JUDGMENT OF SHERIFF PRINCIPAL A.L. STEWART, Q.C.
GLASGOW CITY COUNCIL
Act: D O'Carroll, Advocate, instructed by the Govan Law Centre
GLASGOW. 4 August 2005.
The Sheriff Principal, having resumed consideration of the appeal, Allows same; Recalls the interlocutor complained against to the extent that it sustains the defenders' and respondents' seventh plea in law, dismisses the pursuer's and appellant's case seeking damages for inconvenience and distress and withholds from probation the averments in support thereof contained in lines 1-11 of article 7 of the condescendence; of consent Repels the second plea in law for the defenders and respondents; before answer Allows to parties a proof of their respective averments, under reservation of the defenders' and respondents' first plea in law; Finds the defenders and respondents liable to the pursuer and appellant in the expenses of the appeal; Allows an account thereof to be given in and Remits the same when lodged to the auditor of court to tax and report; Certifies the appeal as suitable for the employment of junior counsel.
This is an appeal by the pursuer (hereinafter referred to as 'the appellant') against an interlocutor of the sheriff dated 29 April 2005 whereby he sustained the defenders' (hereinafter referred to as 'the respondents') seventh plea in law and excluded from probation certain averments by the pursuer in article 7 of the condescendence on the ground that the head of damages to which they referred had prescribed. The sheriff allowed a proof before answer in respect of the remaining averments.
The case is an action of damages for breach of contract. The appellant craves payment of a total sum of £4,500. The appellant was a tenant of the respondents. The appellant avers that the respondents had certain duties both at common law and under the Housing (Scotland) Act 1987 in respect of the house let to her, that they failed in these duties whereby the house suffered excessive dampness, and that the appellant suffered damage as a result thereof. Article 7 of the condescendence contains the averments relating to damages. It is in the following terms:-
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 two 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 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 pursuer's claim relates to a continuing act in terms of section 11 of the Prescription and Limitation (Scotland) Act 1973 as amended ..., namely an ongoing breach of contract which ended with the termination of the tenancy in or around March 2001. Reference is made to Section 6 and Schedule 1 of the 1973 Act which provides for a time limit of five years for claims being raised. The effective date of citation in this cause was 10 August 2004. The defenders' averments in answer are denied save insofar as coinciding herewith.
The appellant's third plea in law states:-
The pursuer having suffered loss, inconvenience and damage as a result of the breaches of duty by the defenders, is entitled to reparation as craved.
The respondents' seventh plea in law states:-
The pursuer's claim in respect of inconvenience being time-barred in respect of the Prescription Limitations (sic) (Scotland) Act 1973, the action insofar as it relates to inconvenience is irrelevant and should be dismissed.
The statutory provisions
Section 6(1) of the Prescription and Limitation (Scotland) Act ('the 1973 Act') provides that an obligation to which the section applies prescribes after five years. Schedule 1 to the 1973 Act defines the obligations to which that section applies. Paragraph 1 of the Schedule states that section 6 applies ... '(d) to any obligation arising from liability (whether arising from any enactment or from any rule of law) to make reparation'. However, paragraph 2 of the same schedule provides that 'notwithstanding anything in the foregoing paragraph, section 6 of this Act does not apply ... (g) to any obligation to make reparation in respect of personal injuries within the meaning of Part II of this Act ...'.
In Part II of the Act section 17 provides for a three years time bar in respect of 'an action of damages where the damages claimed consist of or include damages in respect of personal injuries'. Section 22(1) of the 1973 Act provides that ' "personal injuries" includes any disease and any impairment of a person's physical or mental condition'.
Section 11(1) of the 1973 Act provides that any obligation to make reparation for loss, injury or damage caused by any act, neglect or default shall be regarded for the purposes of section 6 as having become enforceable on the date when the loss, injury or damage occurred. Section 11(2) provides that in the case of a continuing act, neglect or default, where loss, injury or damage has occurred before the cessation of the act, neglect or default, the loss, injury or damage shall be deemed for the purpose of section 11(1) to have occurred on the date when the act, neglect or default ceased.
The sheriff's decision
The sheriff held that the averments in article 7 of the condescendence down to and including the words 'defects in the subjects' should be excluded from probation as they related to a head of damage which could properly be described as 'personal injuries'. Because more than three years had elapsed between the end of the appellant's tenancy and the commencement of the present action any claim in respect of personal injuries was time-barred. He therefore sustained the respondents' seventh plea in law. He founded particularly on two cases to which the respondents had referred him: Fleming v Strathclyde Regional Council 1992 SLT 161 and Barclay v Chief Constable, Northern Constabulary 1986 SLT 562.
Submissions for the appellant
After narrating the background to the case counsel referred me to the case of Fleming, cit supra, which he said was the mainstay of the defenders' case. He had the following comments to make about the case. First, it was an action of damages for delict and not breach of contract. Secondly, in it there was an explicit claim for solatium, which was the appropriate term for damages for personal injuries. Thirdly, the case of Barclay, cit supra, which was particularly founded on by the defenders in Fleming was also a case in which a specific claim for solatium was made and where the pursuer had suffered what could clearly be described as mental distress. Fourthly, insofar as the case might be relevant to a case based on breach of contract, the Lord Ordinary had erred in conflating personal suffering with inconvenience. Inconvenience was distinguishable from distress. Fifthly, the Lord Ordinary did not have the benefit of a full citation of authority in respect of cases based on a claim for inconvenience and on the nature of such a claim. Finally, in any event, the case was not a binding authority.
Counsel submitted that a claim for inconvenience, such as was set out in the part of article 7 of the condescendence which the sheriff had excluded from probation, was not to be equiperated to a claim for personal injuries or solatium. In a case of breach of contract an individual pursuer might have claims in respect both of personal injuries and of inconvenience. The remedy for inconvenience was what had sometimes been referred to as 'nominal damages'. By contrast a non-natural pursuer could claim only damages in respect of inconvenience.
Counsel then referred me to a number of authorities in support of this submission.
McBryde's The Law of Contract in Scotland (2nd edition) at paragraphs 22-95 to 22-101 dealt with the matter in some detail. At paragraph 22-98 the learned author clearly distinguished a claim for distress from a claim for inconvenience. The one gave rise to a claim for solatium and the other to a claim for nominal damages. Counsel also referred me in this context to the Scottish Law Commission's Discussion Paper on Remedies for Breach of Contract, No. 109 (1999), paragraphs 8.4 and 8.23 to 8.28. These authorities led to the conclusion that, in a case of breach of contract, an individual pursuer could have three possible heads of damage: (1) inconvenience; (2) personal injuries; (3) patrimonial loss.
The leading case on the matter was Webster & Co. v The Cramond Iron Co. (1875) 4R 752. There it had been held that the pursuers were entitled to damages for inconvenience even though they were unable to prove specific pecuniary loss.
'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.' (per Lord President (Inglis) at p. 754).
Next counsel referred me to Murray v Marr (1892) 20R 119 in which the pursuer was awarded damages of £25 for what Lord Trayner described (at p. 127) as 'annoyance and inconvenience'.
In Aarons & Co. Ltd v Fraser the Second Division, disagreeing with the Lord Ordinary, awarded damages of £10 (described by the court as 'general damages') for trouble and inconvenience.
The next case referred to by counsel was the English Court of Appeal decision in Jarvis v Swans Tours Ltd  1 QB 233. Counsel put this forward as an example of a case where a court had awarded damages for mental upset which could well be described as a form of personal injury, thus distinguishing it from the present case.
The next two cases to which I was referred were both cases in which a pursuer had been found entitled to damages for inconvenience. Smith v Park 1980 SLT (Sh. Ct) 62 was a decision by Sheriff Croan to award £75 in respect of a defective car. His decision was upheld on appeal by Sheriff Principal Gimson. In Gunn v NCB 1982 SLT 526 Lord Mayfield in the Outer House awarded the pursuer £300 for inconvenience in respect of a damp house in a case which had certain similarities to the present.
McArdle v Glasgow District Council 1989 SCLR 19 was a decision of Sheriff Jardine in this court. It too was concerned with a damp house. The sheriff awarded damages of £750 because the pursuer had 'experienced prolonged and distressing inconvenience of a substantial kind'. He described these damages as solatium. He did not seek to distinguish between solatium as truly damages for personal injury and damages for inconvenience. Counsel submitted that this was probably because the evidence had dealt with both heads together and there was no need to separate them. No question of time bar arose in that case.
In Quinn v Monklands District Council 1995 SCLR 393, yet another case dealing with a damp house, Sheriff Simpson had correctly distinguished between inconvenience on the one hand and damage to health on the other. He awarded a lump sum of damages, which he described as 'solatium' 'on the basis of gross inconvenience and the flat being, in general, a depressing place in which to live because of the dampness'. 'In my opinion an appropriate award of solatium for the pursuer in respect of inconvenience and general depression is £2,500.'
Finally, counsel referred me to Wilkie v Brown 2003 SC 573, an appeal from the sheriff court to the Second Division. The case is primarily concerned with whether the sheriff had been entitled to refuse to make an award in respect of remedial work, but the question of nominal damages was raised. In that regard the Lord Justice Clerk (Gill), after commenting on the dictum of Lord President Inglis in the Webster case, quoted above, said (at p. 579B):
A more accurate expression of the principle, in our view, is that if the pursuer in a case of this kind [sc action of damages for breach of contract] fails to prove that he has suffered any loss at all, there is then injuria sine damno and no award of damages can be made (cf Aarons & Co. v Fraser, Lord Murray at p. 143). But if there is proof that by reason of the breach of contract the pursuer has been put to trouble and inconvenience, the pursuer can be said to have suffered damage of a kind for which a nominal award may be appropriate (Webster & Co. v Cramond Iron Co., at p. 754; Aarons & Co. v Fraser, at pp. 140, 143).
Returning to the pleadings in the case counsel submitted that the averments struck out by the sheriff were almost exclusively of inconvenience. The word 'discomfort' might be ambiguous, but it could be referable to discomfort arising from inconvenience. Similarly the phrase 'social embarrassment' might refer to distress or to inconvenience. In respect of both these matters an inquiry into the facts was necessary before their true meaning could be ascertained.
The sheriff had been quite wrong to conclude that the averments in article 7 related to personal injuries. The cases of Fleming and Barclay founded on by the sheriff were not in point. They related to what was properly described as personal injuries. They could be distinguished on their facts. In Fleming the plea in law specifically referred to 'solatium'.
It was true that in article 7 in the present case the word 'solatium' was used. This was an error on the part of the pleader. It should be treated as pro non scripto. It did not sit happily with what had gone before. There was no further reference to solatium in the pleadings. The respondents' seventh plea in law (which the sheriff had sustained) did not mention 'solatium'. It used the term 'inconvenience'.
The appellant's claim was in respect of inconvenience and not personal injury. Therefore it was subject to the five years prescriptive period under section 6 of the 1973 Act. The interlocutor of the sheriff should be recalled insofar as it refused probation to the first part of article 7. The whole pleadings should go to proof.
Counsel concluded by moving me to certify the appeal as appropriate for the employment of junior counsel and to find that any award of expenses should follow success.
Submissions for the respondents
Mr Farrell stated that the respondents' position was the same as it had been before the sheriff, viz the averments in question were truly averments of personal injury. The sheriff had been correct to found on the Fleming case. Distress and inconvenience should be treated together.
The appellant's submissions to the sheriff had not been based on the concept of nominal damages for inconvenience. There the distinction which had been drawn was that between an action based on breach of contract and one based on negligence. That argument had properly been rejected by the sheriff.
In article 7 of the condescendence the appellant stated in terms that her claim included solatium. That demonstrated that her claim was in respect of personal injuries and not one for nominal damages.
In McArdle v Glasgow District Council, cit. supra at p. 23 the sheriff had properly used the word 'solatium'. Inconvenience could fall within the definition of personal injury as had been held in Fleming. That is what the appellant was in effect accepting in saying that her claim was for solatium.
In Quinn v Monklands District Council, cit. supra the sheriff said that he was awarding 'solatium' for inconvenience. That was correct as inconvenience in that case was an example of personal injury.
Mr Farrell conceded that in certain circumstances a party might be entitled to 'nominal damages' for trouble, worry and inconvenience. But that did not mean that in every breach of contract case a pursuer could claim such damages by using the word 'inconvenience'. In the present case the appellant's claim was clearly one for personal injury.
In Wilkie v Brown, cit. supra the court had pointed out that there was no record for a claim for nominal damages. That was so in the present case too. The appellant's claim was for solatium and patrimonial loss and nothing else.
It was accepted that the case of Fleming was not binding on the court, but it was persuasive authority and the facts of the case were sufficiently close to the present to make it relevant. It was of no great significance that Fleming was a case based on delict.
In all the circumstances the appeal should be refused.
Mr Farrell did not oppose Mr O'Carroll's motion to certify the appeal as appropriate for the employment of junior counsel, and he agreed that expenses should follow success.
Further submissions for the appellant
Counsel submitted, first, that in the cases of McArdle and Quinn the sheriffs had used the term 'solatium' wrongly. In both cases it was clear from the context that they were referring to a claim for inconvenience. In neither case was the sheriff using the word as a term of art. Neither case had raised a question of limitation and therefore the sheriffs' rather loose use of the word should not be criticised. It made no difference to the analysis of the question.
Secondly, counsel submitted that, if the appellants' claim was ambiguous, if it could be either a claim for nominal damages or a claim for solatium (which was not accepted) the only proper course was to allow the case to proceed to proof before answer on the whole pleadings.
Finally, counsel turned to the appellant's third plea in law. The respondents had conceded that it was habile to encompass claims both for nominal damages and for solatium. Therefore there was no issue arising from the fact that the phrase 'nominal damages' was not used in the pleadings. In any event, there was no duty on the part of a pleader to characterise all heads of claim by means of an appropriate label. A pursuer had to plead that he had suffered loss. The precise label to be attached to that loss was a matter for legal analysis rather than one of pleading. In the present case there were clear averments of inconvenience and not of personal injury.
Discussion and decision
In the line of cases referred to by counsel for the appellant from Webster & Co. v The Cramond Iron Co., cit. supra onwards courts have accepted that damages may be awarded for 'inconvenience'. These cases demonstrate, in my opinion, that inconvenience should be compensated for by an award of damages different and independent from any award in respect of 'distress'. The latter terms is capable of being described as a form of personal injury because it may involve 'impairment of a person's mental condition' to use the terminology of section 22(1) of the 1973 Act. It is noteworthy that section 22(1) does not attempt fully to define 'personal injury' but merely states what that term is to include. Therefore the words must otherwise be given their ordinary and natural meaning. To describe 'inconvenience' as a form of 'personal injury' seems to me to give these words a meaning which is far beyond their common everyday connotation.
Mr Farrell very properly founded strongly on the fact that in article 7 of the condescendence the appellant avers that her 'claim is for solatium and economic loss'. At first sight this might be seen to present a difficulty for the appellant. However, in my opinion, too much should not be made of the fact that the pleadings use a term which is usually associated with damages for pain and suffering, i.e. damages for personal injury. I consider that there is force in counsel's submission that the use of 'solatium' in that context does not sit all together happily with what has gone before. While some of the words used in the earlier part of article 7, such as 'discomfort' and 'embarrassment', may be capable of interpretation as forms of personal injury, others, such as 'inconvenience' itself, cannot, in my opinion, be capable of such interpretation. Nor is the pleader in the present case the only person to have used 'solatium' in a loose sense. The sheriffs in the cases of McArdle and Quinn also used that term when it is clear that the damages which they were awarding were not entirely for personal injury suffered by the pursuer but also for inconvenience. Therefore I do not attach any great significance to the use by the appellant of this term.
I am clearly of opinion that what the appellant has averred in the first part of article 7 is inconvenience, albeit that certain of the terms used by her may be ambiguous. Inconvenience is different from personal injury as the line of cases founded on by counsel for the appellant demonstrates.
I do not consider that the case of Barclay v Chief Constable, Northern Constabulary, cit. supra is relevant to the present case. In that case the Lord Ordinary held that injury to feelings suffered by a person who claimed to have been wrongly arrested amounted to a personal injury. I have no difficulty in accepting that decision as correct, but in the present case the court is not concerned with injury to feelings.
The facts in Fleming v Strathclyde Regional Council, cit. supra are closer to those of the present case but, with the greatest respect to the Lord Ordinary, I find it difficult to accept his analysis of the pursuer's case. The Lord Ordinary states (at p. 163):
'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.'
In that passage the Lord Ordinary conflates 'inconvenience' and 'distress' as if they were one and the same thing. He may perhaps be excused for doing so because the pursuer's pleadings in Fleming stated rather baldly that 'the pursuer was unable to occupy the house for several days and she was distressed and inconvenienced as a result'. Be that as it may, in my opinion, distress and inconvenience are clearly not the same. They are two entirely different concepts. One can be distressed without suffering inconvenience and equally one can be inconvenienced without being distressed. I am therefore not prepared to accept that the passage which I have just quoted from Fleming, which is stated in general terms, is a correct statement of the law. The sheriff relied on it for the decision which he reached. In my view he was not entitled to do so. I should say that I have a good deal of sympathy with the sheriff as he was not addressed at all on the same line of authority as was placed before me.
It follows then that, as the appellant's claim is not for personal injury and it was raised within less than five years from the date when she left the flat which she rented from the respondents, it is not time-barred. I have therefore recalled the sheriff's interlocutor so far as it sustained the respondents' seventh plea in law and excluded the first eleven lines of article 7 from probation. I have allowed a proof before answer on the whole pleadings, reserving the respondents' first plea in law, which is a general plea to the relevancy. If, after proof, it is held that any part of article 7 does in fact relate to personal injury, the existence of that plea should be sufficient to exclude damages in respect of that part.
In the course of the debate before me I observed that the respondents' second plea in law had not been disposed of. That plea states:-
The pursuer's averments being irrelevant et separatim lacking in specification, should not be remitted to probation.
In my opinion, it is quite inappropriate that any form of enquiry should be allowed with such a plea still extant. Questions of what averments can and cannot be remitted to probation must be resolved before any proof is allowed. I suggested to Mr Farrell that that plea should be repelled and he accepted that that should be done.
As there was no opposition to Mr O'Carroll's motion for the sanction of junior counsel I have granted it. Parties were agreed that expenses should follow success, and I have therefore found the appellant entitled to the expenses of the appeal.