EXTRA DIVISION, INNER HOUSE, COURT OF SESSION
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Lord Macfadyen Lord Wheatley Lord Penrose |
[2006] CSIH 18 XA99/05 |
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OPINION OF THE COURT delivered by LORD
MACFADYEN in APPEAL for the defenders in the cause ANGELA MACK (Assisted
Person), Pursuer and Respondent; against Defenders and Appellants. |
For the defenders and appellants: Dunlop; Gillian Lindsay.
For the pursuer and respondent: D. O'Carroll; Govan Law Centre.
Introduction
[1] This is an
action of damages for breach of contract, in which the pursuer alleges that the
defenders, as the landlords of a flat of which she was then the tenant, failed
over a period between January 1999 and March 2001 to fulfil their obligation to
keep the premises in a tenantable and habitable condition. She alleges that as a result she suffered
loss of two kinds, namely first the value of items of moveable property which were
damaged and had to be discarded, and secondly damages for "inconvenience".
The issue
[2] The issue which was debated before the sheriff, was then the
subject of appeal to the sheriff principal, and is now the subject of the
appeal to this court, is whether the claim, so far as laid in respect of
inconvenience, is a claim for "personal injuries". If it is, it is accepted by the pursuer that
it is time barred, by virtue of section 17(2)(a) of the Prescription and
Limitation (
[3] The sheriff,
having heard debate on the issue, by interlocutor dated
The averments
[4] The only part of the pursuer's pleadings of which it is
necessary to take note is the following passage from Article 7 of the
Condescendence:
"As a consequence of the defenders'
said breaches of duty, the pursuer has suffered loss, inconvenience and
damage. She has suffered the
inconvenience and discomfort of having to live in a house which was suffering
from severe water penetration, dampness and mould growth for a period of some 2
years and two months. She has suffered
the inconvenience of living in a house which was damp and smelly, and the
social embarrassment of living in such a house.
She has suffered the inconvenience of having had to complain to the
defenders. She has been required to
redecorate and clean the house due to water penetration and dampness. THREE THOUSAND ONE HUNDRED AND SIXTY POUNDS
(£3,160) is claimed in respect of the substantial inconvenience caused by the
defects in the subjects. The pursuer has had to discard items of
moveable property damaged due to dampness and mould growth. Said items are quantified at £1,340 and are
fully narrated in a Schedule of Losses which will be lodged in process and is
incorporated herein and referred to for its terms brevitatis causa. The pursuer's claim is for solatium and
economic loss arising from the defenders' breach of contract."
The part of that passage shown in italics contains the
averments making the part of the claim which the defenders do not maintain is
time barred.
The submissions
[5] Both Mr
Dunlop for the defenders and Mr O'Carroll for the pursuer, in discussing the
authorities, took as their starting point Webster
& Co v Cramond Iron Co (1875)
2 R 752, a case in which damages were claimed for the late delivery of a
consignment of pipes. Lord President
Inglis said, at 753:
"In these circumstances the
pursuers are entitled to damages for breach of contract to the extent to which
they have sustained damages, but to no greater extent. It lies on them to shew wherein they have
sustained damage";
and at 754:
"The contract and the breach
of it are established. That leads of
necessity to an award of damages. It is
impossible to say that a contract can be broken even in respect of time without
the party being entitled to claim damages - at the lowest, nominal damages. In directing a jury I should have stated that
principle, and told them that if they were satisfied that the pursuers were not
put to any serious inconvenience they might give the smallest imaginable sum,
but if they thought that, though no specific damage had been proved, the
pursuers had been put to serious inconvenience and trouble, then their duty was
to give something more substantial."
[6] Mr Dunlop
went on to cite Wilkie v Brown 2003 SC 573 in which Lord Justice
Clerk Gill, delivering the opinion of the court, pointed out (at 579A) that
there could be cases:
"where a breach of contract was to the immediate
benefit of the innocent party. In that
event it would be contrary to principle that the innocent party should be
entitled to nominal damages for the mere fact of the breach. ... But
if there is proof that by reason of the breach of contract the pursuer has been
put to trouble and convenience, the pursuer can be said to have suffered damage
of a kind for which a nominal award may be appropriate ... "
[7] These cases,
in our view, show that where a breach of contract causes the innocent party
inconvenience, that inconvenience may be reflected in an award of damages. We accept, of course, the qualification of
Lord President Inglis's observations made in Wilkie, namely that there may be cases in which the breach of
contract results in no loss. In that
event there is iniuria sine damno,
and thus no entitlement to damages, even nominal damages. We do not, however, understand Lord Justice
Clerk Gill's observations as confining an award of damages for inconvenience to
nominal damages, however severe the inconvenience may be proved to have
been. If there is loss in the form of
inconvenience the quantification of the appropriate award of damages is, as
Lord Inglis indicated, a jury question.
[8] In search of
the basis on which inconvenience caused by breach of contract may be regarded
as compensable, Mr Dunlop cited
"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. ...
But the rule is not absolute. Where the very object of the 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. ...
In cases not falling within this
exceptional category, damages are in my view recoverable for physical
inconvenience and discomfort caused by the breach and mental suffering directly
related to that inconvenience and discomfort."
[9] Mr Dunlop
also cited Farley v Skinner [2002] 2 AC 732 in which Lord
Clyde, after a review of authorities antedating
"As a matter of terminology
I should have thought that 'inconvenience' by itself sufficiently covered the
kinds of difficulty and discomfort which are more than mere matters of
sentimentality, and that 'disappointment' would serve as a sufficient label for
those mental reactions which in general the policy of the law will exclude."
In
the same case Lord Hutton said (at paragraph 57, page 762H):
"The authorities ... make it
clear ... that damages are recoverable for physical inconvenience and that it is
not necessary to establish any kind of physical injury or loss";
and
(at paragraph 58, page 763C):
"there is a distinction
between mere annoyance and disappointment at the failure of the other party to
carry out his contractual obligation and actual physical inconvenience and
discomfort caused by the breach."
[10] It does not seem to us that those dicta assist Mr Dunlop in establishing
the proposition that the pursuer's claim for damages for inconvenience must be
regarded as a claim in respect of personal injuries. The thrust of the distinction which is being
made is between an emotional reaction to the mere fact of breach of contract,
which does not sound in damages at all (save in the exceptional category of
case identified by Bingham LJ), and "inconvenience" (to use Lord Clyde's
terminology) or "physical inconvenience and discomfort" (to use the language used
by the other judges quoted), caused by circumstances brought about by the
breach of contract, which will sound in damages.
[11] The authority on which Mr Dunlop placed
greatest reliance was Fleming v Strathclyde Regional Council 1992 SLT
161. In that case the pursuer sought
damages for "distress and inconvenience" suffered as a result of damage to the
house tenanted by her caused by an ingress of floodwater. She called as defenders both the sewerage
authority and the housing authority, and alleged that the flooding was caused
by their negligence. The action was not
raised until after the expiry of the triennium.
The issue was therefore the same as in the present case, namely whether
the "distress and inconvenience" in respect of which the claim was made fell to
be regarded as "personal injuries" within the meaning of section 17(1) of the
1973 Act. The Lord Ordinary (Lord
Cullen) held that the averments of distress and inconvenience were averments of
personal injuries, and therefore excluded these averments from probation. The relevant passage in Lord Cullen's opinion
(at page 163D-F) was in the following terms:
"In regard to time bar,
however, I have come to the conclusion that the defenders' attack is well
founded. The expression 'personal
injuries' is, in my view, wide enough to cover various forms of personal
suffering, including distress and inconvenience. It is not necessary that 'personal injuries'
should be such as to involve a medical condition, let alone the need for
medical assistance. I would prefer to
treat distress and inconvenience as covered by the general meaning of 'personal
injuries' rather than by the expression 'mental condition' which appears in the
partial definition contained in section 22(1) of the 1973 Act. The phraseology of that provision suggests
that its intention was to make clear that 'personal injuries' extended to,
inter alia, various ensuing medical conditions."
Mr
Dunlop submitted that we should follow that approach. He pointed out that Lord Cullen's decision
was the subject of apparently favourable comment by Lord Prosser, albeit in a
somewhat different context, in McLelland
v Greater Glasgow Health Board 2002
SLT 446 at 450F.
[12] Mr Dunlop drew attention to the fact that
the pursuer's claim is expressed as including a claim for solatium. The loss resulting from inconvenience was
non-pecuniary. It was a loss which was
personal to the pursuer. The inconvenience
had impaired her mental and physical state by causing her discomfort and
embarrassment. If the claim sounded in
damages, it did so because the inconvenience had been experienced by the
pursuer physically, sensorily. The claim
was therefore for personal injuries.
[13] As we have already noted, Mr O'Carroll's
submissions for the respondents began at the same starting point as Mr
Dunlop's, namely Webster & Co v Cramond Iron Co. Taking that case as establishing that a claim
for damages for inconvenience might be made in a breach of contract case, Mr
O'Carroll referred also to Aarons &
Co Ltd v Fraser as an example of
the recovery of damages for inconvenience by a body corporate. He also cited Gunn v National Coal Board 1982
SLT 527 and McArdle v City of
[14] The main thrust of Mr O'Carroll's
submissions, however, was that Fleming was
wrongly decided. He pointed out that Fleming was a delictual rather than a
contractual case. He pointed out that
the averments in that case were of distress as well as inconvenience. He submitted that Lord Cullen had fallen into
the error of conflating distress and inconvenience. He submitted further that Lord Cullen did not
address the normal rule that mere distress, or any other emotional reaction,
does not ordinarily sound in damages. In
that connection he cited Simpson v Imperial Chemical Industries Ltd 1983
SLT 601, in which Lord Justice Clerk Wheatley (at page 602) accepted the
submission that;
"Damages are only awarded
for injuries which a fright has caused.
Causing fright is not per se causing bodily injury. While fright may cause an emotional reaction,
injury in respect of which damages can be claimed is not sustained unless and
until the fright has a consequence that can be described as an injury."
At
page 605 Lord Robertson quoted the following dicta:
"To found a claim of damages
for personal injury there must be physical injury of some kind";
and,
"The first hurdle which a
plaintiff claiming damages of the kind in question must surmount is to
establish that he is suffering, not merely grief, distress or any other normal
emotion, but a positive psychiatric illness."
Mr O'Carroll also cited Simmons
v British Steel plc 2004 SC (HL)
94, in which Lord Hope of Craighead said (at paragraph 24, page 101):
"Emotional
reactions such as anger, distress or fear do not sound in damages. But emotional reactions may lead to other
conditions, both physical and psychiatric, for which damages can be awarded."
On the basis of these dicta
Mr O'Carroll submitted that inconvenience caused by breach of contract
might lead to personal injury, but there was no suggestion in the pursuer's
averments that that had occurred in the present case. The pursuer's case, despite the unfortunate
use of the word "solatium", was a simple case of inconvenience caused to the
pursuer by the defenders' failure to maintain the pursuer's flat in a habitable
condition. There was no suggestion in
averment that the pursuer had suffered anything that might properly be regarded
as personal injury. Section 17 should
accordingly be held not to apply, and the sheriff principal's interlocutor
allowing a proof before answer at large should be adhered to.
Discussion
[15] "Inconvenience" may sound in damages in a
number of contexts. As Sheriff Principal
Wheatley observed in Purdie v Dryburgh 1999 Rep LR 68 at paragraph
12-25, page 74:
"It is perhaps unfortunate
that the term inconvenience is sometimes used in the assessment of solatium for
personal injuries and sometimes in the context of loss of amenity."
These
are not, however, the contexts with which we are concerned in this case. This is not a case where, as a result of
physical personal injury, the pursuer suffers inconvenience, of the sort which
would be suffered, for example, by a man who had lost a leg in a road
accident. The inconvenience suffered by
the pursuer is that she had to live in unpleasant conditions for a period of
time as a result, so it is alleged, of the defenders' failure to fulfil their
contractual obligation to keep the flat of which she was tenant in habitable
condition. There is, in our view, no
doubt that such inconvenience resulting from breach of contract sounds in
damages (Webster & Co).
[16] We do not consider that Mr Dunlop gains
any support for his contention, namely that the inconvenience averred by the
pursuer amounts to personal injuries, from the English cases which he
cited. These cases show that damages are
not recoverable for a mere emotional reaction to the fact of breach of contract;
but that damages are recoverable where the breach of contract brings about a
set of circumstances in which the pursuer suffers inconvenience. That such inconvenience has been referred to
as "physical inconvenience" does not imply that it must be regarded as personal
injury. Indeed in Farley v Skinner at
paragraph 57, Lord Hutton pointed out that while damages are recoverable for
physical inconvenience, it is not necessary to establish any kind of physical
injury. Mr Dunlop's attempt to argue
that the inconvenience of living in the damp house impaired the pursuer's
physical and mental state and must therefore be regarded as amounting to
personal injury is ill founded. There is
no averment that the pursuer's physical or mental state was impaired. A person may well live in adverse conditions,
which cause her inconvenience, discomfort or embarrassment, without any impact
whatsoever on her physical or mental health.
[17] In our opinion Fleming was wrongly decided.
In so far as Lord Cullen was influenced by the averment of distress
(which is not replicated in the present case), his reasoning failed to take
into account that mere distress or other emotional reaction does not sound in
damages and is thus not regarded as constituting personal injuries (Simpson; Simmons; see also Watts at
1445F). If the averment of distress is
removed from the picture, all that is left is inconvenience. Inconvenience sounds in damages not because
it is a species of personal injury, but because it is a recoverable head of
general damages for breach of contract, whether the pursuer is a natural person
(capable of suffering personal injuries) or a body corporate (not so capable) (Webster & Co; Aarons & Co Ltd). It is
unfortunate that the pursuer's pleadings use the term "solatium"; but we are of
opinion that we must look behind the language, and examine the true nature of
the pursuer's claim. On doing so, we
conclude that the claim is not properly to be regarded as a claim for personal
injuries.
Result
[18] In these circumstances we refuse the
appeal and adhere to the interlocutor of the sheriff principal dated