(iii) the badges worn by the auxiliary police indicated the name of the defendant, all of which suggest that there was cogent evidence to support the conclusion of the trial judge that the auxiliary police were under the responsibility and control of the defendant. The finding of fact of the 5 trial judge in this respect cannot be said to be plainly wrong. [13] For these reason, we do not consider that appellate intervention would be justified, and the defendant’s appeal on liability is dismissed with costs. DAMAGES The Terms of the Letter of Award 10 [14] The Letter of Award issued by Hayat Lestari to the plaintiff was set out at page 415 of Enclosure 6 in the record of appeal. The terms of this letter established that the plaintiff would purchase the scrap metal from Hayat Lestari. The plaintiff would then sell the scrap metal to a steel factory, described by the plaintiff’s project manager (Ishak Malim bin Sidik Malim, PW4) as Eastern Steel2. 15 However, even though the plaintiff was expressed as a buyer of the scrap metal, the revenue that it obtained under the terms of the contract with Hayat Lestari was based on a fixed margin. The plaintiff was to pay to Hayat Lestari the price that the steel factory paid for the scrap metal, less a fixed margin of RM100 per metric tonne for mill-sized scrap metal or RM200 per metric tonne for oversized 20 scrap metal pieces. [15] The Letter of Award set out the estimated quantity of scrap metal as 1,500 metric tonnes. Thus, assuming that all the scrap metal was oversized, the 2 E4/222 EPIC Berhad v AD Metal Trading & Transport AD Metal Trading & Transport v EPIC Berhad 9 maximum estimated revenue that the plaintiff could have attained under the Letter of Award was RM200/MT x 1,500MT = RM300,000. [16] No evidence was led as to how much of the scrap metal to be removed from the Kemaman Supply Based was oversized. [17] Now, it has to be borne in mind that this sum of RM300,000 represented 5 the revenue that the plaintiff could have attained had it not been prevented by the defendant from removing the scrap metal. It was not the plaintiff’s profit. In order to ascertain the profit, the plaintiff must show the costs it would have to incur in performing the contract. The only evidence that was led in this regard was the cost of RM2,000 per lorry per day. Based on the single delivery that was 10 permitted to leave the Kemaman Supply Base on 5 April 2021, we know that this lorry carried 23.38MT of scrap metal. No evidence was led as to how many trips a single lorry can undertake in a day. The court may take judicial notice that the distance between the Kemaman Supply Place and the Eastern Steel factory in Kijal is less than 10 kilometres, but no evidence was led on how long it would 15 take to load each lorry with scrap metal, which would have a bearing on how many trips a single lorry would be able to undertake in a single day. [18] The plaintiff led evidence that it had demarcated three lorries for the purposes of performing the contract. Evidence was also led that lorries had been deployed on 6 April 2021, but were not permitted to remove the scrap metal 20 from the Kemaman Supply Base. Measure of Damages: Costs and Expenses or Loss of Profits? [19] In a contractual cause of action, a plaintiff may claim for its loss of profits under the contract, or it may claim for the costs and expenses it had expended in pursuing the contract, but it may not claim both. 25 EPIC Berhad v AD Metal Trading & Transport AD Metal Trading & Transport v EPIC Berhad 10 [20] By contrast, the measure for damages under a tortious cause of action would generally be restorative (save perhaps for certain categories of economic torts). The Federal Court in Majlis Perbandaran Ampang Jaya v Steven Phoa Cheng Loon3 explained the principles for pure economic losses in negligence and nuisance claims, which in our view would equally apply to the tort of trespass to 5 goods. The Federal Court stated: Pure Economic Loss The third question postulated the consideration of whether pure economic loss is recoverable under the Malaysian jurisprudence in negligence and nuisance. In the law of negligence, there is no immutable rule that pure economic loss is not 10 recoverable. All major Commonwealth jurisdictions recognize that pure economic loss is recoverable in negligence. Under English law, the general duty of care test enunciated in Caparo Industries Plc. v. Dickman [1990] 2 AC 605 is applicable to all negligence claims, including claims for pure economic loss. Pursuant to this test, 3 questions have to be addressed, namely, whether the damage suffered by the 15 plaintiff is reasonably foreseeable; whether there is a relationship of proximity between the plaintiff and defendant; and whether it is fair and reasonable that the defendant should owe the plaintiff a duty of care. The English courts have adopted a dual approach in applying the Caparo test (see Marc Rich & Co. AG v. Bishop Marine Co. Ltd [1996] 1 AC 211). The first concerns the "categorization approach". Here, the 20 English courts would determine if the plaintiff's claim falls into a recognized category of liability. In cases of pure economic loss, the recognized categories include the following scenarios ie, (1) where a defendant has assumed a particular responsibility towards the plaintiff. For example, in White v. Jones [1995] 2 AC 207, where a solicitor was found to have assumed a responsibility towards the beneficiary under a will 25 when drafting the will pursuant to a testator's instructions; (2) where a defendant has exposed a plaintiff to a particular danger (see Harris v. Evans [1998] 1 WLR 1285) and (3) where there is a recognized legal relationship between the plaintiff and defendant. For example, in Phelps v. Hillingdon London Borough Council [2001] 2 AC 6019, 667, it was found that a teacher-pupil relationship might place a teacher under 30 a duty of care not to cause pure economic loss by teaching pupils the wrong syllabus. The second concerns the "open-ended approach". Here, if the facts of a particular case do not come within a recognized category of liability, a court could go further to look at the facts closely to determine if a duty of care should nevertheless be owed by the defendant to the plaintiff. Recent statements by the English courts confirm 35 that the "open-ended approach" can be used to recognize duties of care in new situations: (see Spring v. Guardian Assurance Plc. [1985] 2 AC 295.) 3 [2006] 2 CLJ 1 EPIC Berhad v AD Metal Trading & Transport AD Metal Trading & Transport v EPIC Berhad 11 [21] We are of the view that pure economic loss may be claimed for the tort of trespass to goods, provided that such losses are reasonably foreseeable. On the facts of the present case, the act by the agents of the defendant in detaining the lorries could reasonably be foreseen to have caused the loss of profits that the plaintiff could have attained from the sale of the scrap metal. 5 [22] In this case, certain heads of damages claimed by the plaintiff related to the costs and expenses that it had incurred (for example the costs of the lorries), while certain other heads related to the loss of profits (the estimated RM300,000 revenue that it would attain under the contract, which was awarded by the trial judge). As explained, the plaintiff would not be able to claim both. It 10 would have to elect whether the damages would be purely restorative, or whether to claim for its economic losses in not being able to perform the contract constituted by the Letter of Award. [23] Further, as explained, the claim for RM300,000 represented the expected maximum revenue to the plaintiff under the contract; it was not the profit that 15 the plaintiff could have obtained, because account must be made of the costs that it would have had to incur in order to perform the contract. The trial judge was thus in error in awarding RM300,000 to the plaintiff. [24] In the following paragraphs, we explain the damages that could have been claimed by the plaintiff under each alternate measure, and conclude that the 20 plaintiff would have been able to obtain higher damages on the basis of the costs and expenses it had incurred. Costs and Expenses [25] Evidence was led that the plaintiff had paid a deposit of RM200,000 to Hayat Lestari and that this deposit had been forfeited. The fact that the deposit 25 EPIC Berhad v AD Metal Trading & Transport AD Metal Trading & Transport v EPIC Berhad 12 was paid was supported not only by the terms of the Letter of Award but also the remittance advice for a RENTAS transfer made on 22 March 20214. [26] As explained, evidence was also led that the plaintiff had to incur costs RM2,000 per lorry per day for three lorries. Collections were attempted on 5 and 6 April 2021. Only one delivery was successfully made. 5 [27] In our judgment the plaintiff would have been under a duty to mitigate its losses, and so we would permit the expenses incurred only for those two days, which would total to RM12,000 (three lorries over two days at a rate of RM2,000 per lorry per day). [28] Against this must be deducted the revenue that the plaintiff had attained 10 from the single successful delivery. We know that the weight of the delivery was 23.38MT. Assuming that the delivery was for oversized scrap metal, the revenue accruing to the plaintiff for this delivery would have been: