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29 October 2013

Damage to Chattels - No Room For Sentiment

The Claimant had been involved in quite a nasty crushing accident at work causing injury to the hand and fingers 

Fortunately the main trauma was sustained on the ring finger and the Claimant’s wedding ring prevented what would otherwise have been a complete severance of the finger. The wedding ring was bent out of shape and had to be cut off the finger. It could not be repaired. Indeed, even if it could have been repaired, the Claimant cannot now wear a ring on his ring finger.

The normal rule is of course that the measure of loss in relation to an unrepairable chattel is its market value prior to the tortious damage and net of any salvage value. Where a chattel requires replacement the Claimant is entitled to the cost of replacement net of salvage. The price of a new ‘like for like’ gentleman’s wedding ring minus the crushed one’s value as scrap gold was relatively trivial in this case. I had a look through caselaw to see if anything could be done to compensate the Claimant for the emotional/sentimental value of never again being able to wear the ring exchanged on his wedding day. Ultimately little could be done (this isn’t a blog about heroic victory against all odds!) - the Claimant was limited to damages for the monetary value of the ring and any emotional / sentimental loss was noted as a feature of the injury to be reflected in general damages. However I did learn the following in relation to damage to heirlooms, photographs, family pets and the like where value to Claimants is not properly reflected in their market value.

The starting point is the long established principle that the law does not recognise damages for anxiety, grief or depression falling short of a recognised psychiatric illness (1). If the Claimant can meet the diagnostic criteria of a recognised psychiatric condition then they can recover damages for nervous shock caused by seeing their chattels destroyed, so long as psychiatric damage was foreseeable and not too remote (2). Lord Bingham in Attia cited the example of where a scholar’s ‘life’s work and research was destroyed before his eyes because of the Defendant’s careless conduct’ (the case was decided before the digital age, presumably there would now be a significant finding of contrib for failing to have the work backed up). Attia also provoked controversy in the wake of the decision in Alcock v Chief Constable of South Yorkshire [1992] 1 A.C. 310. The Alcock decision set restrictions on claims by secondary victims on the basis of proximity. Following Attia the test for witnesses to property damage was one of foreseeability of psychiatric harm. After Alcock the law was in the questionable position of prioritising witnesses to the destruction of goods, albeit goods heavily invested with emotional attachment, above the claims of witnesses to the physical harm of human beings. The problem with Attia is that recovery for psychiatric illness is treated as parasitic on the duty not to negligently damage the property. But just because there is a duty not to cause physical damage to property, it does not follow that there has to be a duty in relation to other forms of loss such as psychiatric illness which are the foreseeable consequence of the damage. Damages for psychiatric harm can also be recovered by a Bailor for property destroyed in breach of bailment where  psychiatric harm is reasonably foreseeable consequent on the breach (3).

Further authorities in this area are to be found in the demise of much loved family pets in veterinary negligence cases. For a nation of supposed animal lovers English Law has little to offer those bereaved by the loss of the family pet in negligent circumstances. Unlike in America where the loss of ‘companion animals’ has resulted in significant compensatory awards, English Courts have not explicitly recognised such loss. Having said that, as Charles Foster notes in his article “Carelessness Killed the Cat” (4), contract law recognises damages for emotional disappointment and upset in circumstances such as disastrous holidays (5) or ruined wedding days. An ambitious Claimant might seek to extend the principle to breach of contract and/or negligence (usually) by vets leading to the loss of a pet.

So in summary, there remains little room for sentiment in the assessment of damages for damage to chattels. Only if witnessing the damage has caused nervous shock meeting the diagnostic criteria for a recognised psychiatric condition in circumstances where such harm was foreseeable might the Claimant succeed.

by Peter Harthan
7 Harrington Street

 

  1. McLoughlin v. O'Brian [1983] 1 A.C. 410
  2. Attia v British Gas PLC [1988] Q.B. 304
  3. Yearworth v North Bristol NHS Trust [2009] EWCA Civ 37
  4. PILJ 2009 No.74 (April) pages 15-17
  5. Jackson v Horizon Holidays [1975] 3 All ER 92 is the leading authority, however for a more ‘entertaining’ read of a truly horrendous cruise experience read Milner v Carnival Plc (t/a Cunard) [2010] EWCA Civ 389

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