Distress and inconvenience heads of claim forming part of a property-related court action has become ever more common in Scotland and so are enquiries from clients seeking guidance on this subject. Here Niall Sheerins provides some guidance for dealing with these claims in Scotland.
In Scots law (unlike in England & Wales), distress and inconvenience are separate heads of claim.[1]
Distress is deemed to be a negative emotion suffered on the part of a claimant following an unfortunate or inconvenient event or series of events. Where the claimant is afflicted on merely a sentimental basis may be better described as a claim for mere “disappointment” which in general Scots law will exclude.[2]
For a claimant to be successful in a claim for distress, they require to demonstrate that: (i) their physical or mental state was impaired by an unfortunate or inconvenient event; and (ii) that this led to other physical or psychiatric conditions, for which damages can be awarded[3].
A properly formulated distress claim forms part of a personal injuries claim: meaning it is subject to a different set of rules, including a time bar period, than other tortious (delictual) or contract cases.[4]
An improperly formulated distress claim, where the claimant is afflicted on merely a sentimental basis may be better described as a claim for “disappointment” which in general Scots law will exclude.[5]
Inconvenience on the other hand, which may be incorrectly described as “distress” or “distress and inconvenience”, sounds in damages not because it is a species of personal injury (like actionable distress), but because it is a recoverable head of general damages for breach of contract, whether the claimant is a natural person capable of suffering personal injuries or a body corporate which is not.[6]
Damages for inconvenience are recoverable where the claimant has suffered foreseeable physical inconvenience and discomfort caused by a breach. This was the case in Peebles v Rembrand Building Merchants Limited, a case which concerned a contract for the supply of roof tiles.
Peebles sought “tiles of a particular anthracite colour and uniform appearance”.[7] The tiles supplied by Rembrand did not meet this specification but fulfilled the primary purpose of the contract being the provision of modern, wind and watertight roofing material. It was decided that Rembrand’s breach caused Peebles inconvenience, as they (1) had to live with a roof which they found aesthetically unattractive; and (2) were put to trouble in attempting to have the problem rectified. It was also decided that Peebles had failed to mitigate the loss they suffered in terms of this inconvenience by refusing Rembrand’s second offer to rectify the error by repainting the tiles.
Their “necessarily” imprecisely calculated damages were, therefore, confined to a three-year period between the date of supply of the tiles and the refusal to permit a further recoating attempt. In accordance with previous judgments the sum awarded was restrained to the modest[8], but not nominal[9] amount of £1,500.
Where claims are presented for “distress and inconvenience” in Scotland, it is important to analyse the content of the claim to accurately determine its nature, i.e. actionable distress or inconvenience. Most of the time it will be the latter. Making that distinction is crucial because the two heads of claim are subject to different time limits and procedural rules and the available damages can differ significantly.
If you would like to discuss this topic further, then please get in touch.
Niall Sheerins - Solicitor and Regional Special Interest Group member
Email: NSheerins@keoghs.co.uk
[1] Mack v Glasgow City Council, 2006 S.C. 543 (2006)
[2] Farley v Skinner [2002] AC 732, per Lord Clyde at Para 753C
[3] Simmons v British Steel PLC, per Lord Hope of Craighead at Para 24
[4] Mack v Glasgow City Council, per Lord MacFadyen at Para 2
[5] Farley v Skinner [2002] AC 732, per Lord Clyde at Para 753C
[6] Mack v Glasgow City Council, per Lord MacFadyen at Para 17
[7] Peebles v Rembrand Building Merchants Limited [2017] SC DUN 28 per Sheriff Collins QC at Para 90
[8] Watts v Morrow [1991] 1 WLR 1421, per Lord Justice Bingham
[9] Mack v Glasgow City Council, per Lord MacFadyen at Para 7
Nial Sheerins
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