1HI6027 Week 5 – Discharge of contract and remediesSample question and answerHenrietta engaged a firm of solicitors to obtain an injunction to prevent a former malefriend from visiting her and making a nuisance of himself. An unqualified litigationclerk was given the matter to handle, but his incompetence over an 11-month periodcreated further embarrassment for Henrietta. Has Henrietta any claim against the firmfor ‘mental distress and upset’?Suggested answer:This question is concerned with damages and, in particular, the measure of damages.There are five steps that must be taken in order to determine if the injured party will recoverdamages and, if so, in what amount.Step 1 — Was there a breach?From the facts, it is clear that the firm has failed to complete what was agreed to in thecontract by using an unqualified litigation clerk to handle Henrietta’s case.Step 2 — CausationWas the loss suffered reasonably foreseeable as a consequence of the breach of contract? Thatis, the loss or damage would not have been suffered ‘but for’ the defendant’s breach. From thefacts, it seems clear that the damage Henrietta suffered was a direct consequence of the firm’sbreach.Step 3 — Remoteness of damageThe court must consider if the loss suffered is a usual and reasonably direct consequence ofthe breach. This is a question of fact based on determination of the two types of damagesidentified in Hadley v Baxendale (1854) 9 Ex 341.First, Henrietta will be able to recover any loss occurring from the breach of contract in theusual or normal course of things, that is, damage that is or should have been obvious.The second type, loss arising from special or exceptional circumstances, is only recoverable ifthe defendant had actual knowledge of the effect of the breach and accepted the risk. That is,the defendant will only be liable for damages that may reasonably be supposed to be in thecontemplation of the parties at the time the contract was made.Step 4 — Amount of damagesOnce the court has decided the question of remoteness and for what damages the defendantshould be liable, the third question to be decided is the measure of damages. The generalprinciple is that the injured party, Henrietta in this case, should be placed as close as possibleto the position they would have enjoyed had the breach never occurred. To this end, Henriettamust be able to show that she has suffered some loss if she is to recover ordinary damagesand, while courts will not generally grant damages for anything other than provable losses,Heywood v Williers (1976) 1 WLR 101, upon which the facts of this question are based,suggests that, in certain instances, the courts will allow claims for anxiety, disappointment,inconvenience, frustration, discomfort and mental distress. Not only should Henrietta be ableto recover damages for the amount she paid to the firm, but also damages for mental distress.Step 5 — Mitigation of damagesThe final question to be decided is the question of mitigation of damages—what steps, if any,could Henrietta have taken to minimise the damage? It is suggested here that there wouldhave been little, if anything, that Henrietta could have done to reduce the damage. The onus ison the defendants to prove that she failed to mitigate her losses but, as she was solely in theirhands, that would be difficult for them to prove. Therefore, Henrietta should succeed in herclaim.
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