Newell et al. v. Canadian Pacific Airlines Ltd.
74 D.L.R.
(3d) 574
Summary:
The plaintiffs (Newell) wanted to take their dogs
on the plane to
The plaintiff sued for breach of contract for damages flowing from “anguish, loss of enjoyment of life and sadness”. The defendant's were aware of the fragile state of health of the plaintiffs and were aware of the plaintiff’s attachment to and concern for their dogs. The special circumstances of the contract were clear to the defendant at the time it entered into the contract with the plaintiffs. It was foreseeable that should the dogs be harmed anguish, unhappiness and inconvenience would result. Therefore the plaintiffs were entitled to recover damages for such loss.
Full Judgment:
BORINS CO.CT.J.:—This is an action based upon an alleged breach of
contract made by the defendant with the plaintiffs whereby the defendant agreed
to carry in a safe manner from
The evidence of the witnesses who testified on behalf of the plaintiffs and the evidence of Mr. Hoffman, an employee of the defendant, establishes and I so find, that the following events took
place. Prior to
The plaintiffs were advised that
the dogs would be placed in one of the four cargo compartments of the aircraft
which are situated in its belly beneath the passenger compartment. Representatives
of the defendant assured the plaintiffs that the dogs would arrive safely in
Unfortunately, when the flight
arrived in
Prior to
were extremely distressed as a result of the death of Bon Bon and serious illness of Patachou. In addition, Mrs. Newell was most concerned with the effect of this incident upon the health of her husband who had recently suffered a heart attack.
When it came time for the
plaintiffs to return to
It would appear that at the date of
the trial Patachou had not yet fully recovered from
the effect of the flight to
The cause of the death of Bon Bon and the illness of Patachou was carbon dioxide poisoning. Both dogs had been placed in a cargo compartment in which had also been placed a quantity of vaccine packed in dry ice. Dry ice is solid carbon dioxide which, at a certain temperature, thaws out and emits carbon dioxide in a gaseous state which, in sufficient concentration, will cause the death of an animal such as Bon Bon. Exhibit 2, entitled "C.P. Air Regulations" with respect to the acceptance of cargo shipments provides, inter alia, that "animals must never be loaded in the same aircraft compartment as Dry-Ice". This document serves as a manual to those employees of the defendant responsible for the acceptance of shipments and the loading of them on board aircraft. In three different locations ex. 2 contains the warning that live animals and dry ice must not be placed in the same belly compartment of an aircraft.
When the defendant accepted the two
dogs on
The defendant has admitted that the
cause of the death and illness to the dogs was the fact that they were placed
in the belly compartment of the aircraft in close proximity to dry ice. It also
admits that it had a contractual duty to carry safely the plaintiffs' animals
from
(1) The amount of the defendant's liability with respect to the special damages claimed by the plaintiffs;
(2) The defendant's liability to compensate the plaintiffs for their mental suffering resulting from the death and illness of their pet dogs.
Counsel for the plaintiffs and the defendant are agreed, with respect to the first issue, that if I find that there is a limitation to be placed upon the amount of special damages for which the defendant admits liability, special damages would amount to $560.
Consideration of the first issue involves the interpretation and application of several of the articles found in the Carriage by Air Act, Sch. 1, which is a translation of the Warsaw Convention, 1929, and amendments thereto found in Sch. III, which introduces The Hague Protocol [September 28, 1955]. It is agreed by counsel that the flight in question was an international flight and that the Warsaw Convention, 1929 and The Hague Protocol apply and they further agree that the defendant's liability issues from art. 18(1) of the Warsaw Convention, 1929 which reads as follows:
(1) The carrier is liable for damage sustained in the event of the destruction or loss of, or of damage to, any registered baggage or any cargo, if the occurrence which caused the damage so sustained took place during the carriage by air.
(Italics added.)
Counsel for the parties also agree that the defendant does not escape liability by virtue of the provisions of art. 20(1) of the Warsaw Convention, 1929 which states:
(1) The carrier is not liable if he proves that he and his agents have taken all necessary measures to avoid the damage or that it was impossible for him or them to take such measures.
The provision which it is agreed may limit the liability of the defendant with respect to special damages to the sum of $560 is found in art. 22(2) of the Warsaw Convention, 1929, as deleted and replaced by The Hague Protocol, and which reads as follows:
(2)(a) In the carriage of registered baggage and of cargo, the liability of the carrier is limited to a sum of two hundred and fifty francs per kilogramme, unless the passenger or consignor has made, at the time when the package was handed over to the carrier, a special declaration of interest in delivery at destination and has paid a supplementary sum if the case so requires. In that case the carrier will be liable to pay a sum not exceeding the declared sum, unless he proves that that sum is greater than the passenger's or consignor's actual interest in delivery at destination.
(b) In the case of loss, damage or delay of part of registered baggage or cargo, or of any object contained therein, the weight to be taken into consideration in determining the amount to which the carrier's liability is limited shall be only the total weight of the package or packages concerned. Nevertheless, when the loss, damage or delay of a part of the registered baggage or cargo, or of an object contained therein, affects the value of other packages covered by the same baggage check or the same air waybill, the total weight of such package or packages shall also be taken into consideration in determining the limit of liability.
(Italics added.)
The plaintiffs submit that the defendant cannot rely on the limitation of liability set out in art. 22(2) for the following reasons:
(1) The defendant having acted "recklessly and with knowledge that damage would probably result", is thereby prevented from relying on art. 22(2) by the provisions of art. 25 of The Hague Protocol which reads as follows:
The limits of liability specified in Article 22 shall not apply if it is proved that the damage resulted from an act or omission of the carrier, his servants or agents, done with intent to cause damage or recklessly and with knowledge that damage would probably result; provided that, in the case of such act or omission of a servant or agent, it is also proved that he was acting within the scope of his employment.
(Italics added.)
(2) In the alternative, if art. 25 is found to be inapplicable the defendant is nevertheless prevented from relying on art. 22(2) for the following reasons:
(i) If it is found that the dogs were "cargo" within the meaning of that word as used in art. 22 and art. 9 of The Hague Protocol, then art. 9 would apply because there is no evidence that the defendant issued an air way-bill and thus prevent the defendant from limiting its liability. Article 9 provides as follows:
If, with the consent of the carrier, cargo is loaded on board the aircraft without an air waybill having been made out, or if the air waybill does not include the notice required by Article 8, paragraph (c), the carrier shall not be entitled to avail himself of the provisions of Article 22, paragraph (2).
(Italics added.)
(ii) If it is found that the dogs were "baggage" within the meaning of that word as used in arts. 22 and 4 of The Hague Protocol, then art. 4 would apply because there is no evidence that the defendant issued a baggage check and thus prevent the defendant from limiting its liability. Article 4 reads as follows:
(1) In respect of the carriage of registered baggage, a baggage check shall be delivered, which, unless combined with or incorporated in a passenger ticket which complies with the provisions of Article 3, paragraph (1), shall contain:
(a) an indication of the places of departure and destination;
(b) if the places of departure and destination are within the territory of a single High Contracting Party, one or more agreed stopping places being within the territory of another State, an indication of at least one such stopping place;
(c) a notice to the effect that, if the carriage involves an ultimate destination or stop in a country other than the country of departure, the Warsaw Convention may be applicable and that the Convention governs and in most cases limits the liability of carriers in respect of loss of or damage to baggage.
(2) The baggage check shall constitute prima facie evidence of the registration of the baggage and of the conditions of the contract of carriage. The absence, irregularity or loss of the baggage check does not affect the existence or the validity of the contract of carriage which shall, none the less, be subject to the rules of this Convention. Nevertheless, if the carrier takes charge of the baggage without a baggage check having been delivered or if the baggage check (unless combined with or incorporated in the passenger ticket which complies with the provisions of Article 3, paragraph (1) (c)) does not include the notice required by paragraph (1)(c) of this Article, he shall not be entitled to avail himself of the provisions of Article 22, paragraph (2).
(Italics added.)
Whether the defendant is entitled to reply on the limiting provisions in art. 22(2) can be dealt with most conveniently by considering first the plaintiffs' second, or alternative, submission. This submission requires a determination of whether the dogs are to be considered as cargo or baggage and, if so, whether a way-bill or baggage check, respectively, was issued by the defendant to the plaintiff Paul Newell. In my view the resolution of this issue is to be found in the evidence with respect to how the defendant itself regarded the dogs. Exhibit 7 is a copy of certain pages of the Local and Joint International Passenger Rules Tariff No. 2 C.T.C. (A), No. 89, issued by Canadian Pacific Airlines, Limited. This exhibit contains excerpts from the defendant's rules and regulations with respect to the checking of a passenger's baggage. It is clear from the various provisions of rule 9 that the defendant regards pets, including dogs, which accompany a passenger as part of that passenger's baggage. Rule 9(E)(6) reads:
Accompanied Pets. The weight of accompanied pets, when accepted, including the containers carried, will not be included in the free baggage allowance of
the passenger and the passenger will be assessed the applicable excess baggage weight charge.
Rule 9(I) provides for the collection from the passenger of excess weight charges at the point of origin for the journey. In my view ex. 7, and ex. 1, the "Excess Baggage Ticket" issued by the defendant to Mr. Newell clearly demonstrate that the defendant regarded the dogs as baggage. I, therefore, find that for the purposes of this case the dogs were baggage within the meaning of the word as used in the various articles of the Warsaw Convention, 1929 and The Hague Protocol set out above. It follows that for the purposes of this case that since the dogs were "baggage" they could not also be "cargo" and accordingly art. 9 of The Hague Protocol has no application.
Can the defendant rely on the provisions of art. 4 of The Hague Protocol to limit its liability under the provisions of art. 22(2) of The Hague Protocol? Article 4(1) provides that with respect to the carriage of "registered baggage, a baggage check shall be delivered" which is required to contain certain information including advice with respect to the carrier's limitation of liability. Article 4(2) provides that "if the carrier takes charge of the baggage without a baggage check having been delivered ... he shall not be entitled to avail himself of the provisions of Article 22, paragraph (2)" which, in this case, would limit the amount of the defendant's liability to $560. Is there any evidence that the defendant issued to the plaintiffs a baggage check as required by art. 4? It is true that the defendant issued a document described as an "Excess Baggage Ticket" (ex. 1) but, as pointed out earlier, this document clearly states on its face that it is not the baggage check described by art. 4. However, art. 4 relieves the carrier from printing on a baggage check the various information required by art. 4(1)(a), (b), (c), including advice with respect to limitation of liability, if the baggage checkis "combined with or incorporated in the passenger ticket which complies with the provisions of Article 3, paragraph (1)". Exhibit 6 is the form of the passenger ticket issued by the defendant to all passengers during the period relevant to this case. This document bears the title "Passenger Ticket and Baggage Check". Reading this document together with ex. 4, Mr. Newell's airline ticket, it is clear that ex. 6 contains the information which by art. 4(1) is to be printed on a baggage check. It is also clear that ex. 6 complies with the requirements of art. 3(1). Thus, I find that ex. 6 is both a passenger ticket and a baggage check as defined by arts. 3 and 4 of The Hague Protocol and it follows that the defendant did in fact issue Mr. Newell with a baggage check with respect to the dogs as required by art. 4 and which contained the information required by the article. Accordingly, I find that unless the plaintiffs are able to bring themselves within the provisions of art. 25 the de-
fendant is entitled to rely on the limitation of liability set out in art. 22(2).
I proceed now to consider the application of art. 25. Counsel for the plaintiffs submits that his clients are entitled to rely on the provisions of this article to recover the entire amount of their special damages and general damages because they have satisfied the onus contained in the article. Plaintiffs' counsel submits that it has been proved that the damages resulted from an act or omission of the defendant:
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done recklessly; |
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with knowledge that damage would probably result, and |
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(3) that the act or omission was that of a servant or agent of the defendant acting within the scope of his employment.
In support of this submission, the plaintiffs rely on certain evidence of Ronald H. Hoffman, the ramp service manager of the defendant in February, 1974, given on his examination for discovery.
Mr. Hoffman explained that the DC8 aircraft which carried the plaintiffs and their dogs contained four cargo compartments situated in the belly of the aircraft. Compartment 2 was designated for the carriage of live animals and the dogs were in this compartment together with a shipment of vaccine packed in dry ice. The shipment of vaccine had been loaded onto the aircraft before the dogs. He explained that three different departments of the defendant were responsible for loading the aircraft -- cargo services, passenger services and ramp services. The cargo services department accepted the vaccine shipment and its members were aware that it was packed in dry ice. The passenger services department checked in the plaintiffs and accepted their dogs. The ramp services department is responsible for loading the aircraft and one duty of that department is to make certain that animals and dry ice are not placed in the same compartment. However, the cargo services department failed to inform the ramp services agent responsible for loading flight No. 561 that the vaccine had been loaded into compartment 2. He stated further:
The personnel at the aircraft saw the containers and vaccine going on [the aircraft] with the indication of dry ice. And this did not register on them because at the time they didn't have the animals ... when the animals showed up to be loaded, it still did not register on them, there was a danger condition in relation to the animals ... But basically what happened is that the individual responsible for planning the loading of that aircraft was not aware of these two conditions, the existence of the dogs or the existence of the dry ice ... We had a communications failure ...
Mr. Hoffman added that the "cargo manual", ex. 2, indicated "that live animals should not be carried in the same compartment as any dry ice shipments". It is the responsibility of the cargo services department to notify the ramp services department of the fact that a
shipment of dry ice is to be loaded on the aircraft so that the ramp services department can take the necessary precautions. This notification did not take place. The defendant did not learn that the animals and the dry ice were in the same compartment until the aircraft reached its destination in Mexico.
Does Mr. Hoffman's account of what occurred constitute an act or omission of the defendant "done ... recklessly and with knowledge that damage would probably result"? Counsel have been unable to find any authority defining "recklessly" as used in art. 25. However, my attention has been directed to the decision of Megaw, J., in Shawinigan, Ltd. v. Vokins & Co., Ltd., [1961] 3 All E.R. 396 (Q.B.). In that case the defendant agreed to carry a quantity of resin for the plaintiff. The contract was subject to the terms of the London Lighterage Clause which excluded the defendants from liability for loss or damage, including damage caused by unseaworthiness of craft, except damage caused by unseaworthiness where the defendants "knowingly or recklessly supplied an unseaworthy barge for the service at the time of the commencement of the voyage to the ship, wharf or quay to load". The defendant did not adequately inspect the barge which was to carry the plaintiff's resin. An adequate inspection would have disclosed that the barge was not seaworthy and would have prevented the damage that was subsequently occasioned to the plaintiff's goods. After reviewing several authorities Megaw, J., defined "recklessly" in the following manner at p. 403:
In my view, "recklessly" means grossly careless. Recklessness is gross carelessness -- the doing of something which in fact involves a risk, whether the doer realises it or not; and the risk being such having regard to all the circumstances, that the taking of that risk would be described as "reckless". The likelihood or otherwise that damage will follow is one element to be considered, not whether the doer of the act actually realised the likelihood. The extent of the damage which is likely to follow is another element, not the extent which the doer of the act, in his wisdom or folly, happens to foresee. If the risk is slight and the damage which will follow if things go wrong is small, it may not be reckless, however unjustified the doing of the act may be. If the risk is great, and the probable damage great, recklessness may readily be a fair description, however much the doer may regard the action as justified and reasonable. Each case has to be viewed on its own particular facts and not by reference to any formula. The only test, in my view, is an objective one. Would a reasonable man, knowing all the facts and circumstances which the doer of the act knew or ought to have known, describe the act as "reckless" in the ordinary meaning of that word in ordinary speech? As I have said, my understanding of the ordinary meaning of that word is a high degree of carelessness. I do not say "negligence", because "negligence" connotes a legal duty.
Adopting this definition of "recklessly" does the conduct of the employees of the defendant come within the definition? It is clear from the evidence of Mr. Hoffman that the employees of the cargo services department knew that if live animals and dry ice were placed in the same compartment there would be a risk that the ani-
mals would sustain death or injury. It is clear, as well, that they knew that to avoid communication of the fact that there was dry ice on the aircraft to the ramp services department might result in live animals being placed in the same compartment. The omission on the part of the employees of the cargo services department to communicate the presence of dry ice on the aircraft to the employees of the ramp services department occurred in the scope of their employment. In my view, the employees of the cargo services department were grossly careless in their failure to communicate with the ramp services department and their conduct was therefore reckless within the definition employed by Megaw, J.
Article 25 requires the plaintiff to prove as well that the act or omission of the defendant was also "done ... with knowledge that damage would probably result". As I have already stated ex. 2 clearly indicates the damage that would probably result if animals and dry ice were to be placed in the same compartment. Mr. Hoffman's evidence establishes that the defendant's employees knew of their instructions and the probable result of placing animals and dry ice in the same compartment. Thus, the plaintiff has proved that the defendant knew that damage would probably result from the failure of the cargo services department to inform the ramp services department of the presence of dry ice on the aircraft.
I find, therefore, that the plaintiffs have brought themselves within the provisions of art. 25 and that the defendant cannot rely on the limitation of liability contained in art. 22.
What, then, are the plaintiffs' damages? In Vassallo et al. v. Trans Canada Air Lines, [1963] 2 O.R. 55, 38 D.L.R (2d) 383, 84 C.R.T.C. 257, McRuer, C.J.H.C., accepted the submission of counsel that the statutory effect of the Carriage by Air Act, R.S.C. 1952, c. 45, and the Warsaw Convention, 1929 is to place the consignee in the position of the consignor and gives to the consignee a right to assert a contractual relationship with the carrier and that damages are to be determined under the well-established principles in actions based on breach of contract. Thus, as did McRuer, C.J.H.C., in the Vassallo case, I shall apply the oft-quoted passage from the judgment of Baron Alderson in Hadley et al. v. Baxendale et al. (1854), 9 Ex. 341 at pp. 354-5, 156 E.R. 145:
Now we think the proper rule in such a case as the present is this:--Where two parties have made a contract which one of them has broken, the damages which the other party ought to receive in respect of such breach of contract should be such as may fairly and reasonably be considered either arising naturally, i.e., according to the usual course of things, from such breach of contract itself, or such as may reasonably be supposed to have been in the contemplation of both parties, at the time they made the contract, as the probable result of the breach of it. Now, if the special circumstances under which the contract was actually made were communicated by the plaintiffs to the
defendants, and thus known to both parties, the damages resulting from the breach of such a contract, which they would reasonably contemplate, would be the amount of injury which would ordinarily follow from a breach of contract under these special circumstances so known and communicated.
With respect to what is referred to
by the plaintiffs as their special damages, the amount of $1,058.27
is claimed. Counsel for the defendant concedes that the plaintiffs are entitled
to $608.27, but takes issue with the amount of $450 claimed by the
plaintiffs for the purchase of a block of four seats so that they could return
the sick dog Patachou to
The plaintiffs' claim for general damages is found in para. 14 of the statement of claim which reads:
The defendant knew that the said dogs were of special value to the plaintiffs as cherished domestic pets to which loss or injury would and did cause anguish, loss of enjoyment of life and sadness to the plaintiffs as was foreseeable by the defendant herein.
Counsel for the plaintiffs submits
that they are entitled to recover damages for their mental distress caused by
the defendant's breach of its contract to carry Bon Bon
and Patachou safely to
Before discussing the application of these decisions to this case, it would be well to review the evidence with respect to the effect
upon the plaintiffs of the death of
Bon Bon and the serious illness of Patachou. Mrs. Newell explained how her husband discovered
the dogs lying on the floor of their cages in the baggage area of the airport
in
In Jarvis v. Swans Tours Ltd., supra, the Court held the plaintiff, who had booked a winter holiday with the defendant, was entitled to be compensated for his disappointment and distress at the loss of the entertainment and facilities for enjoyment which he had been promised in the defendant's brochure and which had not been entirely forthcoming to him. In his reasons for judgment Lord Denning, M.R., stated at pp. 237-8:
What is the right way of
assessing damages? It has often been said that on a breach of contract damages
cannot be given for mental distress. Thus in Hamlin v. Great Northern Railway
Co. (1856) 1 H. & N. 408, 411 PollockC.B. said
that damages cannot be given "for the disappointment of mind occasioned by
the breach of contract." And in
"for the mere inconvenience, such as annoyance and loss of temper, or vexation, or for being disappointed in a particular thing which you have set your mind upon, without real physical inconvenience resulting, you cannot recover damages."
The courts in those days only allowed the plaintiff to recover damages if he suffered physical inconvenience, such as having to walk five miles home, as in Hobbs' case; or to live in an over-crowded house, Bailey v. Bullock [1950] 2 All E.R. 1167.
I think that those limitations are out of date. In a proper case damages for
mental distress can be recovered in contract, just as damages for shock can be recovered in tort. One such case is a contract for a holiday, or any other contract to provide entertainment and enjoyment. If the contracting party breaks his contract, damages can be given for the disappointment, the distress, the upset and frustration caused by the breach. I know that it is difficult to assess in terms of money, but it is no more difficult than the assessment which the courts have to make every day in personal injury cases for loss of amenities. Take the present case. Mr. Jarvis has only a fortnight's holiday in the year. He books it far ahead, and looks forward to it all the time. He ought to be compensated for the loss of it.
(Italics added.)
In Jarvis v. Swans Tours Ltd it was held by this court that damages for the loss of a holiday may include not only the difference in value between what was promised and what was obtained, but also damages for mental distress, inconvenience, upset, disappointment and frustration caused by the loss of the holiday.
Leave to appeal to the House of
Lords was refused in the
Both the Jarvis case and the
Counsel for the solicitors urged that damages for mental distress were not recoverable. He relied on Groom v. Crocker, [1938] 2 All ER 394, [1939] 1 KB 194, and Cook v S, [1967] 1 All ER 299 at 302, 303, [1967] 1 WLR 457 at 461. But those cases may have to be reconsidered. In any case they were different from this. Here Wellers were employed to protect her from molestation causing mental distress -- and should be responsible in damages for their failure.
James, L.J., was of the same view as Lord Denning, M.R., and approached the issue in this manner at pp. 308-9:
In my opinion the position is very different under her second heading. It is well known and settled law that an action by a client against a solicitor alleging negligence in the conduct of the client's affairs is an action for breach of contract: Groom v Crocker. It is also the law that where, at the time of making a contract, it is within the contemplation of the contracting parties that a foreseeable result of a breach of the contract will be to cause vexation, frustration
or distress, then if a breach occurs which does bring about that result, damages are recoverable under that heading (Jarvis v Swan's Tours Ltd). Not in every case of breach of contract on the part of a solicitor towards his client will damages be recoverable under this head. It is only when the service or services contracted for are such that both solicitor and client contemplate that a failure by the solicitor to perform the contract will foreseeably occasion vexation, frustration or distress. An example of where damages were not recoverable is Cook v S. In that case Lord Denning said:
"In these circumstances
I think that, just as in the law of tort, so also in the law of
contract, damages can be recovered for nervous shock or anxiety state if it is
a reasonably foreseeable consequence. So the question became this: when a
client goes to a solicitor, is it a reasonably foreseeable consequence that, if
anything goes wrong with the litigation owing to the solicitor's negligence,
there will be a breakdown in health? It can be foreseen that there will be
injured feelings; mental distress; anger, and annoyance. But for none of these
can damage be recovered. It was so held in Groom v. Crocker on the same lines
as Addis v. Gramophone
That case is very different on its facts from the present. In the present case the application of "good sense" makes it abundantly clear that the client wanted action taken which would rid her of molestation and annoyance. It is in relation to that action that her contract with the solicitors required the exercise of proper skill and care on their part. Good sense indicates that it was foreseeable at the time of the contract that failure to enforce any remedy obtained to stop the molestation and annoyance would result in its continuance or the risk of repetition. Vexation, frustration and distress were therefore likely to result from a breach of contract in this case. Further, the feelings of the plaintiff are not merely the feelings of an unsuccessful litigant who is disappointed or annoyed at the outcome of the case which would not sound in damages. In my judgment the plaintiff brings herself within those circumstances in which damages under this head are recoverable. The learned circuit judge did not award her all the damages to which she was entitled in respect of the defendants' failure to enforce the injunction.
(Italics added.)
In addition to the three cases to which counsel for the plaintiffs has referred, there is the recent judgment of Lawson, J., in Cox v. Philips Industries Ltd., [1976] 1 W.L.R. 638 (Q.B.D.), to which reference was made by Lord Denning, M.R., in the Heywood case. In this case the plaintiff's employer, in breach of its contract of employment with him, removed the plaintiff from a responsible position to a position of less responsibility causing him to become depressed, anxious, frustrated and ill. Lawson, J., held, after referring to the Jarvis case, that the plaintiff was entitled to damages with respect to the defendant's breach of contract, stated at p. 644:
In my judgment this is a case where it was in the contemplation of the parties in all the circumstances that, if that promise of a position of better responsibility without reasonable notice was breached, then the effect of that breach would be to expose the plaintiff to the degree of vexation, frustration and distress which he in fact underwent.
I have had very helpful submissions from [counsel for the defendant] on this matter suggesting that damages for this kind of loss are really only appropriate when you lose a relative and the funeral procession does not turn up at the right time, or you acquire a wife and the photographer does not turn up at the right time, or you do not have the holiday you are promised. But I can see no reason in principle why, if a situation arises which within the contemplation of the parties would have given rise to vexation, distress and general disappointment and frustration, the person who is injured by a contractual breach should not be compensated in damages for that breach. Doing the best I can, because money can never really make up for mental distress and vexation -- this is a common problem of course in personal injury cases -- I think the right sum to award the plaintiff under that head is the sum of $:500.
From a consideration of the Jarvis,
Jackson, Heywood and Cox cases it is clear that in England the rule in Hadley
v. Baxendale, supra, permits a plaintiff to recover
damages in a proper case where in the contemplation of the parties vexation,
frustration and distress are likely to result and do in fact result from a
breach of contract. On the facts of the case before me it was, in my opinion,
clear to the defendant from the obvious concern of the plaintiffs with respect
to the welfare of their pets that should anything happen to them this would
likely cause the plaintiffs vexation, frustration and distress. On the evidence
it is very clear that the special circumstances of this case were brought home
to the defendant at the time it entered into the contract with the plaintiffs.
Thus damage to the plaintiffs' health, anguish, unhappiness and inconvenience
were a reasonably foreseeable consequence of the defendant's breach of
contract. Whether the plaintiffs are entitled to recover damages for their
mental distress depends on whether the law in
It would appear that Jarvis v.
Swans Tours Ltd. has been considered in only two reported cases in
substantially different from that for which he had contracted with the defendants. As a result the holiday plans of the plaintiff were largely frustrated and at the conclusion of his holiday he developed a nervous condition which required medical attention. Hewak, Co.Ct.J., awarded the plaintiff special damages occasioned by the breach of contract and, in addition, awarded general damages of $800 for the personal inconvenience, annoyance and frustration flowing from the defendants' breach of contract. In awarding general damages Hewak, Co.Ct.J., applied Jarvis v. Swans Tours Ltd. and Feldman v. Allways Travel Service, [1957] C.L.Y., 934.
The second case is Elder et al. v. Koppe (1974), 53 D.L.R. (3d) 705, 15 N.S.R. (2d) 688 (N.S.S.C.), the facts of which bear a resemblance to the "spoiled holiday" cases. The defendant agreed to rent to the plaintiffs a motor-home to be used, to the defendant's knowledge, for their annual holiday which the plaintiffs had planned to take together with three relatives. In breach of contract the defendant failed to provide the vehicle causing the plaintiffs inconvenience and disappointment. Cowan, C.J.T.D. [at p. 707] found that "both plaintiffs were distressed and upset, and they tried to make do with what they had, to provide a holiday for themselves and for the visiting relatives" and that the plaintiffs "lost their own enjoyment and the entertainment of the relatives". Chief Justice Cowan then reviewed the reasons for judgment of Lord Denning, M.R., in the Jarvis case and quoted, it would seem with approval, Lord Denning's view that in a "proper case" damages for mental distress can be recovered in contract. In the result the plaintiffs were awarded general damages of $400.
Counsel for the plaintiffs referred to the decision of Lacourciere, J., in Kolan v. Solicitor, [1970] 1 O.R. 41, 7 D.L.R. (3d) 481 (Ont. H.C.J.), where a solicitor was found to be in breach of his contractual obligation of exercising professional competence and due care in the course of acting for his client in a real estate transaction. The plaintiff claimed, inter alia, damage to her health flowing directly from the defendant's negligent breach of contract. It was undisputed that the plaintiff suffered physical illness and Mr. Justice Lacourciere viewed the issue as "whether such illness was reasonably foreseeable to the defendant at the time of the contract". After a review of several authorities, including Groom v. Crocker et al., [1938] 2 All E.R. 394, and Cook v. S., [1967] 1 All E.R. 299 (which were both discussed in Heywood v. Wellers), Lacourciere, J., seemed to be prepared to apply the principle of Hadley v. Baxendale had the facts of the case supported its application. This aspect of the case was disposed of by Mr. Justice Lacourciere in the following way at p. 52 O.R., p. 492 D.L.R.: "I am not prepared to find that the health breakdown of the plaintiff was a reasonably foreseeable consequence of the defendant's negligence, and I am not prepared
to award the plaintiff any damages
under that heading ...". This case was decided in June of 1969, more than
three years before the decision in the Jarvis case. An appeal by the defendant
in the Kolan casewas
dismissed, the Court of Appeal not being required to consider the issue of
damage to the plaintiff's health: [1970] 2 O.R.
686, 11 D.L.R.
(3d) 672 (Ont.
To the extent that one
conceptualizes damages for breach of contract in terms of commercial losses
only, there can be little quarrel with the proposition that, in ordinary
commercial settings, only commercial losses are as a rule within the
contemplation of the parties as a likely consequence of breach and so bargained
for within the Hadley v. Baxendale test. Prior to the
decision in Jarvis v. Swans Tours Ltd. the cases exhibited a very narrow view
with respect to the recovery of non-pecuniary damages. Addis v. Gramophone Co.,
Ltd., [1909 ] A.C. 488 -- a case that is passed over rather lightly by Lawson,
J., in Cox v. Philips Industries Ltd., supra -- was generally regarded as
authority for the proposition that injury to feelings and other non-material
loss is never compensable in actions for breach of contract. To this general
proposition certain exceptions were recognized. In actions for breach of
promise to marry damages were at large:
It is suggested by Professor John G. Fleming in an article "Damages for Non- Material Losses", Law Society of Upper Canada Special Lectures 1973, p. 1 at p. 23, "... that, instead of being exceptions to a categorical exclusion, breach of promise and bankers' dishonour are ... illustrations of a positive principle cautiously emerging that even non-material injury is compensable, so long only as it is foreseeable in the Hadley v. Baxendale sense". In my respectful opinion when Lord Denning, M.R., stated in the Jarvis case that "in a proper case damages for mental distress can be recovered in contract" he was equating "proper case" with the Hadley v. Baxendale test -- it was in the reasonable contemplation of the parties that if the defendant failed to provide what it had promised the plaintiff might sustain disappointment, distress, up-
set and frustration. That a "proper case" is not confined to "spoiled holiday" cases is clearly established by Heywood v. Wellers, supra. In that case the plaintiff engaged her solicitors in order to buy herself peace of mind and thus her mental distress which flowed from the breach of contract was not only foreseeable but was the very risk which it was the purpose of the contract to avoid. Then came Cox v. Philips Industries Ltd. where Mr. Justice Lawson applied the Hadley v. Baxendale test in holding that the damage suffered by the plaintiff was within the reasonable contemplation of the defendant. In the Kolan case, supra, in our own Courts Mr. Justice Lacourciere was prepared to apply the Hadley v. Baxendale test had he found that the facts of the case supported its application.
In a very helpful Note in 92 L.Q.R. 328 (1976), David Newell discusses the four recent English decisions to which I have referred. At p. 330 the author offers the following analysis:
Heywood v. Wellers reasserts the basic Hadley v. Baxendale principle. The question in relation to assessing damages for vexation in all contracts is whether vexation was a reasonably foreseeable consequence of the contractual breach. This will vary with the individual circumstances of each contract. In theory the courts have never denied the basic principles but in practice they have elevated the factual difficulty of establishing vexation as a reasonably foreseeable consequence of a breach of contract to a legal rule. This has meant that in certain classes of contract, especially employment contracts, it has been thought that the courts will never award damages for vexation. Addis v. Gramophone Co. Ltd. is the real origin of this approach.
The recent line of cases has reasserted the fundamental rule and should enable the courts to adopt a more flexible approach in the future. Vexation is a legitimate head of damages in all types of contract, provided it can be established to be a reasonably foreseeable consequence of the breach of contract. Addis v. Gramophone Co. Ltd. must be construed as a case where such foreseeability was not established.
It is my respectful opinion that
based upon this analysis there can be no difference between the law of
To return to the facts of the case
before me the question that must be asked is this: Was the contract such that
the parties must have contemplated that its breach might entail mental
distress, such as frustration, annoyance or disappointment? I would answer the
question in the affirmative. The contract was to safely carry the plaintiffs'
pet dogs from
boarded the aircraft that their dogs had been safely placed in the cargo area. I find that the contract was such that the plaintiffs and the defendant must have contemplated that if injury or death were to befall the dogs this might result in the plaintiffs suffering mental distress. The plaintiffs are therefore entitled to recover general damages in the sum of $500.
In the result, therefore, the plaintiffs will have judgment against the defendant for $1,558.27 and their costs of the action to be taxed in one bill of costs.
Judgment for plaintiffs.