Breach but not damage

Compensation is for damages caused by a wrongdoing, but not for the wrongdoing alone.

IN the course of dealings between individuals and/or legal entities, there are occasions when things may go wrong and as a result a dispute occurs.

When this happens there is always the perception that the party at fault must compensate the other, who feels aggrieved and entitled to such compensation.

The situation, however, is not as simple as that. This is because it is not always specifically clear and patently apparent as to who the wrongdoer is. Of course, each party may perceive the other to be the wrongdoer, but I will come to that later.

The other aspect is that monetary compensation is not the only remedy that may be sought or expected. Thus, if piling work is going on in the neighbouring or adjacent lot of land, a person who is on a nearby lot may feel disturbed by the noise and impact of the piling. Such a person may want this to stop. This could involve asking for an injunction.

Or there may be a situation where a person has defamed another through word of mouth or in written form. The person aggrieved may be more concerned about repetition of the statements than obtaining damages in court several months or years later.

Thus he may be more concerned to prevent repetition of the words or utterances which are damaging to him. Collision

However, returning to the subject of this article, the concept of seeking for and obtaining compensation for a wrong, it would be helpful to look at a situation where one car has collided into another car. Is compensation automatically payable?

Where such a collision occurs or takes place, it depends on what the effect is. If, as a result of the collision, the car of the party who is not at fault is damaged by being dented or parts broken, then of course compensation will be payable to rectify and remedy the damage and restore the car to its earlier condition.

Yet there may be instances where one car touches another. For a variety of reasons a car in front can roll backward or the car behind rolls forward and touches the other car. Of course, it would be the fault of the party who allows his car to roll but is compensation payable?

Or it may be that the car behind is travelling at considerable speed and because the car in front comes to a sudden stop, the car at the back is unable to stop in time. In consequence a collision occurs.

Very often, where the driver of the car in front has been knocked into by a car behind, he will often require compensation because there is a tendency to assume the driver of the car behind is at fault.

Indeed, the touching of the car in front may be due to the driver at the back, but is compensation payable?

However, where, apart from such touching or contacting, no damage is caused, is compensation payable?

The answer to this is simply that compensation is not payable in ordinary circumstances, because such compensation would be for damage caused arising out of the wrongdoing but not for the wrongdoing alone.

Whose fault?

The person in the car in front may claim that because of the incident he was put to the inconvenience of getting out of his car to check what effect the knock had and to see if any damage was caused.

However, this is not the concept of damages for purposes of recovery.

But then does it mean that though technically one person is at fault, there is no remedy? The answer to this is that the remedy is for the damage caused.

But if there is no damage, the need for compensation does not arise.

If the matter goes to court for the purposes of finding of fault, the court may end up determining who was at fault. But as there was no damage, the court would only award nominal damages at best.

The damages in the circumstances could be RM1, RM10 or RM100, but what purpose does this serve, you may ask.

Well, the damages awarded in such circumstances would be to register the fact that the complaining party has succeeded in its allegations and won.

As stated earlier, even in the context of a collision which would usually be referred to as an accident, it may not be clear whether it is the fault of one party alone. This is because both parties may be responsible for the collision that resulted.

In the course of dealings between individuals and/or legal entities, there are occasions when things may go wrong and as a result a dispute occurs.

Any comments or suggestions for points of discussion can be sent to mavico7@ yahoo.com. The views expressed here are entirely the writer’s own.