The court clarifies that exemplary damages can be awarded against a statutory body for wrongful disconnection of electricity if established misconduct is evidenced while affirming special damages must meet the balance of probabilities standard.

[1]The focus of this appeal relates to the assessment and grant of damages generally. The Appellant, Big Man Management Sdn Bhd (‘Big Man’) appeals against the decision of the Court of Appeal which did not award any damages to Big Man despite a clear finding of liability against Tenaga Nasional Berhad (‘TNB’). For the purposes of this appeal, the two heads of damages that arise for consideration are special damages and exemplary damages.

[2]The basis for the Court of Appeal’s decision, in essence, was that Big Man’s claim for special damages was not demonstrated or verified. With respect to exemplary damages the issue related to whether such damages can be awarded against a body such as TNB.

[3]The primary issues that arise for our consideration are:

(a)Firstly, to consider the evidential approach to be taken in relation to the proof of special damages. More particularly:

(i)What does the term ‘strictly proved’ mean?

(ii)How is the evidentiary burden established by the claimant?

(iii)Is such evidentiary burden greater than establishing the claim on a balance of probabilities?

(b)Secondly, with respect to exemplary damages, the issue before this Court relates to whether exemplary damages are claimable by a consumer of electricity in a claim for breach of contract against TNB. Such a claim is to be considered in the context of the distinct facts of the instant case. Here, TNB is a statutory body accorded powers by Parliament to be the sole supplier of the essential utility of electricity to all consumers in the country. The allegation is that as this body has consciously and deliberately acted in excess of the powers granted to it, can exemplary damages for oppressive or arbitrary conduct as envisaged under the first category of Rookes v Barnard [1964] AC 1129 Kuddus v Constable of Leicestershire Constabulary [2001] UKHL 29 be awarded against it? Of particular concern is the position in law where exemplary damages are not generally awarded under the law of contract.

The other issues raised are ancillary to the primary issues above.

Relevant Background

[4]This is a case where Tenaga Nasional Berhad (TNB) disconnected electricity supply to the premises of an ice -making factory owned by one Ice Man Sdn Bhd (‘Ice Man’) operated by Big Man. Prior to disconnection, TNB discovered meter tampering by the factory but rectified the same. Big Man sued TNB for damages premised on several causes of action:

(a)Wrongful disconnection of electricity;

(b)Trespass on its premises;

(c)Wrongful interference with business; (d) Defaming Big Man to a third party; and

(d)Breach of statutory duty by disclosing the details of its account to a third party without its consent.

[5]TNB’s claims for trespass, wrongful interference with business, damages and a breach of statutory duty do not arise for consideration in this appeal.

Questions of Law

[6]As stated at the outset, the appeal is primarily directed at the Court of Appeal’s reversal of the High Court award of damages to Big Man for TNB’s wrongful disconnection of electricity. The questions of law in respect of which leave to appeal was granted are:

Q1 Whether the evidential approach of the Court of Appeal with reference to the expression “special damages must be specifically pleaded and strictly proven” stands to be corrected and/or clarified whereby special damages only need be established on a balance of probabilities before a trial court?

Q2 Whether exemplary damages are claimable by a consumer