Jarvis v Swans Tours Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE EDMUND DAVIES,LORD JUSTICE STEPHENSON |
| Judgment Date | 18 October 1972 |
| Judgment citation (vLex) | [1972] EWCA Civ J1018-1 |
| Court | Court of Appeal (Civil Division) |
| Date | 18 October 1972 |
[1972] EWCA Civ J1018-1
The Master of The Rolls (Lord Denning)
Lord Justice Edmund Davies
Lord Justice Stephenson
In The Supreme Court of Judicature
Court of Appeal
On Appeal from the Judgment of His Honour Judge Corley
2nd March, 1972.
MR. S. N. PARRISH, instructed by Messrs. Maples Teesdale & Co., appeared for the Appellant (Plaintiff).
MR. P. THOMPSON, instructed by Messrs. Paisner & Co., appeared for the Respondents (Defendants).
Mr. Jarvis is a solicitor, employed by a local authority at Barking. In 1969 he was minded to go for Christmas to Switzerland, He was looking forward to a sking holiday. It is his one fortnight's holiday in the year. He prefers it in the winter rather than in the summer.
Mr. Jarvis read a brochure issued by Swan Tours Limited. He was much attracted by the description of Morlialp, Giswil, Central Switzerland. I will not read the whole of it, but just pick out some of the principal attractions: "House Party Centre with special resident host …. Morlialp is a most wonderful little resort on a sunny, plateau … Up there you will find yourself in the midst of beautiful alpine scenery, which in winter becomes a wonderland of sun, snow and ice, with a wide variety of fine ski-runs, a skating rink and exhilarating toboggan run … Why did we choose the Hotel Krone … mainly and most of all because of the. 'Gemutlichkeit' and friendly welcome you will receive from Herr and Frau Weibel … The Hotel Krone has its own Aiphutte Bar which will be open several evenings a week … No doubt you will be in for a great time, when you book this house-party holiday… Mr. Weibel, the charming owner, speaks English".
On the same page, in a special yellow box, it was said: " Swans Houseparty in Morlialp. All these Houseparty arrangements are included in the price of your holiday. Welcome party on arrival. Afternoon tea and cake for seven days. Swiss dinner by candlelight. Fondue party. Yodler evening. Chali farewell party in the 'Alaphutte Bar'. Service of representative".
Alongside on the same page there was a special note about ski-packs. Hire of Skis, Stocks and Boots – 12 days - £11.10.
In August, 1969, on the faithof that, brochure, Mr. Jarvis booked a 15-day holiday, with ski-pack. The total charge was £63.90, including Christmas supplement. He was to fly from Gatwick to Zurich on 20th December, 1969, and return on 3rd January, 1970.
The plaintiff went on the holiday, but he was very disappointed. He was a man of about 35 and he expected to be one of a house-party of some 30 or so people. Instead, he found there were only 13 during the first week. In the second week there was no house-party at all He was the only person there. Mr. Weibel could not speak English. So there was Mr. Jarvis,in the second week, in this hotel with no house-party at all, and no one could speak English, except himself. He was very disappointed, too, with the sking. It was some distance away at Giswil. There, were no ordinary length skis. There were only mini-skis, about 3 ft. long. So he did not get his sking as he wanted to. In the second week he did get some longer skis for a couple of days, but then, because of the boots, his feet got rubbed and he could not continue even with the long skis. So his sking holiday, from his point of view, was pretty well ruined.
There were many other matters, too. They appear trivial y when they are set down in writing, but I have no doubt they loomed large in Mr. Jarvis's mind, when coupled with the other disappointments. He did not have the nice Swiss cakes which lie he was hoping for. The only cakes for tea were potato crisps and little dry nutcakes. The Yodler evening consisted of one man r. from the locality who came in his working clothes for a little while, and sang four or five songs very quickly. The Alphutte Bar was an unoccupied annexe which was only open one evening. There was a representative, Mrs. Storr, there during the first week, but she was not there during the second week.
The matter was summed up by the learned judge: "During the first week he got a holiday in Switzerland which was to some extent inferior …. and, as to the second week, he got a holiday which was very largely inferior" to what he was led to expect.
What is the legal position? I think that the statements in the brochure were representations or warranties. The breaches of them give Mr. Jarvis a right to damages. It is not necessary to decide whether they were representations or warranties: because since the Misrepresentation Act, 1967, there is a remedy in damages for misrepresentation as well as for breach of warranty.
The onequestion in the case is: What is the amount of damages? The judge seems to have taken the difference in value between what he paid for and what he got. He said: "I intend to give the difference between the two values and no other damages under any other head". He thought that Mr. Jarvis had got half of what he paid for. So the judge gave him half the amount which he had paid, namely, £31.72. Mr. Jarvis appeals to this court. He says that the damages ought tohave been much more.
There is one point I must mention first. Counsel together made a very good note of the Judge's judgment. They agreed it. It is very clear and intelligible. It shows plainly enough the ground of the judge's decision: but, by an oversight, it was not submitted to the judge, as it should have been: see Bruen v. Bruce (1959) 2 All England Reports, page 375. In some circumstances we should send it back to the judge for his comments. But I do not think we need do sohere. The judge received the notice of appeal and made notes for our consideration. I do not think he would have wished to add to them. We will, therefore, decide the case on the material before us.
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 Hamblin v. G. V. R. 1 H. & N. at page 441, Chief Baron Pollock said that damages cannot be given "for the disappointment of mind occurring by the breach of a contract". And in Hobbs v. London & South Western Railway (1875) Law Reports 10 Queen's Bench, at page 122, Mr. Justice Mellor said that "for the mere inconvenience, such asannoyance 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 England Reports, page 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 shod: 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 that time. He ought to be compensated for the loss of it.
A good illustration was given by Lord Justice Edmund Davies in the course of the argument. He put the case of a man who has taken a ticket for Glyndbourne. It is the only night on which he can get there, He hires a car to cake him. The car does not turn up. His damages are not limited to the mere cost of the ticket. He is entitled to general damages for the disappointment he has suffered and the loss of the entertainment which he should have had. Here, Mr....
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