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 a 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 illness or mental distress is the difficulty in determining the monetary equivalent of mental illness or mental distress and there is no way to estimate or calculate damage resulting from mental illness or mental 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 abroad 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 that 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 abroad based on what had been advertised. When the family 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 disappointment 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.