Damages are a key feature of Malaysia’s civil justice system. Their purpose is to provide financial compensation to individuals or entities harmed by the wrongful actions of others. The courts in Malaysia recognise three main types of damages: general damages, aggravated damages, and exemplary damages. Each category serves a distinct purpose. General damages compensate for the fundamental losses a person suffers. Aggravated damages address additional suffering caused by wrongful or insulting conduct. Exemplary damages are awarded to punish particularly bad behaviour and to discourage similar conduct in the future.
Understanding General Damages
General damages cover losses that are difficult to measure precisely. These include physical pain, emotional suffering, loss of enjoyment of life, and reduced ability to earn income. Such damages arise naturally from the wrongful act but are not easily quantifiable like medical bills or repair costs. Unlike “special damages,” which must be specifically proven and itemised, general damages are awarded at the court’s discretion after reviewing evidence such as medical records and witness testimony.
Explaining Aggravated Damages
Aggravated damages apply when the defendant’s actions not only cause injury but also worsen the suffering by inflicting humiliation, insult, or additional emotional distress. These damages recognise that the manner in which the injury was caused can deepen the harm experienced. However, it is pertinent to note that the Court of Appeal in Bukit Tinggi Hospital Sdn Bhd & Anor v Navin Sharma a/l Karam Chand & Anor [2025] MLJU 3236 held that aggravated damages require a living claimant who has suffered worsened emotional injury due to the defendant’s conduct. Therefore, when the person dies, the claim dies with them. The estate cannot claim aggravated damages for conduct that may cause distress to those near and dear to the deceased.
Courts take into consideration the entire sequence of events, including the defendant’s attitude and behaviour during the case. In assessing damages, the High Court in Tan Sri Muhammad Shafee Abdullah v Malaysian Bar [2025] MLJU 2196 awarded aggravated damages to acknowledge the emotional and reputational harm caused by the Bar’s unlawful conduct. The court held that while the disregard of proper procedure may not amount to malice, it reflects a knowing disregard for procedural safeguards intended to protect the rights of advocates and solicitors. Therefore, the Court found that such conduct warranted a limited award of aggravated damages in the sum of RM20,000.00.
Purpose and Application of Exemplary Damages
Exemplary damages, also called punitive damages, differ from the other types because their main goal is not to compensate but to punish the wrongdoer and deter future misconduct. These damages reflect society’s condemnation of serious wrongful acts, especially those involving malice, recklessness, or oppression. In the High Court case of Indran a/l Karuppiah & Anor v RHB Bank Bhd & Ors [2023] MLJU 2703, the court awarded RM200,000.00 to signify its disapproval, condemnation, and denunciation of the bank’s oppressive conduct over the Plaintiff.
The Malaysian judiciary follows the English case of Rookes v Barnard (1964), which restricts exemplary damages to certain circumstances such as oppressive government actions or wrongful acts intended to achieve excessive profit. The Court of Appeal in Sambaga Valli a/p KR Ponnusamy v Datuk Bandar Kuala Lumpur & Ors [2018] 1 MLJ 784 highlighted that exemplary damages may be awarded where the defendant has acted with vindictiveness or malice, or with a “contumelious disregard” for the plaintiff’s rights. The primary purpose of an exemplary damages award may be deterrent, punitive, or retributive, and it may also play an important role in vindicating the plaintiff’s rights.
Regarding the principle for determining quantum, the principle of moderation was emphasised in John v MGN Ltd [1997] QB 586, where the court stated that the amount of exemplary damages should be the minimum necessary to meet the public purpose of the award. The three guideposts used to assess whether punitive damages are excessive, as established by the US Supreme Court in BMW of North America, Inc v Gore (1996) 116 SCt 1589, are:
- the degree of reprehensibility of the defendant’s conduct;
- the disparity between the harm to the plaintiff and the damages awarded; and
- the difference between the exemplary damages imposed and civil penalties in comparable cases.
Proving exemplary damages requires clear and convincing evidence of intentional or reckless misconduct, a higher standard than ordinary negligence. While rare, exemplary damages play an essential role in upholding justice and promoting accountability.
The Differences between the three types of damages
The three categories of damages also differ in how they must be claimed in court. General damages do not require exact numerical proof and cover natural consequences of the wrong. Aggravated damages must be claimed separately and supported with evidence showing conduct by the defendant that caused aggravated harm to the plaintiff. Exemplary damages require distinct pleading and proof of egregious conduct warranting punishment.
It is also important to note that some statutes limit the types of damages that can be claimed. For example, under Section 7 of the Civil Law Act 1956, damages for loss of support by dependants are restricted to compensatory damages only, excluding exemplary damages, as confirmed in the Federal Court case of Ketua Polis Negara & Ors v Nurasmira Maulat bt Jaafar & Ors [2018] 3 MLJ 184.
Conclusion
Understanding the distinctions between general, aggravated, and exemplary damages is essential for individuals, legal practitioners, and the public when navigating Malaysia’s civil justice system. General damages aim to restore a victim to their original position, aggravated damages recognise circumstances where the conduct of the wrongdoer worsens the harm suffered, and exemplary damages serve the exceptional purpose of punishing serious misconduct and deterring future wrongdoing.
This article was contributed and sponsored by Kevin Wu & Associates, a full-service law firm based in Kuala Lumpur with practice areas in corporate, dispute resolution, criminal, family office and company secretarial services. KWA offers preliminary consultation and legal advisory to all Temasek Post readers.
Radhia is a contributor covering legal insights with the aim of keeping legal discourse relevant, accessible, and impactful in today’s changing world. More about Radhia.
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