Damages must be proven and not merely asserted; the burden of proof lies with the claimant, and the law does not require absolute certainty in quantifying damages.

JUDGMENT

(Assessment Of Damages)

Kenneth St James JC:

Prelusion

[1] This Judicial Review matter went on appeal all the way to the Federal Court. At its culmination, the Federal Court upheld the High Court's Order that the Respondent (MBPP) is liable to the Applicants for damages, and ordered damages to be assessed by the High Court.

[2] In November 2015, MBPP granted the Applicants a temporary permit to operate a hotel (Permit). A few months later in April 2016, MBPP cancelled the Permit.

[3] The Applicants filed for a judicial review of MBPP's decision to cancel the Permit. The Applicants sought reliefs and remedies that included a certiorari Order to quash MBPP's decision, and damages.

[4] This proceeding before me is the assessment of damages. An assessment of damages (AOD) proceeding is centrally about the evidence. It is also about the legal principles that govern the AOD. The sole issue for determination is whether, on the balance of probabilities, the Applicants have proven the overall quantum of damages that they seek.

[5] The Applicants seek the overall quantum of damages which is made up of the respective amounts of damages under these seven heads of loss or damage:

(1) loss of income from the sale of room-nights (or simply put: sale of rooms) of RM3,904,418.00;

(2) idle labour costs of RM213,148.87;

(3) statutory contributions for Employees' Provident Fund (EPF) of RM29,977.53 and Social Security Organisation (SOCSO) of RM3,760.43;

(4) ASTRO broadcast charges of RM10,231.65;

(5) Rent paid to the Joint Management Body of the Maritime Waterfront development to operate the hotel of RM2,626.50;

(6) apportioned Permit fees of RM545.75;

(7) further damages for loss of reputation, loss of opportunity and profit, and a resumption-of-business cost.

The Principles Governing Damages

[6] First, the fundamental principle on damages applied here is that damages are to compensate the Applicants for the loss and damage that they suffered due to the wrongful cancellation of the Permit. Damages are to compensate the Applicants by restoring them to their position as if the Permit was not cancelled - Goo Sing Kar v. Dato' Lim Ah Chap & Ors, [2013] 3 MLJ 374.

[7] In Goo Sing Kar (supra), the Court Of Appeal hel:

[2] The measure of damages to be awarded to an aggrieved party has been restated in many ways... And all these eminent Law Lords derived their inspiration from the speech of Lord Blackburn in Livingstone v. The Rawyards Coal Company [1880] 5 App Cas 25 (HL) at p 39 when His Lordship said about the measure of damages in these erudite terms:

that sum of money which will put the party who has been injured, or who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.

[3] Asquith LJ in Victoria Laundry (Windsor) Ltd v. Newman Industries Ltd [1949] 2 KB 528 (CA) at p 539 aptly said about the measure of damages in this way:

It is well settled that the governing purpose of damages is to put the party whose rights have been violated in the same position, so far as money can do so, as if his rights had been observed.

[4] Lord Diplock in Albacruz (Cargo Owners) v. Albazero (Owners), The Albazero [1977] AC 774 (HL) at p 841C described the purpose of awarding damages in these words:

to put the person whose right has been invaded in the same position as if it had been respected so far as the award of a sum of money can do so.

[Emphases Mine]

[8] Second, it is also a fundamental principle that damages must be proven, and not merely asserted. These fundamental principles are reinforced in the Federal Court case law authority of Datuk Mohd Ali Hj Abdul Majid & Anor (both practising as Messrs Mohd Ali & Co) v. Public Bank Bhd, [2014] 4 MLJ 465.

[9] In Datuk Mohd Ali Hj Abdul Majid (supra), the Federal Court held:

[32] It is trite law that a claimant claiming damages must prove that he has suffered the damage. The claimant has the burden of proving both liability and quantum