Damages for Stress & Inconvenience

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Can you claim damages for stress and inconvenience?

 

Caselaw suggests that this type of non pecuniary/ physical loss needs to be considered under 3 quite distinct heads of loss:

Inconvenience and discomfort.

 

Where a professional’s negligence has caused discomfort as a direct result then damages are recoverable where that discomfort is reasonably foreseeable. In Wapshott v Davies Donovan & co [1996] PDLR 361, the claimants were awarded damages against their solicitors whose breach caused them to stay living in cramped conditions.

 

An example might be the existence of damp in a property and an award of compensation for inconvenience would be considered under this head of damage.

 

Mental stress.

 

The general point is that damages for mental stress as a result of a professional’s negligence are not recoverable so as not to alter the basic point that damages for loss of enjoyment are not recoverable under contract law. However, where it can be shown that the provision of enjoyment or the mitigation of stress go the basis of the contract then the breach will be so fundamental that damages for stress or loss of enjoyment would be recoverable.

 

In Heywood v Wellers 1976 Q.B 446 CA the defendant solicitors failed to successfully complete restraint proceedings and the claimant suffered further molestation as a result. Here the contract was to specifically prevent such molestation.

 

As stated, where it is a term of the contract to facilitate enjoyment then breach of this term will lead to an award of damages. Where the contract is of a commercial nature then damages are not recoverable for mental stress:

 

In Watts v Morrow 1991 1 WLR 1421, CA the defendant surveyor informed the claimants that the house they were to purchase was sound. It was not, and they ended up having to live in the house as a building site. Damages were not recoverable because it was a commercial contract and the provision of enjoyment was not reasonably foreseeable. However, if a surveyor was specifically instructed to check for a discomforting element (such as aircraft noise) and they failed to do so then damages for stress would be recoverable.

 

In Hayes v Janes and Charles Dodd 1990 2 All ER 815 CA, no recovery was permitted for the claimants anguish at their business closing down as a result of their solicitor’s negligence.

 

Stress causing physical injury.

 

Where the distress is so acute it damages the claimant’s health, then it is to be considered as physical injury and therefore treated as any other personal injury (and subject to 3 year limitation period).

 

Russell Simpson

Partner

January 2009