What is the legal position if a plaintiff who applies for summary judgment positively asserts in its supporting affidavit a sum of money said to be the loss and damage suffered by the plaintiff due to the negligence of the defendant, which supporting affidavit is met with no reply or challenge in its entirety by the defendant?
This was the question which the Federal Court had to consider in the recent case of Datuk Mohd Ali bin Hj Abdul Majid & Anor v Public Bank Berhad (Civil Appeal No. 02(i)-24-05/2013(M), 22 May 2014).
In that case, the plaintiff bank claimed against the defendant solicitors for breach of contract and negligence, and applied for summary judgment against the defendants claiming damages in excess of RM900,000.00. From the judgment of the court, it appeared that the affidavit filed by the plaintiff bank in support of its application did not contain any or any sufficient documentary evidence in the form of exhibits to establish the loss and damage suffered.
The Deputy Registrar granted summary judgment for the amount claimed by the plaintiff, without directing damages to be assessed, on the ground that the defendants did not file any affidavit in reply to the plaintiff’s supporting affidavit, and did not file any written submissions opposing the application. The decision of the Deputy Registrar was reversed by the High Court who directed that damages should be assessed, but this in turn was reversed by the Court of Appeal who agreed with the Deputy Registrar.
The defendants’ appeal to the Federal Court was allowed. The Federal Court, in agreeing with the High Court, held that damages should be assessed. The reasoning of the Federal Court was as follows:-
 The principal issue in this appeal is whether a summary judgment may be entered for the amount as prayed for in the statement of claim and as affirmed in the affidavit in support without the need for any assessment. The claim by the plaintiff in this case is for damages arising out of the defendants’ breach of contract and/or negligence. …
 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 of damages, before he can recover the sum claimed. This follows from the general rule that the burden of proving a fact is upon him who alleges it and not upon him who denies it, so that where a particular allegation forms an essential part of a person’s case, the proof of such allegation falls on him. (See s.103 of the Evidence Act 1950.) If he fails to prove both the liability and the quantum of damages, he loses the action.
 Therefore, in a claim for damages, it is not sufficient for the plaintiff to merely state the amount of damages that he is claiming, he must prove the damage that he had in fact suffered to the satisfaction of the court. This principle is borne out in the case of Bonham-Carter v. Hyde Park Hotel  64 T.L.R. 177 where Lord Goddard C.J observed:
“Plaintiffs must understand that if they bring actions for damages it is for them to prove their damage; it is not enough to write down the particulars, and, so to speak, throw them at the head of the court, saying: ‘This is what I have lost, I ask you to give me these damages.’ They have to prove it.”
 The claim by the plaintiff in the present case is for general and special damages arising out of breach of contract and/or negligence. Therefore, the burden rests on the plaintiff to prove the damages and it is not sufficient for the plaintiff to merely assert that he had suffered such damages without proving it. (See The Susquehanna  A.C. 655 and Bolag v. Hutchison  AC 515.) In the circumstances, we hold that the learned High Court Judge was right in ordering that summary judgment be entered on liability with damages to be assessed. …
The Federal Court was arguably legitimately concerned not to set a precedent whereby a plaintiff in an application for summary judgment could simply allege by way of affidavit that it had suffered an extravagant amount of loss or damage without exhibiting any documentary proof of such loss or damage, in hopes that the defendant would not reply to or challenge such affidavit. (Although by way of analogy and comparison, if the writ is endorsed with a claim for a liquidated demand, there would be no objection to a judgment in default being granted for the sum claimed, no matter how extravagant it may be.) Certainly, on the facts of the case before it, as the defendants no longer disputed liability, the decision to order assessment of damages was no doubt the safest course of action for the Federal Court to take.
However, the reasoning of the Federal Court raises several concerns.
- First, while the Federal Court’s observations that damages must be proved is no doubt correct as a matter of general principle, the recital of established authority in this case appears to have missed the mark and merely begged the question. In particular, the Federal Court stated that “it is not sufficient for the plaintiff to merely assert that he had suffered such damages without proving it”, yet did not attempt to explain or address the legal effect of the defendants’ failure to file any affidavit in reply to challenge the averments in the plaintiff’s affidavit, in particular the alleged loss and damage suffered by the plaintiff.In the realm of civil procedure, one of the (arguably) best-known principles relating to affidavit evidence is that “where one party makes a positive assertion upon a material issue, the failure of his opponent to contradict it is usually treated as an admission by him of the fact so asserted“: Ng Hee Thong v Public Bank Berhad  1 MLJ 281, CA. Or, as Mahadev Shanker J observed in Overseas Investment Pte Ltd v Anthony William O’Brien & Anor  3 MLJ 332, “The plaintiff did not file any affidavit to contradict the affidavits filed by the claimant. Where a case is to be decided on a contest of affidavits, the rule is clear. Material allegations which are not contradicted are deemed to be admitted …”
The loss and damage suffered by the plaintiff was no doubt a material issue. The failure of the defendants to file any affidavit in reply to contradict or challenge the plaintiff’s averments on this issue could only mean that the plaintiff’s positive assertion as to the loss and damage suffered would be deemed to be admitted by the defendants. To require the plaintiff to “prove” what has been “admitted” does not therefore make any sense. It is a contradiction in terms. It is both unfortunate and regrettable that the Federal Court did not consider and made no reference whatsoever to cases such as Ng Hee Thong. It is unclear how the Federal Court’s decision can be reconciled with the general principle reflected in cases such as Ng Hee Thong.
- Secondly, the English Court of Appeal has consistently held that in an application for summary judgment, it is possible for the court to order payment of certain sums without the need for assessment provided that “the amount ordered to be paid has already been ascertained or is capable of being ascertained by mere calculation without further investigation, or is admittedly due“: Associated Bulk Carriers Ltd v Koch Shipping Inc; The Fuohsan Maru  2 All ER 254; Ellis Mechanical Services Ltd v Wates Construction Ltd (1976) 2 BLR 57; Lazarus v Smith  2 KB 266. However, it appears that these authorities were neither referred to nor considered by the Federal Court.On the basis that the loss or damage suffered by the plaintiff would be deemed admitted (see Ng Hee Thong etc above), the Deputy Registrar and the Court of Appeal were arguably correct to give judgment for the amount claimed in the writ without the need for assessment, simply because there was nothing left to assess.
- Thirdly, it is unclear why the Federal Court relied on section 103 of the Evidence Act 1950 to support its reasoning that in an application for summary judgment the plaintiff must prove the damages suffered. It is well-established that the provisions of the Evidence Act do not apply to affidavit evidence: see section 2 of the Evidence Act; Chan Kwai Chun v Lembaga Kelayakan  3 MLJ 550, CA.
- Fourthly, it is also unclear why the Federal Court completely disregarded the conduct of the defendants in this case. As mentioned above, the defendants failed to file any affidavit in reply to oppose or challenge the plaintiff’s application for summary judgment. The defendants’ counsel sought to explain that “the defendants had never disputed the liability and for that reason they did not file any affidavit in reply”, but nevertheless insisted that damages must be assessed. It is difficult to view this as an honest, bona fide explanation by the defendants.
- Finally, it should be noted that the plaintiff’s claim for damages consisted of RM899,190.13 being a judgment against a judgment debtor of the plaintiff which was barred by limitation due to the defendants’ negligence; RM26,202.55 which was the sum paid to the said judgment debtor by the plaintiff as costs following failed execution proceedings by the plaintiff and the costs of a writ of seizure and sale taken out by the judgment debtor; and RM13,691.70 being the legal fees charged by the defendants. If the material facts leading to and resulting in the aforesaid loss and damage were set out in the plaintiff’s affidavit (as they should and in all likelihood would) and deemed admitted by the defendants, it is impossible to see how the defendant could possibly dispute the quantum of damages during assessment proceedings, which would be wholly identical to the amounts which they would have been deemed to have admitted to in the first place.
In reality, it is difficult not to view the defendants’ insistence on assessment of damages, in the face of its own (unapologetic) admission as to liability in negligence, as no more than an attempt to delay the inevitable and to frustrate the plaintiff for as long as (legally) possible. The decision of the Federal Court in this case will not encourage better behaviour in the future. Plaintiffs beware.