Special damages must be specifically pleaded; failure to do so precludes claims despite evidence of damages.

Introduction

[1] In this case, I had set aside the Registrars awards of special damages as well as aggravated/exemplary damages on the ground that the procedural rules and principles relating to pleadings on damages were not observed. This judgment therefore underscores the need for strict adherence to and compliance with the basic rules of pleadings vis-a-vis claims for damages.

[2] The plaintiff had filed this action against the defendants for, inter alia, damages which were caused to the plaintiffs property due to the construction works that were being carried out by the defendants on the adjoining property. This judgment relates only to the assessment of damages. Liability for negligence/nuisance against the defendants had been established previously in this action.

[3] After liability had been found against the defendants, damages were assessed by the learned Senior Assistant Registrar ("SAR"). Thereafter, the plaintiff, the 2nd defendant ("D2") and the 3rd defendant ("D3") lodged appeals by way of notices of appeal to the Judge in Chambers pursuant to O 56 r 1 of the Rules of 2012. The 1st defendant ("D1") did not participate in the assessment of damages.

[4] At the conclusion of the proceedings herein, I partially allowed the appeal by D2 and D3 and set aside a sum of RM865,769.65 (RM211,656.65 plus RM654,113.00) which the plaintiff had claimed as costs and expenses. I also set aside a sum of RM100,000.00 being aggravated and exemplary damages which had been awarded by the learned SAR.

[5] These are my Grounds of Judgment in respect of encl 82 and encl 83, which are appeals against the decision of the SAR dated 22 April 2013 who had conducted the hearing on assessment of damages after judgment on liability had been handed down previously by the learned Judicial Commissioner. The parties who are appealing are the plaintiff ("encl 82") and D2 and D3 ("encl 83").

The Issues

[6] As stated earlier, the issues that arise in these appeals pertain to the inadequacy or absence of pleadings in respect of a claim for special damages and aggravated and/or exemplary damages. The issues may be specifically stated as follows:

i. whether special damages must be specifically pleaded;

ii. whether costs and expenses which were incurred or borne by the plaintiff (as a result of the tort committed by the defendants) and which had been duly proven by the plaintiff during the hearing of assessment of damages may be allowed, albeit that the statement of claim contains absolutely no pleading whatsoever with regard to the items that are being claimed as special damages;

iii. whether it is permissible for evidence as to special damages to be adduced during the hearing of assessment of damages when special damages has not been pleaded in the statement of claim;

iv. whether the defendants failure to object to the evidence of special damages being adduced during hearing of assessment of damages before the SAR amounts to a waiver on the issue of inadequacy or absence of pleadings for special damages;

v. whether the defendants failure to object when evidence of special damages was adduced during the hearing of assessment of damages before the SAR precludes them from raising the inadequacy or absence of pleadings for special damages as a ground of appeal during the appeal to the Judge in Chambers;

vi. whether aggravated and/or exemplary damages must be specifically claimed as a relief in the statement of claim; and

vii. whether aggravated and/or exemplary damages may be claimed by the plaintiff notwithstanding that the particulars or the factual basis or matrix for aggravated and/or exemplary damag