Damages in tort law are compensatory, and awards must not unjustly enrich claimants, especially when prior settlements exceed awarded amounts.

JUDGMENT

Arziah Mohamed Apandi JC:

Introduction

[1] This is an appeal on quantum of the decision of the Sessions Court Judge ("SCJ") dated 9 May 2023 ("Appeal No 76"), where the SCJ allowed the Appellants' claim in parts against the Respondents by awarding:

(a) General damages of RM20,000.00;

(b) Special damages of RM2,291.00;

(c) Refund of alarplasty treatment costs of RM4,400.00;

(d) Interest at 5% per annum from the filing date until full settlement; and

(e) Costs of RM6,000.00.

[2] In Appeal No 76, the Appellants appealed on the non-award for punitive and exemplary damages. On the said decision of the SCJ, the Respondents appealed on liability ("Appeal No 77"), where I have made separate grounds of judgment on liability only.

[3] The Appellants claim for breach of contract and duty of care together with tort by deception by the Respondents. The Second Defendant in the Court below settled with the Appellants before the case was tried in full trial, resulting in the claim against the Second Defendant being withdrawn, but the Second Defendant did not testify.

[4] Having heard the appeal, on 21 May 2024, I dismiss Appeal No 76 by maintaining all awards given. Since the Appellants on 28 August 2024 obtained leave from the Court of Appeal to appeal against my decision, below are my grounds of decision.

Appellate Court Intervention

[5] Appellate courts should only overturn trial judges' factual findings if they are clearly unreasonable or unjustifiable, not just because they disagree (see Ong Leong Chiou & Anor v. Keller (M) Sdn Bhd & Ors; [2021] 3 MLJ 622; [2021] 4 CLJ 821 FC; Henderson v. Foxworth Investments Ltd And Another [2014] 1 WLR 2600; Watt (or Thomas) v. Thomas [1947] AC 484).

[6] There is a high threshold for intervention. Appellate courts must respect trial judges' role and findings, as they have the advantage of seeing witnesses firsthand (Ng Hoo Kui & Anor v. Wendy Tan Lee Peng & Ors; [2020] 12 MLJ 67; [2020] 10 CLJ 1 FC; McGraddie v. McGraddie And Another [2013] UKSC 58 SC; Chow Yee Wah & Anor v. Choo Ah Pat; [1978] 2 MLJ 41b CA; Tay Kheng Hong v. Heap Moh Steamship Co Ltd; [1964] 1 MLJ 87 CA).

[7] Intervention should be limited in scope (Tengku Dato' Ibrahim Petra Tengku Indra Petra v. Petra Perdana Berhad & Another Case; [2018] 2 MLJ 177; [2018] 2 CLJ 641 FC; Borneo Housing Mortgage Finance Berhad v. Time Engineering Berhad; [1996] 2 MLJ 12; [1996] 2 CLJ 561; [1996] 2 AMR 1537 FC). In Dream Property Sdn Bhd v. Atlas Housing Sdn Bhd; [2015] 2 MLJ 441; [2015] 2 CLJ 453; [2015] 2 AMR 601 FC, the Federal Court held:

"The duty of an appellate Court in appeals against findings of fact by a trial judge has been stated repeatedly. Essentially, an appellate Court should not disturb findings of fact by a trial judge unless it is satisfied that the findings are plainly wrong."

[8] In UEM Group Bhd v. Genisys Integrated Engineers Pte Ltd & Anor; [2018] MLJ (Supp) 363; [2010] 9 CLJ 785 FC, the findings of credibility was integrate of a reasonable and judicial appreciation of the evidence. A decision arrived at by a trial Court without judicial appreciation of the evidence may be set aside on appeals (Gan Yook Chin & Anor v. Lee Ing Chin & Ors; [2005] 2 MLJ 1; [2004] 4 CLJ 309; [2004] 6 AMR 781 FC). 'Plainly wrong' to mean 'one that no reasonable judge could have reached' (Ong Leong Chiou & Anor v. Keller (M) Sdn Bhd & Ors; [2021] 3 MLJ 622; [2021] 4 CLJ 821 FC).

[9] The focus should be on whether the trial judge's decision was reasonable, not whether the appellate Court would have decided differently (Tengku Dato' Ibrahim Petra Tengku Indra Petra v. Petra Perdana Berhad & Another Case; [2018] 2 MLJ 177; [2018] 2 CLJ 641 FC; Ong Leong Chiou & Anor v. Keller (M) Sdn Bhd & Ors; [2021] 3 MLJ 622; [2021] 4 CLJ 821 FC; Henderson v. Foxworth Investments Limited [2014] UKSC 41 SC).

[10] Appellate courts should take a restrained approach, only intervening when decisions are demonstrably unreasonable. This balances respect for the tria