Nervous Shock and Alcock: The Judicial Buck Stops Here
| Date | 01 September 1992 |
| Published date | 01 September 1992 |
| DOI | http://doi.org/10.1111/j.1468-2230.1992.tb02844.x |
September
19921
Measures in Misrepresentation
for a similar sum, not the profits which the defendant’s business might have made
if the defendant’s customers had continued
to
patronise that salon
-
that latter profit
would only have been recoverable
if
the misrepresentation had been a warranty by
the defendant.
The decision emphasises how thin the line between contractual damages and deceit
damages can be. In impinging on traditional contract areas of damages, the case
gives the impression at least of bringing damages in deceit closer to contractual
damages. Profits are, after all,
so
closely tied in with the notion of expectation
-
of the reward for the risks that one takes in entering into a contract
-
that it is
difficult to classify them as a loss (from detrimental reliance) rather than as a potential
gain (from bargain). It could be argued that,
if
other cases follow
East
v
Maurer,
it
will eventually be possible
to
get
loss
of bargain damages under section
2(
1)
after
all. However, despite the slippery aspects of classifying financial loss,
it
is possible
to distinguish in some cases between profits lost as a result of reliance as opposed
to those lost as part of the bargain, and
it
seems sensible that the reliance
loss
should
also be protected; if
so,
the ‘out
of
pocket
loss’
formula emphasised in the case
may serve to differentiate the two. The case may indeed actually sharpen the
distinction between damages in deceit and in contract: it represents a helpful illustra-
tion for assessing consequential damages in the two differing ways and a practical
example of what falls
to
one side
of
the line (into deceit) as opposed to the other
(contract). Practical examples will be particularly valuable
of
course if the deceit
rule is now to provide the basis for assessment of damages in misrepresentation
generally.
Finally,
East
v
Maurer
also demonstrates another practical point about damages:
Beldam
W
reiterates the view that, however precisely the principles are stated, there
is little or no science about putting principles into practice in particular cases. He
repeats Winn
LJ’s
statement in
Doyle
v
Olby
that the amount has to be considered
as a ‘jury assessment’
-
assessed in the round, rather than arithmetically; principles
are only the starting point. Perhaps this is inevitable, but, given the proliferation
of principles, it is rather disturbing. If, despite the complexity and intricacy of the
rules for damages for misrepresentation, the rules can only provide the starting point
for a wide discretion, the endeavour to distinguish between the remedies and
to
refine the principles may seem a rather pointless exercise.
Nervous Shock and
Akock:
The Judicial Buck
Stops
Here
K.J.
Nasir”
The recent House
of
Lords decision in
Alcock
v
Chief Constable
of
the South Yorkshire
Police,’
denying relief to relatives of victims of the Hillsborough disaster, who
suffered psychiatric illness through nervous shock incurred (in most cases) by
witnessing the scenes on television and subsequently being informed of the relevant
victim’s death, raises two important issues. First, should direct perception of an
accident or its immediate aftermath be a condition of recovery? Second, does watching
*London.
I
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All
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907.
705
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