Fletcher v Berriman

[2001] NSWSC 457

CITATION:	Fletcher v Berriman [2001] NSWSC 457
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC 12990/2000
HEARING DATE(S):	31 May 2001
JUDGMENT DATE:	6 June 2001
PARTIES :	Geoffrey Craig Fletcher (Plaintiff) Desmond Arthur Berriman (Defendant)
JUDGMENT OF:	Master Harrison

LOWER COURT JURISDICTION :	Local Court
LOWER COURT FILE NUMBER(S) :	169 of 1996
LOWER COURT JUDICIAL OFFICER :	Magistrate Johnson

COUNSEL :	Mr John Wilson (Plaintiff) Mr P Newton (Defendant)
SOLICITORS:	Messrs M F Twemlow & Co (Plaintiff) Brock Partners (Defendant)
CATCHWORDS:	Appeal from Local Court - psychological distress for breach of contract - failure to supply horse and carriage for wedding
LEGISLATION CITED:	Local Courts (Civil Claims) Act 1970 (NSW)
CASES CITED:	Allen v Kerr & Anor (1995) Aust Torts Reports 81-354 Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 129 Baltic Shipping Company v Dillon (1992-93) 176 CLR 344 Hamlyn v The Great Northern Railway Company (1856) 1 H & N 408 [156 ER 1261] Addis v The Gramophone Company Limited (1909) AC 488 Devries v Australian National Railways Commission (1993) 177 CLR 472 State Rail Authority of New South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588
DECISION:	(1) The decision of the Magistrate dated 13 October 2000 is affirmed; (2) The summons is dismissed; (3) The plaintiff is to pay the defendant's costs as agreed or assessed.

10

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

MASTER HARRISON

WEDNESDAY, 6 JUNE 2001

12990/2000 - GEOFFREY CRAIG FLETCHER v
DESMOND ARTHUR BERRIMAN

JUDGMENT (Appeal from Local Court -

failure to supply horse and carriage for
wedding)

1   MASTER: By summons filed 10 November 2000 the plaintiff seeks firstly, an order quashing the order made on 13 October 2000 by the Local Court at Kiama in matter No 169 of 1996 issued at Waverley; secondly an order that in matter No 169 of 1996 issued at Waverley Local Court, judgment be entered for the plaintiff in the sum of $40,000; thirdly, and order that the defendant pay the plaintiff’s costs in matter No 169 of 1996 issued at Waverley Local Court; and fourthly, an order that the respondent pay the respondent pay the appellant’s costs of this appeal.

2 At the outset, it may be helpful to make some brief comments concerning the remedy pursued by the plaintiff. Section 69(2) of the Local Courts (Civil Claims) Act 1970 (NSW) permits a party who is dissatisfied with a judgment as being erroneous in point of law to appeal to this Court. The onus lies on the plaintiff to demonstrate that there has been an error of law. What is a question of law (as opposed to a question of fact) was considered, inter alia, in Allen v Kerr & Anor (1995) Aust Torts Reports 81-354 and Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 155-156.

3   On 13 October 2000 the learned Magistrate Paul Johnson, awarded the amount of $450 to the plaintiff for damages. The Local Court Magistrate ordered that each party pay their own costs. The grounds of contention are firstly, that an adjustment disorder is a recognisable psychiatric injury; secondly, that damages for a recognisable psychiatric injury are recoverable in an action for breach of contract; thirdly, that damages for mental distress associated with a psychiatric illness are recoverable in an action for breach of contract; fourthly, that the plaintiff suffered an adjustment disorder and mental distress as a result of the defendant’s breach of contract; fifthly, that the contract for supply of the horse drawn wedding carriages for the plaintiff’s wedding was a contract to provide pleasure, entertainment, enjoyment or relaxation; sixthly, that the plaintiff was entitled to recover for the disappointment and distress occasioned by the defendant’s breach of contract and seventhly, that the defendant should pay the plaintiff’s costs of the Local Court proceedings.

4 The plaintiff has made a prior application pursuant to s 69 of the Local Courts (Civil Claims) Act 1970 in relation to this matter. On 22 May 2000 Adams J heard the appeal. His Honour remitted this matter back to the Local Court Magistrate for the determination of damages according to law.

5   The plaintiff’s claim for damages comprised of two elements, firstly for the sum of $450 being the difference between the cost they would have paid for the hire of the horse and cart and the amount they paid for the hire of limousines; secondly, the first plaintiff Mr Fletcher claimed damages for psychological distress he suffered as a result of the failure to supply the horse drawn carriages. In this regard he relied upon the reports of two psychiatrists namely Dr Ali (who has since been deregistered) and Dr Dyball. Dr Ali stated (t 10.45):

“The patient was exposed to what appears a broken agreement for their service provider at a sensitive juncture of his life, just before his long awaited and well planned marriage. He sustained a nervous shock-like reaction, as described above, and subsequently psychiatric symptomatology affecting himself and the relationship changed between him and his wife, Tanya. The diagnosis is that of adjustment disorder with features of anger, anxiety and depression. There are also some features consistent with the post-traumatic stress disorder, however this full diagnosis cannot be made. The personal and social functioning has been disrupted, especially in the area of closeness, mutual anger, blaming each other, reduction in the ability of the wife to rely on her husband.”

6   and Dr Dyball stated:

“Any psychiatric diagnosis is dependent upon the history, for Mr Fletcher presents in an apparently normal, stable manner. On the history as given, however, he has suffered in degree a minor adjustment disorder with some degree of anxiety, anger and guilt and I refer to this. It is a sense of guilt, seemingly, that keeps it alive in his mind, for despite reassurances by his wife that she does not blame him, he continues to feel that she may. Obviously he has sought no treatment and is unlikely to now. He is obviously fit for work and of course has been working. The material that you have sent me in relation to his completion of documentation is, of course, different to the history that he gives and if your material is correct then his sense of guilt may be due to the fact that he did not get the documents in on time.”

7   The Magistrate quoted both these passages in his judgment. Hence there was evidence that the plaintiff suffered an adjustment disorder as a result of the failure to secure the horses and carriages to carry he and his future wife to their wedding.

8   The learned Magistrate analysed the judgments in the High Court decision of Baltic Shipping Company v Dillon (1992-93) 176 CLR 344. The starting point of the analysis is Hamlyn v The Great Northern Railway Company (1856) 1 H & N 408 at 411 [156 ER 1261 at 1262] where it was said:

“Generally in actions upon contracts no damages can be given which cannot be stated specifically and the plaintiff is entitled to recover whatever damages naturally result from the breach of contract but not damages for the disappointment of mind occasioned by the breach of contract”.

9   That decision was confirmed by the House of Lords in a later case Addis v The Gramophone Company Limited (1909) AC 488. That case regarded a dismissal of an employee and the House of Lords held that the plaintiff, that is the dismissed employee, could not recover in an action for damages for breach of contract in respect of his injured feelings and loss of employment prospects arising from the harsh and humiliating manner of his dismissal.

10   However, since Addis there has been an emergence of cases where damages have been awarded for non financial loss for breach of contract. These cases fall within exceptions to the general rule as stated in Hamlyn and confirmed in Addis.

11   The High Court (bench of seven) in Dillon considered the issue of whether damages for disappointment and distress should be awarded for breach of contract.

12   Brennan J held that if a contract contained a promise, express or implied, that the promisor will not cause the promisee, or will protect the promisee from, disappointment of mind, if such disappointment resulting from breach of contract is not too remote to be compensable.

13   Mason CJ, Toohey and Gaudron JJ at 365 and 366 held:

“Damages for disappointment and distress are not recoverable unless they proceed from physical inconvenience caused by the breach or unless the contract is one the object of which is to provide enjoyment, relaxation or freedom of molestation.”

14   Deane and Dawson JJ at 381 stated:

“The general rule that a plaintiff is not entitled to recover for disappointment and distress occasioned by a breach of contract does not apply to cases where the disappointment and distress have been caused by breach of a contract under which the defendant agreed to provide pleasure, entertainment or relaxation or to prevent molestation or vexation.”

15   McHugh J at 405 said:

“The application of basic principle concerning the awarding of damages for breach of contract requires an award of damages for distress or disappointment where it is an express or implied term of the contract that the promisor will provide pleasure or enjoyment or personal protection for the promisee. Unless this Court were to refuse to follow Burton, Hobbs and Bailey as well as the decision in Stedman and Athens-MacDonald Travel Service Pty Ltd ., damages for distress or disappointment consequent upon the suffering of physical inconvenience as the consequence of a breach of contract.”

16   McHugh J went further and stated:

“Furthermore, because damages for personal injury may be recovered in an action for breach of contract and because psychiatric illness constitutes personal injury, damages for mental distress associated with a psychiatric illness or physical injury must also be recoverable in an action for breach of contract”.

17   However, in Dillon, the plaintiff did not claim damages for a diagnosable psychiatric illness but rather for disappointment and distress. McHugh J continued:

“In the result, the Court should not presently reject the general rule enunciated in Hamlin and substantially confirmed in Addis . At the same time, it should recognize that damages for distress or disappointment are recoverable in an action for breach of contract if it arises from breach of an express or implied term that the promisor will provide the promisee with pleasure or enjoyment or personal protection or if it is consequent upon the suffering of physical injury or physical inconvenience. The question whether the general rule enunciated in Hamlin should be overruled can be considered when the Court has heard full argument on the question.”

18   Thus the view of McHugh JA in relation to the second passage quoted of McHugh J’s judgment (above) is obiter dicta.

19   The High Court held that damages for distress and disappointment are recoverable if the object of contract was to provide pleasure, entertainment and relaxation.

20   The critical issue to be determined by the Magistrate was whether the contract was one under which the defendant agreed to provide pleasure, entertainment or relaxation. If the contract did not fall into that category no damages can be awarded for mental distress and disappointment or psychiatric illness.

21   At t 9.50 the first plaintiff gave the following evidence:

“I was very panicky actually, thinking that we weren’t going to have any transport at all for the wedding, I had spent $16,000 on this wedding and it has all just fallen apart at the last minute, and since the whole wedding was, had the whole them of the horse and carriages. I was naturally panicky, stressed and very upset.”

And at t 10.34:

“We did yes, whenever an argument arose or anything it was always brought up by Tanya, “you can’t even organise the transport for the wedding” and whatnot, it is mostly only in rage when she brought it up.”

22   The first plaintiff in evidence referred to the horses and carriages as being “transport for the wedding”.

23   The Magistrate stated:

“I’m not satisfied that the case comes within that exception to the general rule because before it could some within that exception the Court would have to find that the contract - and I’m quoting from what Mason, J said in Baltic on page 365, “The contract is one, the object of which is to provide enjoyment, relaxation or freedom from molestation”. Certainly compliance with the contract would have been the provision of the horse and carriage or the horse and carriages and that would have fulfilled the expectations of Mr Fletcher. But the object, really, was to provide transport of a certain type to convey the parties to the wedding.”

24   On the evidence it was open to the learned Magistrate to find that the contract was for transport as distinct for one to provide pleasure, entertainment or relaxation. Hence the contract did not fall within an exception to the general rule. It cannot be said that the Magistrate acted on evidence inconsistent with facts incontrovertibly established by the evidence - see Devries v Australian National Railways Commission (1993) 177 CLR 472 per Brennan, Gaudron and McHugh JJ at 479 and State Rail Authority of Wales South Wales v Earthline Constructions Pty Ltd (in Liq) (1999) 160 ALR 588. There is no error of law. The decision of the Magistrate dated 13 October 2000 is affirmed. The summons is dismissed.

25   Costs are discretionary. At the hearing the plaintiff’s solicitor did not seek to attack the costs order made in the lower court. A judicial officer exercises a wide discretion when awarding costs. In any event, the Magistrate addressed the correct principles and the decision he made was open to him. In these proceedings the plaintiff should pay the defendant’s costs as agreed or assessed.

26   I might add that had it been determined that the contract was one of pleasure, entertainment and relaxation the plaintiff’s psychiatric evidence would have in my view established the plaintiff’s entitlement to damages.

27   The orders I make are:

(1) The decision of the Magistrate dated 13 October 2000 is affirmed.

(2) The summons is dismissed.

(3) The plaintiff is to pay the defendant’s costs as agreed or assessed.
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Last Modified: 06/07/2001