Apology not a remedy in breach of contract cases, says Court of Appeal

The appeals court says there is nothing in the Contracts Act 1950 that allows for a written apology as a remedy for breach of contract.

A three-member bench said a consultant orthopaedic surgeon was not entitled to a mandatory injunction to compel Pantai Medical Centre Sdn Bhd (PMC) to issue a letter of apology following the company’s wrongful termination of his contract.

In an 85-page written judgment, Justice Wong Kian Kheong said the remedy was unavailable as the suit was not premised on defamation.

He explained that the surgeon’s sole cause of action was contractual, arising from PMC’s wrongful termination of his services.

“We are of the view that the learned High Court judge erred in law in awarding the perpetual mandatory injunction (for an apology). There is nothing in the Contracts Act 1950 which empowers (it).

“We are also not aware of any Malaysian case granting such a remedy for a mere breach of agreement,” the judgment read.

Also on the panel hearing the appeal were Justices Azizah Nawawi – now Chief Judge of Sabah and Sarawak – and Azizul Azmi Adnan.

The bench also set aside the special, exemplary and aggravated damages awarded to the surgeon for alleged loss of professional reputation and emotional distress, ruling that such claims were “too remote” to be recoverable.

“The loss of professional reputation and emotional distress did not naturally arise in the usual course of things from PMC’s termination of the agreement,” Wong said, citing Section 74(1) of the Contracts Act.

He said neither party could have reasonably contemplated such losses when entering into the agreement.

The bench also affirmed the High Court’s finding that PMC’s non-renewal of the surgeon’s clinical privileges did not entitle the company to terminate the surgeon’s fixed three-year term agreement prematurely.

PMC, which owns a hospital in Seri Manjung, Perak, had appointed the plaintiff as a resident orthopaedic surgeon under a consultant’s agreement on an independent contractor basis.

The hospital had also conditionally granted him clinical privileges to perform certain specific procedures.

The surgeon argued that the withdrawal of privileges and premature termination of his engagement had damaged his reputation and prevented him from securing employment at other private hospitals.

He said he had had to practise at a private clinic which has seen him earn a lower income.

In its defence, PMC defended its decision, citing patient complaints and alleged breaches of its medical staff code of ethics. However, the High Court found the allegations unproven, a conclusion the Court of Appeal did not disturb.

The appeals court ruled that the surgeon, who claimed average monthly earnings of RM85,000, was entitled only to compensation for the remaining eight months of his contract, running from July 29, 2016 to March 3, 2017.

It ordered that damages be assessed by the High Court.

Lawyers N Sivabalah, Fazleeza Azli and Goh Lee Ding appeared for the hospital.

AG Kalidas, Jasmin Anne Raj, Wesley Wong and Parimalar Ilamaran represented the surgeon.

Kalidas said he has instructions to file an application for leave to appeal to the Federal Court.