The negligence of a professional can lead not only to financial loss on the part of their client but also to stress and anxiety, sometimes to the extent of causing depression or other psychiatric injury. Many claimants think that they should be awarded compensation not only for their financial loss and psychiatric injury but also for their frustration and distress but the English courts have kept a tight rein on awards of damages in these circumstances.
The latest decision to look at such awards is Shaw v Leigh Day where the court asked whether a solicitor should be able to represent a bereaved relative at an inquest negligently without paying damages for the distress they have caused. We review the law on this topic and offer practical guidance about the different approaches taken to compensation for distress and psychiatric injury resulting from professional negligence.
Damages for distress
General damages for breach of contract are as a rule not recoverable to compensate for injury to reputation, feelings or mental distress. A long-established line of authority including Watts v Morrow and Farley v Skinner holds that to fall within the exceptional category of cases in which damages for distress can be recovered, a major or important object of the contract must be to give pleasure, relaxation, or peace of mind.
Although the courts apply a strict approach to claims for damages for distress and inconvenience, a more relaxed attitude is taken by bodies such as the Legal Ombudsman and the Financial Ombudsman Service (see for example the FOS guidance about “compensation for trouble and upset”). We may also see such a head of loss in claims for damages for an insurer’s failure to pay within a reasonable period of time under the Enterprise Act 2016.
The holiday cases
Disastrous holidays invariably lead to successful claims for damages for distress. Disaster takes many forms, as we know from Jarvis v Swan Tours. In 1969 Mr Jarvis, a solicitor aged 35, booked onto a fortnight’s skiing holiday costing £63.45 having read in the hotel brochure of a houseparty with “Gemütlichkeit”, afternoon cake and a yodelling evening. He found himself the only member of the house party in his second week and the only English speaker, the only cakes for tea were little dry nut cakes and the yodeller was a local man in working clothes who sang four or five songs very quickly. Lord Denning clearly felt his pain and increased the award of damages for distress from £31.72 to £125.
More recently the Court of Appeal reduced awards of £7,500 to both Mr and Mrs Milner to £4,000 and £4,500 following their stressful and disappointing cruise on the Queen Victoria in Milner v Carnival plc (t/a Cunard). Ward LJ made the following comments after reviewing comparable awards for psychiatric damage in personal injury cases, for injury to feelings in cases of sex and race discrimination and damages for bereavement (for which the statutory limit is £12,980):
“Damages under these heads are of course not entirely comparable with damages in holiday cases. Physical inconvenience and discomfort is necessarily ephemeral. Disappointment, distress, annoyance and frustration are likewise the feelings one experiences at the time and which last painfully for some time thereafter. But one is not disabled, the psyche is not injured and one gets on with life. Every time one thinks back, one relives the horror but the reliving of it is transitory. There is no medical evidence here to indicate any recognisable psychiatric injury: distress falls into a different and less serious category and does not equate with bereavement”.
The property cases
The House of Lords upheld Mr Farley’s award of damages of £10,000 against the surveyor, Mr Skinner, for the distress and disappointment caused by the latter’s negligent failure to advise that the house he was proposing to buy was adversely affected by aircraft noise from Gatwick. He had specifically asked Mr Skinner to check this point because he liked to rise early and sit in the garden in peace. In fact the property was not far away from a navigation beacon (the Mayfield Stack) and at certain busy times, especially in the morning, the early evening, and at weekends, aircraft waiting to land at Gatwick would be stacked up maintaining a spiral course around the beacon until there was a landing slot at the airport.
The House of Lords followed their previous decision in Ruxley Electronics & Construction Ltd v Forsyth where Mr Forsyth had commissioned a swimming pool with a deep end of 7 foot 6 inches only to find that the builder had given him the standard 6 foot depth. The cost of removing the pool and rebuilding it was £21,000 and the difference in value between the pool as constructed and a pool of the correct depth was nominal. The House of Lords awarded him damages of £2,500 for loss of amenity, representing the subjective value to Mr Forsyth over and above the commercial value. Farley was followed in Herrmann v Withers LLP where damages of £2,000 were awarded against the defendant solicitors for their clients’ distress and inconvenience caused by their negligent advice concerning the purchase of a house in Kensington and its right of access to a communal garden.
What about negligent lawyers?
The general rule regarding lawyers is that if they do a bad job for their client, an award of damages will not be made to compensate for the emotional impact of their behaviour. An award may be made in what we have called a property case, as it was in Hermann v Withers, or perhaps where solicitors are negligently responsible for search and seizure or freezing orders being wrongly granted against individuals (see Abbey Forwarding Ltd v Hone) but the courts will be wary of opening the floodgates to such claims.
Orders of this kind have been made more readily in family cases. An award of £5,000 was made against the wife’s solicitors in a negligently handled divorce in Dickinson v Jones Alexander & Co. In Hamilton Jones v David & Snape damages of £20,000 were awarded where the negligent failure of the wife’s solicitors to take steps to preserve the note against the names of her children at the Passport Office in London had led to the father abducting them and taking them to Tunisia. Such significant awards are similar to those made in serious personal data breach cases at common law and under section 13 of the Data Protection Act 1998 such as TLT v The Secretary of State for the Home Department where the judge awarded damages of £12,500, noting that this figure was not out of kilter with awards for moderate psychiatric and psychological damage.
The decision in Shaw
In Shaw v Leigh Day Andrews J allowed the claimant’s appeal against the striking out of her claim for damages for distress against the defendant solicitors. Leigh Day represented the claimant at the inquest into her father’s death following a surgical procedure to implant a trans-aortic valve known as a TAVI procedure. They subsequently initiated clinical negligence proceedings against the hospital in question before coming off the record following the claimant’s increasing dissatisfaction with their performance.
The judge allowed the claimant’s appeal because “inquests have an emotional element that is unique, and absent from other forms of legal process. If the solicitor retained to put the necessary materials before the coroner and jury does not carry out his or her job with sufficient diligence, the client will never receive that comfort”. In her view, there is a wider public interest in determining whether a solicitor’s negligence could give rise to an award of damages for distress in these circumstances and she indicated support for the claimant’s case.
Damages for psychiatric injury
Where a professional’s negligence leads not just to distress but to mental illness such as depression or PTSD, general damages for personal injury can be awarded by the court. The claimant will need to provide expert evidence that they have developed a psychiatric injury or illness; this is not required if the claim is for damages for distress.
Claims of this kind have been made, for example in Bennett v Greenland Houchen & Co, Shade v The Compton Partnership and Begum v Neejam Llp, but in all of these cases the claimant faced problems concerning limitation. This is because a claim that includes a claim for damages for personal injury has a three-year limitation period under section 11 of the Limitation Act 1980. This problem is avoided if the claimant can persuade the court to extend the time limit under section 33. Alternatively, where the claim for damages for psychiatric injury can be clearly distinguished from the rest of the claim, the claimant may be able to abandon the personal injury element of their claim and thereby take advantage of the six year limitation period in contract and tort.
Professionals, particularly lawyers, and their insurers may be alarmed at the suggestion that damages for distress could be recovered by a claimant in a wider class of cases. It is fair to say, however, that even if the claim in Shaw succeeds, the decision is likely to be of limited consequence for those not involved with inquests since the cases referred to above already establish the right of a claimant to recover damages for distress against a professional where the object of the retainer was peace of mind.