Elements in a Contract 21
Remedies for a breach of contract are divided into common
law and equitable remedies. Common law remedies are divided into: -
i) Damages
ii) Restitution
Damages
In Robinson v Harman (1848) it was held that where a party
sustains loss by reason of a breach of contract, he is, so far as money can do
it to be placed in the same position, with respect to damages, as if the
contract had been performed.
In order to be awarded damages the aggrieved party must
satisfy the three following conditions: -
i) The party has suffered some type of loss as a result of
the breach.
ii) The loss is recognized as a loss that gives rise to
compensation.
iii) The loss must not be too remote or must be directly
foreseeable see The Wagon Mound (1)
Loss can be divided into financial loss or pecuniary loss
and non-financial or non-pecuniary loss as in instances where the defendant
suffers from a mental illness for example in the case of Condor v Baron Knights
(1966) where the plaintiff suffered from a mental illness as a result of long
hours of practice.
In Addis v Gramophone Co Ltd (1909) the plaintiff was
employed by the defendant company in Kolkata. He was subsequently wrongfully
dismissed and as a result he went through a great deal of mental anguish from
being shunned or avoided by the British Community in Kolkata. He brought an
action against the plaintiff for loss of earnings (income) and for mental
distress. The court held that the plaintiff was entitled to be compensated for
the loss of earnings but he was not entitled to be compensated for mental
distress.
The decision in Addis v Gramophone Co Ltd (1909) has to be
looked at in light of the earlier case of Hobbs v London and South Western
Railway Co (1875). The plaintiffs boarded a train that failed to deliver them
to the correct destination and they sued as a result. It was held that in
addition to the plaintiffs being able to recover for breach of contract, they
were also able to recover for the physical inconvenience of having to walk to
their destination.
Part of the problem with regards to mental illnesses or
mental distress is the difficulty in determining the monetary equivalent of
mental illnesses or mental distress and there is no way to estimate or
calculate damage resulting from mental illnesses or distress or translate it
into monetary terms.
In Bailey v Bullock (1950) the plaintiff was forced to live
temporarily in a smaller house because the defendant firm had failed to recover
his house. The court held that the plaintiff should be compensated for the
discomfort he’d incurred by living in a smaller home.
In Diesen v Samson (1971) the defendant was a photographer
who was hired to take photos of the plaintiff’s wedding but for some reason or
other the defendant failed to turn up. The distressed plaintiff sued and the
court awarded her damages for not being able to have any wedding photographs.
In Jarvis v Swans Tours Ltd (1973) the plaintiff had paid
for a holiday aboard and had based his decision on what had been printed on a
travel brochure. The plaintiff however, after he had arrived at the
destination, realized that the holiday was nothing like what had been
advertised in the brochure and he sued. The Court of Appeal held that the
defendant was not only entitled to be compensated for the monies he had paid but
was also entitled to be awarded some form of damages for the disappointment
that he had suffered.
In Jackson v Horizon Holidays (1975) the plaintiff booked a
holiday with his family aboard based on what had been advertised. When they
arrived at their holiday destination, they found that the living accommodations
were nothing like the advertisement and the conditions were unsatisfactory. As
a result, the plaintiff sued for compensation not only for himself but also for
his wife and family. It was held that the plaintiff was not only entitled to
recover for the disappointment that he’d suffered but was also able to recover
for the disappointed incurred by his wife and children.
In Heywood v Wellers (1976) the plaintiff was being stalked
by a former lover and she approached the defendants, a solicitors’ firm to take
out an injunction against her stalker. The defendants negligently failed to
take out the injunction and as a result the harassment continued and the
plaintiff suffered much distress. The court held that the plaintiff was
entitled to be compensated for the distress that she had suffered and was
accordingly awarded damages.
In Ruxley Electronics and Construction Ltd v Forsyth (1995)
the plaintiff employed the defendant to construct a swimming pool that was deep
enough to allow the plaintiff to dive - a hobby that gave him a great deal of
pleasure. The defendant did construct the pool but not to the specifications
that were stipulated or the depth that was required and the plaintiff sued on
the grounds that he would not feel save diving. The court awarded the plaintiff
damages for the loss of pleasure. The swimming pool was no doubt constructed to
allow the plaintiff some time to enjoy the things that he cherished and the
fact that he could no longer feel safe doing so gave rise to damages.
In Perry v Sidney Phillips and Son (1982) the plaintiff
employed a surveyor to inspect a house prior to purchase and was assured that
the house was in good order. Upon purchase the plaintiff discovered that the
house was in need of repair and many of the basic amenities that one would take
for granted weren’t working or functioning properly. The court held that in
addition to recovering for the lower value of the house the plaintiff was also
entitled to damages for the physical discomfort that he’d suffered by being
forced to live in a faulty house.
Similarly, in Farley v Skinner (2001) the plaintiff employed
a surveyor to inspect the land where he was about to construct a home to allow
him to enjoy the pleasures of the countryside after his retirement, with
regards to noise caused by air traffic because the land was close to Gatwick.
The surveyor upon inspection assured him that he would be able to retire in
peace and quiet. The plaintiff had his home constructed and when he moved in he
realized that the noise resulting from the air traffic was unbearable and he
sued. The plaintiff was awarded damages for distress that resulted from
aircraft noise because he had specifically employed the surveyor to assess the
impact of aircraft noise.
Copyright © 2019 by Dyarne Ward and Kathiresan
Ramachanderam
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