JUDGMENT
Introduction
[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 was 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 and extended in 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.