Professional negligence solicitor, Emma Slade assess the entitlement to claim damages for mental distress, anxiety and inconvenience in Professional Negligence and Breach of Contract Cases
If there has been damage caused by breach of contract or professional negligence then the innocent party is likely to find dealing with the results of that breach or negligence extremely stressful and worrying. Throw in the trials and tribulations of litigation and the justice system and it is no wonder that more and more people are asking whether, alongside their claim for damages for loss, they can also make a claim for distress and inconvenience. There are exceptions but surprisingly the answer to that is generally, “no”.
Bingham LJ gave the deciding decision in the 1993 case of Watts –v- Morrow by saying:
"A contract-breaker is not in general liable for any distress, frustration, anxiety, displeasure, vexation, tension or aggravation which his breach of contract may cause to the innocent party. This rule is not, I think, founded on the assumption that such reactions are not foreseeable, which they surely are or may be, but on considerations of policy.”
In short, it is a policy decision by the Courts not to routinely award compensation for anxiety, inconvenience and distress: if they allowed a claim for stress in simple cases, the fear it would open the proverbial floodgates to even more litigation.
However, there are exceptions to the rule and His Lordship identified the first one in the paragraph immediately after:
“But the rule is not absolute. Where the very object of a contract is to provide pleasure, relaxation, peace of mind or freedom from molestation, damages will be awarded if the fruit of the contract is not provided or if the contrary result is procured instead.”
He made it clear that damages for inconvenience and anxiety would only arise in very exceptional cases. One such case concerns a surveyor’s professional negligence claim, Farley –v- Skinner 2001, where the Court was prepared to agree that Mr Farley’s situation fell into this category. Mr Farley was about to purchase a large property which was located near Heathrow Airport. Part of his instructions to his surveyor was to ascertain whether the property was in the airport’s flight path, as he was concerned about noise. The surveyor assured him that it was not and the purchase went ahead only for Mr Farley to discover that his new home was indeed in a flight path. Mr Farley was extremely distressed by this, advising the Court he was unable to enjoy his property as a result. The Court concluded that mere disappointment (due to breach of contract) is insufficient for compensation to be awarded but in this case, Mr Farley’s express condition to the surveyor was such that one of the very points of the survey was to provide Mr Farley with peace of mind. He was therefore granted compensation for his distress..
A similar situation arose in the Watts –v- Morrow case: a surveyor told his client that the house the Claimants were buying was in good condition but in fact, substantial works needed to be carried out. This put considerable strain on their marriage due to the appalling conditions they had to live under. The Court agreed they should receive an award for their physical discomfort and hardship. They were granted £4,000 each, though on appeal it was reduced to £750.
There is a second category where claims for distress for physical inconvenience and discomfort can arise. In this instance, like the above, there does need to be a contract between the parties – the Courts will not grant damages if the Claimant is suing purely in negligence. A classic example is the 1996 case of Ruxley Electronics & Construction Ltd –v- Forsyth. The Claimant had been instructed to build a swimming pool for Mr Forsyth who was quite a tall gentleman. The specification for the pool was very specific but the Claimant built it 18” too shallow. Mr Forsyth claimed damages for the cost of remedying the defect as well as making a claim for distress.
In this instance, the House of Lords stated that the cost of cure was vastly disproportionate as it would mean the entire pool would have to be rebuilt. Mr Forsyth argued that as a result of the defect though, he was not able to enjoy the pool. The Court agreed and gave him damages for loss of amenity.
There is then a third category. This one is slightly more difficult to succeed upon and this is where the claim is brought in tort rather than contract. In those circumstances where there is not such an immediate relationship, the Court has ordered that firstly, any injury must be an actual psychiatric injury (rather than mere distress and inconvenience) and secondly, the likelihood of such injury should be foreseeable to the Defendant.
Despite these three categories, the issue of mental distress and inconvenience is constantly being considered by the Courts as more and more Claimants bring claims under these headings. But whilst there are more claims, from a practical stance, it would appear that the Courts are limiting what claims they are allowing through.
If you think that you might have a breach of contract or professional negligence claim, then please do not hesitate to contact professional negligence solicitor Emma Slade on 01392 423000 who would be happy to provide you with a FREE initial assessment of your case.
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