To what extent (if any) may a victim of a breach of contract claim damages for emotional distress?
It was once received wisdom that there could be no recovery of damages for disappointment, vexation, frustration or emotional distress in cases of contract. The terminology used in the cases varied, but the effect was that a plaintiff could not recover damages for hurt feelings. Has the law changed? Can surveyors, for example, be liable not only for financial loss but also for distress, where they fail to carry out their contractual undertakings? Can landlords be liable on the same principle where they are in breach of their covenants in the lease?
In Addis v Gramophone Co [9] AC 488 the plaintiff had been dismissed, ignominiously, by the defendants from his employment as their business manager in Calcutta. The House of Lords held that he could not recover damages for his injured feelings. However, it appears that there are many exceptional cases and, indeed, some statements of the law which suggest that the principle bears re-examination.
The cases can be split into convenient categories.
Marriages
In Diesen v Samson 1971 SLT 49 (Sheriff Court, Scotland) the defendant photographer failed to turn up, as he had promised, to take photographs at the plaintiff’s wedding. Damages for mental distress were awarded. A similar result was reached in an old American case in Louisiana where the dressmaker did not have the wedding dress ready on time!: see Lewis v Holmes (1903) 34 So 66.
Employment contracts
In Cox v Philips Industries [6] 1 WLR 638 the plaintiff was moved sideways at work to a job with the same salary but with less responsibility and less prestige. He became depressed and ill. Lawson J awarded damages for mental distress, saying that the damage which occurred to the plaintiff was something that was in the contemplation of the parties to the contract.
This thinking has been followed in Canada. In Tippett v International Typographical Union Local 266 (1977) 71 DLR (3d) 146 the plaintiffs had been expelled from their union in breach of the membership agreement. They successfully sued for damages for distress, claiming they had been shunned by their workmates. However, more recently, recovery has been denied in such circumstances. In Bliss v. South East Thames Regional Health Authority [7] ICR 700 Farquharson J had allowed recovery where an orthopaedic surgeon had claimed damages for emotional frustration where his employers had, in breach of contract, insisted that he undergo a medical examination by a psychiatrist. He had refused and been suspended. The Court of Appeal reversed this part of the decision.
Holidays
The more well-known cases where damages for distress have been recovered are in the holiday-type situation. In Jarvis v Swans Tours Ltd [3] QB 233 a local government lawyer successfully sued for damages for disappointment where he booked to be part of a ski house-party only to find that he was the sole guest. In Jackson v Horizon Holidays Ltd [1975] 1 WLR 1468 Mr Jackson recovered damages for himself and the other members of his family where the hotel in Sri Lanka did not come up to his specified requirements. This reasoning has been adopted in Canada. In Elder v Koppe (1975) 33 DLR (3d) 705 the plaintiffs had been promised a holiday motor-home, which did not materialise. They recovered damages for distress. In Keks v Esquire Pleasure Tours Ltd (1974) 3 WWR 406 an award for mental distress was made where the holiday company, in breach of contract, failed to provide a room for the housekeeper.
Professional clients
In Cook v Swinfen [7] 1 WLR 457 Lord Denning MR, in the Court of Appeal, had refused damages for distress where a solicitors’ firm had negligently handled the plaintiff’s divorce. Yet in Heywood v Wellers (a firm) [1976] QB 446 he indicated that that decision might need rethinking. In that case the plaintiff had sought legal advice on how to prevent a man from pestering her. She had been friendly with the man (who was a police officer) and had lent him money. Then the man pestered her. When she consulted solicitors she thought that she was dealing with someone who was legally qualified but, in fact, was dealing with a clerk. She was advised that the matter of the pestering was straightforward and that the cost of settling it should be small. It was not straightforward and was handled negligently. She was allowed to recover damages for disappointment, upset and mental distress in an action against the solicitors’ firm.
Of particular interest to surveyors is the case of Perry v Sidney Phillips & Son (1982) 263 EG 888 where the plaintiff claimed damages for breach of contract and for negligence against a firm of surveyors which surveyed a cottage in Tenbury Wells and gave it a clean bill of health despite the fact that there were major defects. Damages for distress were awarded. Another case concerning land is Bailey v Bullock (1950) 66 TLR (Pt 2) 791 where Bailey had instructed solicitors to take proceedings to get back his house. This took one year and nine months with the result that the plaintiff had to live with his father-in-law. The court awarded damages for inconvenience and discomfort.
Leases
There are several cases which recognise damages for distress in the context of the law of landlord and tenant. In Mafo v Adams [0] 1 QB 548 damages were awarded for inconvenience where a regulated tenancy was wrongfully terminated. The defendant’s wife had masqueraded as a landlady offering the plaintiff alternative accommodation which did not subsequently transpire. In McCall v Abelesz [1976] QB 585 the landlord was in breach of his covenant to supply gas and electricity to the tenant. Lord Denning considered that the plaintiff was entitled to damages for the mental distress and upset caused by the defendant’s conduct in breach of contract. He considered that the case of Perera v Vandiyar [1953] 1 All ER 1109, which had refused such damages in similar circumstances, should be re-examined. It is interesting that, at first instance, in Perera Judge Leon, better known as the novelist Henry Cecil, had allowed recovery.
In Calabar Properties Ltd v Stitcher (1983) 268 EG 697 a property company rented a penthouse flat to Renee Stitcher at Hendon Hall Court in north-west London. The company was in breach of its repairing covenants. The court held that the tenant was entitled to compensation for discomfort.
Commercial contracts
An early case where recovery was allowed concerned a contract of carriage. In Hobbs v London & South Western Railway (1875) LR 10 QB 111 the plaintiff, his wife and two young children took tickets for a train journey from Wimbledon to Hampton Court by the midnight train. The train went on a different line to Esher. The family was unable to obtain alternative transport or accommodation. They were forced to walk, arriving home at 3 am. The write subsequently became ill. The court permitted recovery of damages for inconvenience.
Commonwealth authorities have also permitted recovery. In Newell v Canadian Pacific Airlines Ltd (1977) 74 DLR (3d) 574 recovery of damages for distress was allowed in Canada where the company undertook to transport two dogs. One of the dogs died and the other one became ill. In the Australian case of Falko v James McEwan & Co Pty Ltd [7] VR 447 the court recognised that in principle there was no reason why recovery for distress should not be permitted where there was a breach of contract in relation to the installation of an oil heater. It failed on the facts.
In Bernstein v Pamson Motors (Golders Green) Ltd [7] 2 All ER 220 the plaintiff bought a Nissan Laurel motor car. The car seized up as the oil supply to the camshaft was cut off. The plaintiff sought to return the car and get his money back. The court held that the plaintiff was entitled to damages for vexation.
In the above cases the plaintiffs were expressly or impliedly contracting to obtain peace of mind, comfort or amenity. The only exception to this analysis is, perhaps, Hobbs v London & South Western Railway — but even here it could be argued that the railway passengers were contracting to receive an easeful journey to their destination, not a long walk in the middle of the night. It is important to embark upon this analysis because the Court of Appeal has now held that damages for “anguish and vexation” are not generally recoverable in the law of contract unless it was the object of the contract to provide peace of mind and freedom from distress.
In Hayes v James & Charles Dodd (a firm) [0] 2 All ER 815 the purchasers of business premises were negligently reassured by their solicitors that the premises had the benefit of a right of way across back land. This statement was not true and when the neighbouring owner blocked off the rear access the business could not be run properly or resold without loss. In addition to other damages the trial judge awarded £1,500 to each plaintiff for “anguish and vexation”. The Court of Appeal held that the contract (with the solicitors) was an ordinary commercial contract and that it was not appropriate to award such damages. It seems, therefore, that in the law of contract the courts consider it to be within the contemplation of the parties that the owner-occupier of a house or flat will be vexed and distressed by any interference with his enjoyment of that property: the place where he eats, sleeps and has his being. On the other hand, the law expects the owner of a business to be stoical about late payment of money, loss of profits, or the utter destruction of his enterprise — even if this may lead to personal bankruptcy.
Finally, it is interesting to note that in the recent decision of Watts v Morrow [2] 2 EGLR 152 the Court of Appeal limited damages in distress to those occasioned by the physical state of the premises (the case concerned a surveyor’s breach of contract).
The Court of Appeal also reduced the award from £4,000 to £750 for each plaintiff because it considered the former amount excessive. Moreover, in Branchett v Beaney [2] EGCS 15 the Court of Appeal held that there would be no award of damages for frustration, mental distress, injured feelings and annoyance in contract where an access road had been built in breach of contract of quiet enjoyment in a lease.
