued in money, such as proposed
compensation for pain and suffering (referring to Duhaimes law dictionary). In fact, the
valuation of non-pecuniary losses is subjective and therefore difficult. Therefore,
sometimes it can be a difficult task for a judge to evaluate and value the accuracy of nonpecuniary losses. In Malaysia contract law, we should have some provision that
emphasise on the focal meaning of non-pecuniary losses or not it might sometimes give us
a vague meaning. Hope that judiciary in Malaysia will continue uphold the equity and
justice in every legal matter. So that can bring Malaysia to a better future with peace and
harmony.

5.0 Bibliography

1. <https://www.lexisnexis.com.proxyvlib.mmu.edu.my/> accessed 2015

2. <http://vlib.mmu.edu.my/library/law-library.php> accessed 2015
3. Non Pecuniary Losses (Contract) (Uni Study Guides)
<http://www.unistudyguides.com/wiki/non_pecuniary_losses_(contract)> accessed
August 2015
4. Pecuniary And Non Pecuniary Damages For Personal Injury Claims - Personal
Injury Lawyer (Personal Injury Lawyer2009)
<http://www.epersonalinjury.ca/blog/pecuniary-and-non-pecuniary-damages-forpersonal-injury-claims/> accessed 2015
5. Types Of Damages Available for Breach of Contract (Types of Damages Available
for Breach of Contract) <http://www.legalmatch.com/law-library/article/types-ofdamages-available-for-breach-of-contract.html> accessed November 2015
6. Vernon V. Palmer, The Recovery of Non -Pecuniary Loss in European Contract
Law, July 2, 2015
7. W.V.Horton Rogers, Damages for Non-Pecuniary Loss in a Comparative
Prespective, December 6 2011
8. Cheong May Fong, Contract Law in Malaysia, Sweet & Maxwell Asia, April 1, 2010

6.0 APPENDIX